War Crimes and the principle of Individual Criminal Responsibility...!!!

War Crimes and the principle of Individual Criminal Responsibility....
by Nirmala Chandrahasan*

As there has been much discussion on the above topic and interest has been further sparked by the recent arrest and on going trial of Radovan Karadzic before the war crimes tribunal in the Hague on charges of genocide, war crimes and crimes against humanity, committed in Bosnia Herzegovina during the civil war in the former state of Yugoslavia, and the arrest warrant issued by the ICC (International Criminal Court) for President Omar al Bashir of Sudan on charges of war crimes and crimes against humanity, committed in Darfur, I thought it might be useful to set out briefly what constitutes war crimes and the background to the setting up of the ad hoc criminal tribunals and the ICC, which is a permanent international criminal court.

These events have focused attention on the expanding jurisdiction of International humanitarian law (i.e. the laws of war), and on the principle of individual criminal responsibility, which makes it possible for high military and political figures within a state to be brought to trial for their actions. It also underlines the fact that International Humanitarian Law and the principle of individual criminal responsibility first enunciated at the Nuremberg and Tokyo military Tribunals after the second world war, are also applicable in internal armed conflicts within states. Although war between states except in self defence is prohibited under the Charter of the United Nations, wars are still prevalent. Within states internal conflicts have proliferated with or without the intervention of third states. The security of the state and restoration of public order often require the use of legitimate military action. IHL tacitly recognizes these concerns but balances this with concern for the welfare of the individuals who are the victims of the armed conflict. Hence the law of armed conflict is today known as international humanitarian law.

IHL revolves around two concepts. Firstly, that in a war it is necessary to distinguish between combatants and non combatants and secondly that there are limits to the means and methods of armed conflict. Hence, protection of the civilian population is one of the fundamental principles, together with the prohibition of the use of weapons that cause superfluous injury or suffering. The Geneva Conventions of 1949 set out what war crimes under the head of Grave Breaches are; these include among others, acts such as murder, rape, pillage and the recruitment of children. The rules in the 1977 Protocol 1, additional to the Geneva Conventions of 1949, are designed to reaffirm and strengthen the principles of customary international law.

In an effort to provide more effective protection for the civilian population, the basic rule is that attacks on civilian population and civilian objects are forbidden.

Armed conflicts often lead to large scale displacement of civilian populations and the creation of IDPs or internally displaced persons. The suffering and displacements can be minimized where both sides to the conflict observe the laws of war. The laws provide for civilians to be protected from attack in demilitarized zones and or corridors provided for them to leave the fighting zones. IHL prohibits the displacement of the civilian population for reasons related to the conflict unless the security of the civilians involved or imperative military reasons so demand. Should such displacement be carried out all possible measures shall be taken in order that the civilian population may be received under satisfactory conditions of shelter, health, safety and nutrition as per Article 17 of Protocol 11, additional to the Geneva Conventions, which relates to non international armed conflicts. This article which also reflects rules of customary international law is applicable even in the case of states who are not parties to this Protocol. Systematic and widespread violations directed against a civilian population would constitute Crimes against Humanity.

The Geneva Conventions of 1949 requires all state parties to enact legislation necessary to provide effective penal sanctions for persons committing or ordering to be committed, any grave breaches of the Conventions. Furthermore, the state parties are under an obligation to search for persons alleged to have committed such grave breaches and bring them regardless of their nationality before its own courts. It may also hand over such persons to another state provided such party has made out a prima facie case. Hence war crimes attract a universal jurisdiction. In 1945, after the conclusion of the second world war, military tribunals were set up at Nuremberg in Germany and Tokyo Japan, for the trial and punishment of the war criminals. The Tribunals had jurisdiction inter alia over war crimes which were defined as violations of the laws and customs of war (the Geneva Conventions had not yet been formulated) and crimes against humanity, which were defined as murder, extermination, enslavement ,deportation and other inhuman acts committed against a civilian population, before or during the war, and persecution on political, racial or religious grounds, whether or not in violation of the domestic law of the country where perpetrated. It was at these trials that the principle of individual criminal responsibility was developed and many high military and civilian officials were tried and punished. It may be noted that criminal responsibility was attributable not only to those giving orders to commit the crime or approving of such policies, but included those military or political officers who disregarded their legal duty to take adequate steps to secure the observance of and prevent breaches of the laws of war.

In the years after the Second World War the obligation to enact penal legislation and search out and punish war criminals set out in the Geneva Conventions, were for the most part observed in the breach, by states. It was nearly fifty years after the Nuremberg and Tokyo military tribunals that a Security Council sponsored ad hoc international criminal tribunal the ICTY, was set up in 1993 in the aftermath of the civil war in the Former Yugoslavia, and thereafter other criminal tribunals came to be set up. At present, Radovan Karadzic, who was President of the Bosnian Serb Republic (Srpska), and Commander in Chief is being tried. It is contended that he approved of the atrocities committed against civilians, such as the Srebenica massacre of Muslim men and boys, as part of a campaign of terror to demoralize and drive out the Muslims and Croats, during the course of the civil war in Yugoslavia. He is facing trial on charges of war crimes, crimes against humanity and genocide before the ICTY at the Hague. There are also 27 others facing trial in this court. Similarly, in the context of an insurgency in the Darfur region of Sudan, the President of Sudan, Omar al Bashir is accused of unleashing a campaign of terror designed to drive out and destroy the ethnic tribal population of this region and is charged with having committed war crimes and crimes against humanity.

Ad hoc special military tribunals have been set up in other parts of the world. In Rwanda, after the ethnic riots and genocide, the International criminal tribunal for Rwanda the ICTR was constituted under a Security Council Resolution in November 1994. A special tribunal for Sierra Leone was set up under a UN Security Council resolution in 2002 at the Hague. Currently, Charles Taylor, former President of Liberia is on trial in this Court. He is charged with crimes against humanity, war crimes and other serious violations of IHL which includes terrorizing the civilian population, collective punishments, rape and sexual slavery, and the use of child soldiers in the neighboring state of Sierra Leone, where he supported and backed the insurgent group RUF, which had carried out a brutal campaign. Other leaders of insurgencies and rebel groups have been indicted and are facing trial before the ICC. They are Thomas Lubanga Dyilo militia leader in the civil war in the Democratic Republic of Congo, Joseph Kony, leader of the Lords resistance Army, Uganda and Jean Pierre Bemba Gombo of the Central African Republic. These leaders are charged with crimes against humanity and war crimes including recruitment of children under 15 years of age.

The International Criminal Court (ICC) came into being in July 2002, when 120 nations voted in favour of the Rome treaty and the required number of ratifications by states was completed. The Court has jurisdiction over the crimes of genocide, crimes against humanity, war crimes and the crime of aggression The jurisdiction of the Court is complementary to that of states. Under the category of war crimes, it includes both the grave breaches of the Geneva Conventions and Protocols as well as serious violations of the laws and customs of war in respect of both international and non international armed conflicts. The statute of the Court states that such crimes can be committed not only under the direction of state officials but also by organizations of insurrectional or separatist movements, so that the above crimes committed by members of non state entities i. e. militant groups can also be brought within the Courts jurisdiction.

A case would be inadmissible if it is being investigated or prosecuted by a state which has jurisdiction over it, unless the state is unwilling or genuinely unable to carry out the investigation or prosecution. The determination of whether it has jurisdiction is made by the Court. The Court may exercise its jurisdiction where there is a referral of a situation to the Prosecutor by a State party, requesting the prosecutor to investigate, or a referral by the Security Council. The Prosecutor may also initiate prosecution on his own initiative, on the basis of information received. However, the Court has no jurisdiction in respect of a state which is not a party to the Rome Treaty except where there is a referral by the Security Council, or the state concerned voluntarily accepts such jurisdiction. Some of the states not parties to the Treaty are the USA, Russia, India China Israel and Sri Lanka. The cases before the Court currently are from African countries which have referred them to the Court namely the cases of Lubanga Dyilo, Joseph Kony, and Bemba Gemba, and is indicative of the fact that many African countries are cooperating with the ICC.

The matter of enforcement of IHL has been a weak point and the setting up of a permanent International Criminal Court and ad hoc criminal tribunals is helping the process of enforcement. However the absence of an international police force is still a major drawback as the Court has to depend on states to capture or hand over the indicted persons for trial, as in the case of the former President of Yugoslavia, Slobodan Milosovic, and Radovan Karadzic. The establishment of the ICC can, however, have the indirect effect of encouraging states to fulfil their obligations under the Conventions and pass enabling legislation, so that domestic courts can take up these matters, rather than have the ICC take over the case. Special tribunals within the domestic jurisdiction have been set up in Bosnia- Herzegovina, Iraq, East Timor and Cambodia.



*LL.B, LL.M, Ph.D, Attorney -at -Law


www island.lk