Post No.: 0781
Carrying on from Post No.: 0768, where we mentioned that we would take a look at how individuals who violate international law are prosecuted – the International Criminal Court (ICC) is a permanent and potentially universal judicial institution that has been established via a multilateral treaty, thus can potentially respond to violations of international law occurring anywhere in the world, or at least where States have ratified its statute. Ad hoc tribunals, meanwhile, are not established by a treaty, they are created to address a particular situation, and are only designed to be temporary. Regardless, both can prosecute alleged war criminals when it comes to those who commit serious breaches of IHL, or International Humanitarian Law.
International criminal courts or tribunals can also be created via bilateral agreements, with the terms negotiated between the United Nations and the concerned States – these are often called ‘hybrid’ tribunals or ‘mixed’ tribunals because they combine international and national systems of criminal law and procedure, and are composed of both international and local judges.
The ICC holds jurisdiction if someone (regardless of their nationality) commits a violation on the territory of a ratified member State, or alternatively if someone is a national of a ratified member State and commits a violation (regardless of where they are). However, if the UN Security Council (UNSC) refers a situation to the ICC, these preconditions don’t need to apply. A State that isn’t a party to the Rome Statute of the ICC can also voluntarily accept the ICC’s jurisdiction for a specific situation on an ad hoc basis.
It’s important to note that the ICC only has jurisdiction with respect to events that occur after a State has become a party to its statute, unless a State has made a declaration accepting the ICC’s jurisdiction retroactively (up to events that occurred after 2002 when the ICC first entered into force). It has the competence to try individuals for the international crimes of genocide, war crimes, crimes against humanity, and the crime of aggression. The ICC does not prosecute criminal offences drawn from domestic penal codes.
Briefly, genocide involves acts committed with the intent to destroy, in whole or in part, a national, ethnic, racial or religious group. Crimes against humanity involve acts committed knowingly as part of a widespread or systematic attack directed against any civilian population. The crime of aggression, which only came into force in 2018, involves using a State’s armed forces against the sovereignty, territorial integrity or political independence of another State. These three sets of crimes mainly concern matters of either human rights or jus ad bellum (determining whether a party was just for entering into a war).
War crimes are really the category of crimes that are most relevant to the context of jus in bello or IHL (determining whether a party’s conduct during a war was just) – or serious or grave violations that may have been committed within armed conflicts. A ‘serious’ violation is a breach of a rule that protects important values and involves grave consequences for the victims.
The list of crimes that constitute grave breaches of IHL depends on the convention or custom, and whether a conflict is by definition international or non-international – but examples of war crimes include direct attacks on civilians, torture, forced biological experiments, the unlawful destruction or appropriation of property, killing surrendered combatants, using child soldiers, taking hostages and summary executions. It doesn’t just include offences perpetrated against protected persons or protected properties but crimes against humanitarian assistance and peacekeeping operations, and crimes involving prohibited means and methods of warfare, too. They can be committed by members of armed forces or by civilians, against the members of armed forces, civilians or protected objects of the adversary. They are usually committed by members of the military under orders of their superiors. Political leaders are also often implicated. But to qualify as a war crime – as opposed to an ‘ordinary’ crime – the conduct must be closely related to the hostilities of an armed conflict. IHL applies in any armed conflict regardless of where it is, but only applies in situations of armed conflict.
The ICC may exercise jurisdiction in a situation if such a ‘situation’ is referred to it by a member State, by the UNSC, or if the ICC Prosecutor has initiated an investigation under it’s own impulse with the authorisation of the ICC Pre-Trial Chamber, which must determine whether there is a reasonable basis to proceed with the proposed investigation. However, the ICC is complementary to national/domestic criminal courts, which means that the ICC can and will only exercise its jurisdiction over a case if the State concerned is unwilling or unable to genuinely prosecute a case itself. Thus the preferable outcome is that a national/domestic court deals with an alleged international lawbreaker. But if it can’t or won’t, or won’t conduct genuine and effective proceedings, then the ICC will step in.
The credibility of the ICC – and the prosecuting of international humanitarian, and international human rights, law violations in general – has been questioned though. Many, mainly African, States have voiced their criticisms of the ICC because they believe it is wholly Caucasian-biased – they point out how African leaders almost always get investigated for international crimes whilst the likes of Tony Blair and George Bush didn’t. The US has tortured detainees at Guantanamo Bay, Abu Ghraib and Bagram, and has taken children away from their parents at the US/Mexico border, without the relevant leaders facing any legal consequences over those acts. Some member States of the EU have treated asylum seekers inhumanely along their coastal waters, even though these people have rights to seek asylum for coming from war-torn countries like Syria, Afghanistan, Iraq, Eritrea, Somalia and Sudan.
The UK is a founding, signed and ratified member of the ICC. The USA, as well as Russia, were each signatories at one time but have since informed the UN Secretary General that they no longer intend to be parties to the Rome Statute, and as such have no obligations towards it.
Those who cannot return to their home country because they fear persecution due to their race, religion, nationality, membership of a particular social group (such as according to their gender identity or sexual orientation) or political opinion – and their own government cannot or will not protect them from these dangers – are entitled to seek asylum elsewhere. If an asylum seeker receives refugee status, it means they can stay in their new country. Being allowed to seek asylum is a human right, and refugees have a right to international protection.
But when African migrants seek a better life in Europe, they face racism; yet it was apparently no problem when Europeans looted Africa, and even enslaved Africans, for their own economic benefit in history. The USA, UK, EU and Canada sanctioned China over human rights issues regarding the Uyghur camps but never did the UK, EU or Canada sanction the US over Guantanamo Bay, Abu Ghraib or Bagram. (The US even went to great lengths to have legal memoranda (‘torture memos’) written to justify its torture and inhumane treatment of detainees who were held without due process!) I was born and bred British but I’m sure that far less than half of the UK and US population even know what happened in the Chagos Archipelago due to so much finger-pointing at other countries and so little looking in the mirror i.e. domestic propaganda – from school level to general public discourse level, and from headline news coverage level to the government level – is rife in every single country in the world, not just ‘other countries’. And it might require an ‘internationalistic mindset’ rather than a ‘nationalistic mindset’ to realise this, such as after spending a while studying international law. Woof!
A counterargument, however, is that African States have themselves triggered the jurisdiction of the ICC. Many States nevertheless feel dispossessed of their sovereign power by a system of justice controlled by mainly Western countries. The permanent five (P5) members of the UNSC (China, France, Russia, the UK and the USA) each hold certain veto powers that no other State has, or can ever have. Critics argue that this is the main barrier against war crimes and other international crimes being implicated on individuals coming from these permanent member States and their allies. So is it about time to overhaul this lopsided system of ‘one rule for the strong (who then have a good chance of remaining powerful) and another rule for the rest’? Albeit how? China, Russia and the USA aren’t currently ratified members of the ICC either. Both these problems starkly arose regarding Russia and the full-scale Russian invasion of Ukraine in 2022.
More broadly speaking about IHL, some States criticise that the norms that influence the drafting of many IHL, as well as IHRL, provisions are Western-centric. Yet many countries from Africa and Asia have voluntarily agreed to sign up to them nevertheless. Is it anti-sovereign if a country voluntarily consents to be bound to a treaty? Having said that, there’s also customary international law that forms if particular treaties or practices are widely ratified or generally practiced across the world, and these laws are considered to apply to all States to the same effect whether or not they voluntarily sign or ratify a relevant treaty. A State can persistently object to being bound to a specific customary law though, apart from any of those that constitute general principles of international law that are considered non-derogable.
The value-for-money of the ICC has also been questioned. But trying high-level political or military figures for mass crimes over a long period of time can be difficult and time-consuming. Moreover – like international courts and tribunals in general – it is entirely dependent on the cooperation of States to arrest the accused and transmit evidence in a timely manner i.e. it does not have its own ‘global police force’ who can enter any country at will with an arrest warrant. International criminal justice mechanisms may therefore evolve in time in order to attempt to tackle these kinds of fuzzy challenges and more.
The principle of ‘universal jurisdiction’ does allow the domestic authorities of any State to investigate and prosecute individuals for certain international crimes even if they weren’t committed on its territory, by one of its nationals, or against one of its nationals. Every member State has a duty to prosecute, or find and extradite, alleged war criminals physically located on their territories. States are generally reluctant to do this though if the alleged criminal and crime has no link to them. And belligerent States usually don’t want to prosecute war crimes after they’ve reached a peace treaty because such prosecutions could disrupt the agreed peace process. This again uncovers a current challenge that the international criminal justice community possibly needs to tackle.
…But the advancement of IHL over the past century in particular has demonstrated that international law has grown up a lot, even though there is plenty of room still left to grow – which I think is a good point to conclude our exploration of the subject of International Humanitarian Law, which I’ve personally been enthralled by and I hope you have been too!
I wish for a world of total peace and pacifism but understand that this is foreseeably unrealistic – so when and where armed conflict happens, the arguably best thing to do in these circumstances is to try to protect those who don’t wish to take part in the hostilities and to reduce the superfluous suffering for those who do. And that’s what modern IHL is about.