General introduction into the topic/Thesis
The history of the formation of the principles and norms of international law, applicable in armed conflicts, shows that it took thousands of years for the legal provisions in question to attain the status of being universally recognised. After all, it now represents a well-established fact that people have been striving to ensure that wars are waged in the most ethically sound manner since the time of antiquity. In this regard, one can mention the ancient legal manuscript Manusmriti (written around 1200 BC), which contained provisions against shooting poisonous arrows at the enemy. The Book of Deuteronomy (in the Old Testament) also insisted that during the war, the conflicting parties should refrain from killing women and children.
Throughout the Middle Ages, it used to account for a commonplace assumption amongst monarchs that there can be no excuse for poisoning welds and demolishing churches as a part of waging a war. Nevertheless, it was namely the signing of the Peace of Westphalia in 1648 that created the objective preconditions for the term “war crime” to attain a legal sounding through the centuries to come. The reason for this is apparent: the concerned development made possible the eventual conceptualisation of the term “international law” as we know it.
Thus, it will be appropriate to suggest that the discursive significance of the notions “war crime” and “crime against humanity” should be discussed in conjunction with what accounts for the overall principles of historical progress. This coursework will explore the validity of the above-stated at length while promoting the idea that the main prerequisite for reducing the number of war crimes that continue to take place in the world is ensuring the functional practicality of international law, as the guiding principle of international relations (IR).
Issues
The last few decades saw the establishment of a number of international judicial entities on the mission of persecuting the perpetrators of war crimes. Among the most notable of the judicial entities in question are commonly listed the International Criminal Tribunal for former Yugoslavia (ICTY), International Criminal Tribunal for Rwanda (ICTR), and International Criminal Court (ICC). This, however, did not seem to make the perpetration of war crimes any less of a commonplace occurrence.
Such a situation may seem illogical, but a deeper analysis of the issue will reveal that the very specifics of the geopolitical climate on the planet, as well as the realities of Globalisation, undermine the effectiveness of the mentioned bodies’ functioning to a considerable extent. In this regard, one will need to mention the rise of non-state actors as the quasi-legitimate entities within IR, the ongoing privatisation of the public domain in the West, and the gradual delegitimation of the very concept “international law”.
What contributes to the problem, even more, is that the current confrontation between the collective West, on the one hand, and Russia and China, on the other, renders obsolete even the basic assumptions about the nature of IR that used to be deemed thoroughly legitimate 15-20 years ago. However, it was namely throughout the late 1990s and early 2000s that the UN Security Council has come up with the bulk of its legal initiatives, meant to ensure the swift and effective persecution of war criminals.
As a result, more and more people around the world begin to experience a certain doubt about whether the concerned judicial bodies are as impartial as their spokesmen claim. Evidently enough, this cannot have any other but a strongly negative effect on the cause of preventing war crimes from taking place in the future. Therefore, there is indeed an objective necessity to conduct a further research on the contemporary peculiarities of how the international community defines war crimes/crimes against humanity and what kind of influencing forces are at play in this regard.
Structure
The following outlines the proposed structural approach to analysing the subject matter in question. Chapter One will discuss at length the legal implications of the term “war crime” and outline the socio-political preconditions behind the term’s incorporation into the procedural framework of international law. Chapter Two will be dedicated to the discussion of what sets apart the concepts of “war crime” and “crime against humanity”, in the legal sense of this word. This specific Chapter will also examine the effects of the current geopolitical situation in the world on the enactment and enforcement of different war crime-prevention legislations.
Chapter Three will examine the qualitative aspects of how the earlier mentioned judicial establishments (as well as others) go about persecuting war criminals and expound on the outcomes of the most notable trials that have taken place under the auspices of international military tribunals (IMTs) in the past. The concluding Chapter will be concerned with the discussion of what undermines the practical effectiveness of the way in which the international community persecutes war criminals and the author’s summative remarks about what accounts for the overall significance of the acquired insights into the topic.
War crimes under the contemporary international law
The contemporary international law, with respect to war crimes and international crimes, is reflective of the Articles 6, 7, 8 and 21 of the Rome Statute of the International Criminal Court (adopted in 1998). The ICC is much different from the ad hoc international tribunals of the past in the sense that it has been established on a permanent basis with the sphere of the Court’s legal jurisdiction not being geographically limited. As Knoops noted:
The ICC is created on the basis of a complex and detailed treaty granting it the power to try and punish the most serious violations of international humanitarian law and human rights law, in the event domestic criminal law systems are not able to prosecute or fail to do so.
In its turn, the Rome Statute was brought into existence as a logical outcome of the term “war crime” having undergone a certain transformation since the end of the WW2. In this regard, one must mention the 1945 Charter of the International Military Tribunal (IMT), the 1946 Resolutions 3 and 95 of the General Assembly of the United Nations, the main provisions of the 1949 Geneva Convention, and the 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity.
In the broadest sense of this word, a “war crime” is understood to be resulting from the “grave breach” of the rules of conducting an ethically sound warfare, specified by the 1907 Hague Convention, 1949 Geneva Convention and the 1949 Geneva Convention’s Protocols I, II, and III. Nevertheless, there are three basic preconditions for such a breach to be consistent with how the mentioned primary sources define a war crime. According to the Elements of Crime (EOC) index (an integral part of the Rome Statute), the persecution must prove beyond any reasonable doubt that the defendant deliberately participated in committing a particular crime that he or she is being accused of.
It must also be proven that the defendant has been fully aware of what was going to account for the actual consequences of his or her conduct, ‘This would describe the situation where it was the accused’s aim or objective to cause the result… a person is taken to intend a consequence when he or she ‘is aware that it will occur in the ordinary course of events’. Moreover, the accused must also be proven mentally adequate so stand a trial in the first place. At the time, the EOC stresses out that the perpetrator’s eligibility to be tried by the ICC is irrespective of whether he or she has been aware of the actual nature (international or non-international) of the armed conflict and of the accused individual’s personal view on the conflict’s origins and significance.
Primary sources
As it was implied earlier, it is specifically the Rome Statute of 1998 (Articles 6, 7 and 8) that provides the most up-to-date classification of war crimes. As of the year 2009, there have been fifty war crimes listed and described at length throughout the mentioned Articles. The foremost requirement for a crime to be assessed within the definitive framework of the EOC is that its perpetration has taken place as a part of an armed conflict, regardless of the international or non-international nature of the latter. The legal document in question does not only contain the detailed descriptions of each of the listed crimes, but it also specifies what should be considered circumstantial evidence of these crimes having been perpetrated:
The Elements of Crimes shall assist the Court in the interpretation and application of Arts. 6, 7, and 8… The EOC will guide the future judges and will therefore be of crucial importance for the work of the ICC in the interpretation of the provisions on crimes. The actual list of war crimes (specified by both the Rome Statute and EOC) is rather extensive. Nevertheless, it is still possible to classify the contained listings as such that belong to the following discursive categories:
Crimes committed against individuals that do not take an active part in armed hostilities
These war crimes have traditionally accounted for the most commonplace ones. Prisoners of war and civilians (including women and children) are particularly likely to fall victims in this regard. Such crimes are commonly discussed as such that represent “grave breaches” of the 1907 Hague Convention. They have been additionally specified by Article 6 of the Nuremberg Charter of 1945. These include murdering civilians en masse, subjecting them to an unnecessarily cruel treatment, conducting biological experiments on war prisoners/civilians, and destroying civilian infrastructural objects and/or using them for military purposes.
One can also be charged with having perpetrated a war crime by committing the acts that subject civilians to starvation (as a warfare method) and deprive them of the items necessary for survival. This includes creating obstacles to the provision of assistance by a third party.
Being primarily concerned with the killing of the wounded and sick prisoners of war, the crime of wilful killing (Article 8(2)(a)(i) of the Rome Statute) is perfectly illustrative as a “classical” war crime. Within the Statute’s legal framework, the word “killing” is usually interpreted as such that denotes “causing death”. This, in turn, presupposes that this particular crime can be committed by omission. The same applies to other notable crimes within the category, such as forcing civilians to perform military duties with a hostile army, ordering them to be deported, seizing their property, and denying the right of a fair trial to those arrested under martial law.
Crimes against enemy combatants or civilians, committed by mean of resorting to the prohibited methods of warfare
The latter include the deployment of poison and poisoned weapons that may cause unnecessary suffering in victims, as well as the deployment of chemical and biological ordnances. A war crime is also considered to be the use (even if limited) of the specific types of conventional weapons that cause excessive/indiscriminate damage, such as cluster bombs, and the use of anti-personnel mines disguised as household items. In this respect, one should also mention launching an indiscriminate attack that is likely to affect civilians/civilian objects, as well as attacking military installations or structures when it is known that such an attack will result in causing the excessive loss of lives and/or damaging the civilian infrastructure in the immediate vicinity.
Crimes concerned with attacking persons, organisations and objects that enjoy special protection under international law
In this respect, a crime is considered the act of deliberately striking personnel, facilities, materials, units or vehicles involved in the provision of humanitarian assistance or on a peacekeeping mission, in accordance with the UN Charter. The category in question also encompasses the crimes of attacking churches, educational institutions and hospitals, and destroying historical monuments. Those who situate military installations in the civilian areas are to be charged with committing a war crime as well.
As the Article 8(2)(b)(xxiii) of the Rome Statute refers to it, ‘The perpetrator moved or otherwise took advantage of the location of one or more civilians or other persons protected under the international law of armed conflict in order to fulfil the actus reus of the offence’. Some of the Statute’s signatories (such as France) have declared that carrying out military missions, on their part, will take place irrespectively on the presence of any “human shields” in the vicinity of the targeted installation.
It is also possible to classify war crimes in a more conventional manner. That is, in conjunction with what accounts for their formal subtleties and the legal history of their enactment under the auspices of the Rome Statute. There will still be three distinct categories to such a classification. They can be formulated as follows: grave breaches (Articles 8(1) – 8(2)(a)(viii)), offences in international conflicts (Articles 8(2)(b) – 8(2)(b)(xxvi)), and offences in non-international conflicts (Articles 8(2)(c) – 8(2)(e)(xii)). Among the above-outlined categories, the one concerned with offences in international conflicts is the most extensive.
Nuremberg/Tokyo Trials and their significance
The modern history of bringing to justice the perpetrators of war crimes dates back to the end of the WW2 when the world became aware of the sheer scale of atrocities, committed by the Axis powers. After all, it was this particular development that has led to the commencement of both the Nuremberg and Tokyo Trials on an ad hoc basis in 1945 and 1946 respectively: the first International Military Tribunals (IMTs) in history.
The Nuremberg trial lasted through the years 1945-1946. The tried defendants accounted for the 24 high-ranking members of Nazi Germany’s government, out of which 19 have been found guilty of committing various war crimes as well as the crimes against humanity. They have consequently been sentenced to death by hanging in 1946. One of the defendants (German Goring) managed to commit a suicide just prior to his scheduled execution.
The Nuremberg trial is noteworthy for having incorporated the so-called “Nuremberg principles” into the very core of international law as we know it today:
- (i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances;
- (ii) Participation in a common plan or conspiracy for the accomplishment of the acts mentioned under (i).
Because of this development, countries are now being deterred from declaring a full-scale aggressive war on each other, as the most effective instrument of advancing their geopolitical agendas. The Nuremberg Trial also stands out, in the sense of having legitimised the principle of “control responsibility”, within the context of how war crimes are being masterminded and carried out.
Having been initiated by the International Military Tribunal for the Far East (IMTFE), the Tokyo Trial lasted through the years 1946-1948. All of the tried defendants (9 Japanese politicians and 18 military leaders) have been declared guilty and sentenced to death/lengthy terms and jail. It needs to be noted that, despite having taken an active part in the planning of Japan’s attack on Pearl Harbour in 1941, Emperor Hirohito has been declared immune to any possible accusations under the auspices of the IMTFE.
The Tokyo Trial did contribute rather substantially towards the development of international law, with respect to war crimes. Specifically, it helped to bring more legal clarity into how the provisions of the Geneva Conventions apply to the deployment of technologically innovative weapons, as a part of an international armed conflict.
The main criticism of the Nuremberg and Tokyo Trials has always been reflective of the assumption that, contrary to what the concept of impartial law stands for, both legal proceedings resulted in causing the notion of “international justice” to convey the message of “victor’s justice”, when ‘only one side to the conflict is being prosecuted (“the losers”), while the other side (“the victors”) evades prosecution, despite the fact that both sides to the conflict allegedly committed international crimes’.
In this regard, one can mention the fact that as soon as the main defendant at the Nuremberg Trial (German Goring) began to succeed in exposing judges’ hypocrisy, he was forbidden to make any more public statements in his defence. The same applies to the Tokyo Trial as well: after having incinerated close to 500.000 civilians in the cities of Hiroshima and Nagasaki by subjecting them to a nuclear bombing, the Americans did not have much of a moral right to accuse the Japanese of having committed war crimes, in the first place.
Nevertheless, it is indeed appropriate to refer to the legacy of both the Nuremberg and Tokyo Trials as such that even today defines the workings of international law to a considerable extent. That reason for this is apparent: the concerned developments created a legal precedent for the principle of jurisdictional extraterritoriality to define the discursive aspects of the IMTs’ functioning up until today. In this regard, the ICC stands out exemplary, ‘Under primacy, the state may lack an incentive to investigate or prosecute its officers and even if it does investigate or prosecute, the ICC will still be able to assume jurisdiction’. Moreover, the operational efficiency of the ICC appears to be hampered by essentially the same set of influencing factors as it used to be the case with IMTs of the past.
International crimes (e.g. “crimes against humanity”) and how they differ from war crimes
The first attempts to provide a legally binding definition of “crime against humanity” and incorporate it as a part of international law date back to the adoption of the 1907 Geneva Convention. Nevertheless, it was not up to the establishment of the Nuremberg Tribunal in 1945 that the concept in question attained a universally recognised legal sounding. According to the so-called Nuremberg Charter (introduced by the 1945 London Agreement), crimes against humanity account for, ‘Murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war… whether or not in violation of the domestic law of the country where perpetrated’.
The foremost prerequisite for a particular crime to be considered “international” is that it poses a grave danger to the well-being of humanity, as a whole. Probably the most definitive clue, in this regard, is the crime’s global magnitude, as well as the objective indications that it has been premeditated/planned on a governmental level. The most infamous of all crimes against humanity has been the extermination of six million Jews by the Nazis during the WW2.
Another indication of a crime against humanity is that its perpetration resulted in the victimisation of civilians. The EOC document lists sixteen major crimes against humanity: extermination, enslavement, deportation or forcible transfer, imprisonment or other severe deprivation of physical liberty, torture, rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, sexual violence, persecution, enforced disappearance of persons, apartheid, and other inhumane acts.
According to the statutes of the Nuremberg and Tokyo Tribunals, one can be charged with committing a crime against humanity irrespectively of whether the person’s actions violated the laws of the country (where the incident took place) or not, i.e. the criminalisation of the act is not required by national law. It may appear that the functioning of the ICC is not quite consistent with this particular provision, because the Court’s main operational principle is that of “legal complementarity”, ‘The
ICC applies a jurisdictional rule known as the rule of complementarity. Under this rule, the ICC may not prosecute a case that is prosecuted by a state’. Nevertheless, the very fact that the ICC operates on a permanent basis endows it with an international legal personality. The validity of this suggestion can also be shown, regarding the self-assumed obligations of the Rome Statute’s signatories to work on adjusting their national laws/legislations to be fully consistent with the Statute’s Articles.
It should be borne in mind that crimes against humanity have many similar characteristics with war crimes, which often makes the task of distinguishing them from each other somewhat of a challenge. For example, a mass killing of prisoners can be simultaneously classified as being both a war crime (under the Article 8(2)(a)(i) of the Rome Statute) and a crime against humanity (under the Article 7(1)(a) of the Rome Statute). There are, however, at least three distinctive markers for each type of crime.
First, unlike what it is the case with the perpetration of war crimes, the perpetration of a particular crime against humanity can take place in the absence of a formally declared war. The Rwandan genocide of 1994 is perfectly illustrative in this respect. Second, crimes against humanity are “systemic”, in the sense of being well premeditated, with the element of logistics playing an important role in how perpetrators go about advancing their murderous agenda.
For example, the German Nazis would not be able to succeed in exterminating quite as many Jews, had they not ensured the efficient functioning of the country’s railway system up until the very end of the WW2. Third, for as long as the victims of a particular international are concerned, their eligibility for protection/compensation has nothing to do with the specifics of these people’s national affiliation. This suggestion correlates well with what was the actual rationale behind the legal conceptualisation of the term “crime against humanity”: to prevent the premeditated acts of genocide from occurring in the future.
It is important to understand that the concerned concept continues to undergo a qualitative transformation as time goes on. Over the course of the last few decades, the list of international crimes, recognised by the Rome Statute’s signatories, has grown substantially. Hence, the comparatively recent addition of the crimes of forced pregnancy, enforced sterilisation, and sexual violence to the EOC index. In its turn, this points out to the fact that humanity’s present stance on the most heinous and anti-social crimes of a global magnitude is strongly affected by the sociocultural discourse of post-modernity. Because of it, it will only be logical to expect that the concept of international crimes (“crimes against humanity”) will continue to attain even more discursive subtleties in the future.
Entities and bodies responsible for the prosecution of committed war crimes
The modern aspects of how the international community goes about prosecuting war criminals are defined by the establishment of the ICTY (in 1993), ICTR (in 1994), and the sub-sequential adoption of the Rome Statute by country-signatories (in 1998), which made possible the founding of the ICC in 2000.
The ICTY has the mandate of the UN Security Council (Resolution No. 827, adopted on May 25, 1993). In this way, it differs from the ICC, created by an international treaty. The ICTY is in charge of prosecuting war crimes that took place on the territory of Yugoslavia since the time when this country began to disintegrate in 1991. According to the Tribunal’s statute, its territorial jurisdiction is limited by what used to be Yugoslavia’s national borders (with the exemption of Slovenia).
The ICTY was created in accordance with the ad hoc principle. The same can be said about the ICTR. This institution was brought into existence by the UN Security Council Resolution No. 955 on November 8, 1994, with its main objective having been the prosecution of those responsible for perpetrating the infamous Rwandan genocide.
The ICC is much different from the earlier mentioned judicial entities, in the sense of being the first permanent international justice body (created on the basis of a treaty between states) that functions in accordance with the principle of judicial extraterritoriality (although limited). The ICC has the status of an independent international organisation and is not a part of the UN. It is located in Hague, Netherlands. As of April 2017, 123 countries worldwide have ratified the Rome Statute, 31 have signed but not ratified, and 41 have not signed at all. A number of countries object the very idea of the ICC, as such that presupposes non-actuality of the principle of national sovereignty. The USA is the most ardent of them.
The ICC is best seen as the “last resort” of international law, with regard to the prosecution of war criminals. It is only to initiate a criminal investigation into a war crime if this cannot be done on a national level. Unlike the ad hoc tribunals created by the United Nations for Yugoslavia and Rwanda, the ICC leaves to the state the primary responsibility to investigate and prosecute international/war crimes.
Among the most notable defendants that have been tried and found guilty by the ICTY and ICTR since the mid-1990s, can be named Radovan Karadžić, Ratko Mladić, Slobodan Milošević (Serbs), Ferdinand Nahimana, Jean Bosco Barayagwiza, and Hassan Ngeze (Rwandans). Even though the ICC has been functioning on a full-time basis since 2002, there is currently only one person on its list of inductees: Thomas Lubanga Dyilo (a Congolese citizen, responsible for recruiting children into the army).
Obstacles
In light of what has been said earlier, there can be little doubt that humanity’s growing concern with war crimes/crimes against humanity has been predetermined by the objective principles of historical progress. At the same time, it would be wrong to assume that international law on war crimes/crimes against humanity will never cease becoming ever more extensive, as it has been doing since the mid-1990s until now.
One of the reasons for this is that as time goes on, more and more state-actors throughout the world refuse to recognise the legitimacy of the currently operating IMTs, especially that of the ICC. As it was pointed out earlier, the US Government paved the way in this respect, ‘George W. Bush formally renounced any U.S. obligations to the court (ICC) when it began operating in 2002’. Moreover, the US State Department is now claiming that America will criminally prosecute the ICC judges if they move to press any war crime charges against the US citizens.
To complicate the situation even further, Russia and China are now also refusing to cooperate with the ICC while regarding it (as well as the ICTY and ICTR) to be the instrument of “Western imperialism”. It must be noted that such a point of view on the actual significance of the judicial bodies in question is not altogether deprived of a certain rationale. After all, there is plenty of evidence as to the fact that the Western-led attacks on Yugoslavia in 1993, Iraq in 2003, and Libya in 2011, which resulted in the deaths of hundreds of thousands of civilians, constitute classical war crimes.
However, not even a single Western governmental official has been indicted for having given “go ahead” to these murderous attacks. Such a state of affairs, in this regard, could not have resulted in anything else but in undermining the discursive integrity of the very concept “international justice”.
The main driving force behind the described trend appears to be the gradual deterioration of international law as we know it, which in turn is reflective of the current dynamics in the domain of IR. The concerned term presupposes that the IR agents are willing to cooperate, within the context of how they address different challenges. Consequently, this implies that the former do not only enjoy full sovereignty, but also that the IR arena is essentially multipolar.
However, after the end of the Cold War, the collective West has found itself in the position of a unilateral arbiter of international relations. Hence, the formerly popular concept of a “new world order”, with the US being in charge of maintaining it. Moreover, during the last few decades, many America’s allies throughout the world have been deprived of their de facto sovereignty. Because international law presupposes the contractual essence of the relationship between countries, this naturally caused the concept of in question to be seen increasingly “outdated” in the US. There is no need for entering into such a relationship with the rest of international actors if their sovereignty is merely formal.
It is understood, however, that there can be no effective prosecution of war criminals for as long as the very term “international law” continues to become ever more legally irrelevant, with many of these criminals appearing to be immune. The situation with the former Prime Minister Tony Blair exemplifies the validity of this suggestion. Nevertheless, the ongoing geopolitical decline of the West implies that the outlined obstacles, in the way of ensuring the full viability of the mentioned justice bodies, will eventually be removed.
Conclusion
The acquired analytical insights into the subject matter suggest that there are two opposing forces at play, within the context of how the international community strives to reduce the incidents of war crimes that continue to take place across the world. On the one hand, more and more people grow increasingly aware of the acute danger that such crimes pose to humanity’s well-being. Partially, this explains the ICC’s recent initiatives for the inclusion of even more crimes in the EOC list.
On the other hand, however, the current state of international politics results in undermining the validity of the conventional outlook on what the concept of international law stands for, hence making the prosecution of war criminals ever more challenging. As of this point, it is impossible to provide a viable prediction for where the described problematic situation will lead to. After all, if the current worsening of the relationship between Russia/China and the US does result in triggering the outbreak of the WW3, it will endow the terms “war crime” and “crime against humanity” with a whole new meaning.
Nevertheless, there is good rationale to think of such a scenario as being rather unlikely, not the least due to the fact that, despite their operational ineffectiveness, the ICTY, ICTR and ICC (as well as others IMTs of the past) did contribute substantially into raising the public awareness about what constitute the objective preconditions for international crimes to be perpetrated, in the first place. This once again suggests that there was nothing incidental about how these justice bodies came into existence. The continuation of sociocultural progress on this planet depends heavily on whether humanity will be able eradicate war crimes as a part of warfare. This conclusion appears to be fully consistent with the paper’s initial thesis.
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