Hennie Strydom

Summary

This chapter introduces the idea of protection for non-combatants in armed conflicts and explains how international law can accomplish such protection. The Geneva Conventions and associated Protocols define the situations under which protection is indicated in both international and internal conflicts. Different protection is afforded to prisoners of war, wounded and shipwrecked, and displaced people. Certain means and methods of war are also proscribed. The responsibilities of states and of individuals are defined, as well as the conditions that constitute breaches of those responsibilities. War crimes, crimes against humanity, genocide and aggression are defined and mechanisms for the prosecution of state and individual transgressors are outlined. The key legal developments supporting human security include certain human rights, international humanitarian law, international criminal law, and good governance. The chapter concludes with a discussion of obstacles, particularly with respect to the responsibility to protect (R2P) and boundaries of state sovereignty.

Chapter Overview

6.1 Introduction

6.2 Situations in Which the Protective Measures Will Apply

6.3 Who and What Are Protected?

6.3.1 The Principle of Distinction

6.3.2 Prisoners of War

6.3.3 The Wounded, Sick and Shipwrecked, and Aid Agencies

6.3.4 Refugees and Internally Displaced Persons

6.4 Means and Methods of Warfare

6.5 Different Responsibility Regimes, Core International Crimes and Enforcement Options

6.5.1 State Responsibility

6.5.2 The Grave Breaches Regime

6.5.3 Individual Criminal Responsibility

6.5.3.1 The Core Crimes: War Crimes

6.5.3.2 Core Crimes: Crimes Against Humanity

6.5.3.3 Core Crimes: Genocide

6.5.3.4 Core Crimes: The Crime of Aggression

6.6 Conclusion: The Future of the Responsibility Regimes

Resources and References

Key Points

Extension Activities & Further Research

List of Terms

Suggested Reading

References

Bibliography

6.1 Introduction

As the preceding chapter (Chapter 5) made clear, few incidents have such a devastating impact on human lives than armed conflict between or inside countries. It is therefore understandable that we find, even in ancient times, rules and customs of warfare with a humanitarian purpose, namely to prevent unnecessary suffering in armed conflict situations and to provide protection for certain categories of persons, such as the wounded and the sick and those not taking part in the hostilities and who can be classified as non-combatants. Today these rules and customs are largely codified in the sense that they form part of multilateral international treaties or conventions binding upon the states that have become party to them and in some instances these treaties enjoy universal or near universal acceptance by the states of the world. We refer to this body of international law as international humanitarian law (IHL) or the law of war. It must be made clear at the outset though, that IHL is not concerned with the question whether an armed conflict or the resort to armed force is lawful or justifiable. That question is determined by other rules of international law which fall outside the scope of this chapter.

However, IHL applies the moment an armed conflict has started and its sole purpose is to regulate the way in which hostilities should be conducted with a view to save and protect those who are not or no longer directly participating in the hostilities and to place restrictions on the means and methods of warfare. A first question that arises is where do we find the principles or rules applicable in these situations? To answer this question it is necessary to note the way in which states create binding law in the international legal order. This can happen in two ways: first by way of a uniform practice or custom which states follow with regard to a specific matter and which they accept as binding law between them. A rule that has come about in this manner constitutes customary international law and is binding on all states, except on a state that has persistently objected to the customary law rule. Of greater importance in our day and age is the second way in which states create binding international law, namely by concluding multilateral international agreements, also known as treaties or conventions. Sometimes even existing customary international law principles are taken up in these treaties and become codified in that way. IHL, in particular, is one of those branches of international law that has been extensively codified by means of multilateral treaties over the last hundred and fifty years. The consequences of this codification process are twofold: firstly, there now exists a well-established body of law regulating state conduct in the course of an armed conflict. This body of law is extensively covered by the documents listed in Table 6.1.

The second consequence is that non-compliance with IHL principles by a state party (who acts through its armed forces) to the conflict, will result in the legal responsibility of the state, which is a form of civil liability, and placing an obligation on the state to make reparations. At the same time the individual(s) responsible for the breach of an IHL norm may be held criminally liable for the breach on the basis of individual criminal responsibility. These two forms of liability co-exist and the one does not exclude the other. These matters will be dealt with more fully, later on in this chapter.

6.2 Situations in Which the Protective Measures Will Apply

As indicated in the introduction, the main purpose of IHL is to provide protection for certain categories of persons and objects and to place certain restrictions on the means and methods of warfare. Before these matters are dealt with more extensively, it is first necessary to acquaint ourselves with the situations in which this body of law will find application. In this instance we should resort to the four Geneva Conventions of 1949 (Geneva Conventions I-IV, see Table 6.1), which constitute one of the major codifications of IHL with universal support. In Articles 2 and 3, common to all four conventions, three situations are listed, namely an armed conflict between two or more of the contracting parties (i.e. the typical international armed conflict situation); all cases involving a military occupation by one of the contracting parties of the territory, in whole or in part, of another contracting party; and armed conflicts not of an international character taking place in the territory of one of the contracting parties (i.e. the so-called internal armed conflict situation).

In 1977, the Geneva Conventions were supplemented by two Protocols. By virtue of Protocol I, Article 1(4), the protective measures of the Geneva Conventions and their supplementation by Protocol I, were extended to cover also “armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations …” The inclusion of wars of national liberation as a situation falling under the Geneva Conventions was, and still is, a controversial matter. The reason for this is that governments are often reluctant to recognise an insurgent movement as a “party to an armed conflict” and prefer to deal with insurgents in terms of ordinary national law, often classifying them as ordinary criminals or terrorists posing a threat to national security. This is further borne out by the fact that nineteen of the UN’s 193 member states have not yet ratified Protocol I, including the United States, Pakistan, India, Turkey, Thailand and Myanmar.

As far as internal armed conflicts are concerned, it must be noted that it is only Common Article 3 of the Geneva Conventions that specifically covers this type of conflict. The article’s protective measures extend to the humane treatment of the wounded and the sick and those not taking actively part in the hostilities, including members of the armed forces who have laid down their weapons; and the prohibition, under all circumstances, of acts involving violence to life and person, the taking of hostages, outrages upon personal dignity and the passing of sentences without due process. Common Article 3 also makes it possible for the parties to an internal armed conflict to bring into force, by means of special agreements, all or part of the other provisions of the Geneva Conventions.

Protocol II of 1977 has expanded on the definition of internal armed conflict by limiting it to conflicts taking place on the territory of a contracting party between the armed forces of the contracting parties and dissident armed forces or other organized armed groups “which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol” (Protocol II, Article 1(1). The threshold of control over a part of a state’s territory and the concomitant ability to carry out sustained and concerted military operations mean that conflicts falling below this standard will not be covered by IHL principles and will be dealt with in terms of the law of the land. As a consequence of this requirement, Article 1(2) of Protocol II explicitly excludes from the operation of the Protocol “situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.” The different situations here can be explained with reference to the Libyan conflict. Inspired by popular protests against undemocratic, oppressive regimes in Tunisia and Egypt, Libyan citizens took to the streets in February 2011 to protest against the dictatorial regime of Colonel Muammar Gaddafi who ruled over the Libyan people for 42 years. In an attempt to restore internal order, the Gaddafi regime responded with forceful action involving the police and armed forces. In the beginning this confrontation could be classified as a typical internal disturbance or spontaneous act of revolt (Protocol II, Article 1(2)) and as such fell outside the ambit of Article 1(1) of Protocol II. But the moment the protesters organized themselves as a rebel movement with a command structure, took up arms and started controlling parts of the Libyan territory an armed conflict within the meaning of Article 1(1) developed as a result of which the parties to the conflict had to conduct their hostilities in accordance with the laws and customs of war.

At this point it is appropriate to take note of the Martens Clause, which is considered to be part of customary international humanitarian law. This clause was inserted, on the initiative of Fyodor Fyodorovich Martens (1845-1909), one of Russia’s most respected international law scholars, in the preamble of the 1899 Hague Convention II containing the Regulations on the Laws and Customs of War on Land, and restated in the 1907 Hague Convention IV on the same matter. It now also forms part of the 1977 Protocol I to the Geneva Conventions. Article 1(2) states as follows: “In cases not covered by this Protocol or by any other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.” It should be clear from this formulation that the clause serves the purpose of covering situations which can be considered grey or not being covered unequivocally by some or other established treaty or customary law principle.

The clause was also considered by the International Criminal Tribunal for Yugoslavia (ICTY) in the case of The Prosecutor v Kupreskic (IT 95-16, Trial Chamber Judgement of 14 January 2000) where the accused persons were charged with crimes against humanity resulting from the persecution and deliberate and systematic killing of civilians during the Yugoslav war. As a result of the Martens Clause the Tribunal argued that although some countries have not ratified Protocol I, they may still be bound by general rules having the same purport, because of the way states and courts have implemented the clause, it clearly shows that “principles of international humanitarian law may emerge through a customary process under the pressure of the demands of humanity or the dictates of public conscience, even where State practice is scant or inconsistent” (para. 527). And elsewhere, following this argument, the Tribunal concluded that “[d]ue to the pressure exerted by the requirements of humanity and the dictates of public conscience, a customary rule of international law has emerged on the matter under discussion” (para. 531).

In concluding this part, three remaining issues must be addressed, albeit briefly. The first deals with the distinction made by the 1949 Geneva Conventions and the two Additional Protocols of 1977 between international and non-international armed conflicts with the vast majority of provisions in these instruments dealing with the former. In recent times this distinction has been subjected to criticism and reassessment, also because of the fact that the majority of armed conflicts in today’s world are internal in nature and causing a disproportionate number of civilian casualties and ill-treatment of civilians. The argument in favour of doing away with the distinction is based on the reasoning that restrictions on the conduct of hostilities and the need for measures to protect certain categories of persons in armed conflict situations exist regardless of the question whether the conflict can be classified as international or non-international. Put differently, it is the nature of the danger people are exposed to and not the formal classification of the situation that is decisive. Support for this argument is often based on Article 1, which in all four of the Geneva Conventions, determines that the “High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.”

The second issue relates to what has become colloquially known as the ‘war on terror’ after the 9/11 terrorist attacks in the United States and the United States’ military response to that attack. Much has been written on the matter and a contentious issue is whether we can classify the so-called ‘war on terror’ as an armed conflict in the legal sense of the word and to which IHL will apply. An immediate response should be that terrorist attacks will only be covered by IHL to the extent that they form part of an armed conflict, be it international or non-international. If not they could be classified as violent criminal acts and punishable in terms of the criminal laws of the country where they occur. Terrorist acts forming part of an armed conflict and involving attacks against civilians could qualify as indiscriminate attacks and therefore punishable as war crimes. From this it also follows that recourse to armed force against those responsible for terrorist actions as part of an armed conflict situation, will likewise be subject to the same rules as in any other armed conflict. A recent case in point is the military conflict involving the Islamic State (ISIS).

The last issue relates to the application of IHL principles in failed states. Of specific importance here is the situation where a government in de facto control of government functions reaches such a level of disintegration as a result of internal opposition and violence in the country that it is no longer in a position to perform ordinary governmental functions, and loses control over the exercise of law and order as well as other forms of authority. If the ensuing implosion of government structures coincides with the disintegration of the armed forces an anarchical situation arises characterised by a proliferation of armed factions, a breakdown in the chain of command within the various factions, and divisions in the control over the national territory.

In such situations, civilians are mostly at risk because they cannot rely on government intervention and protection of any kind and they often find themselves at the mercy of one or several of the splintered armed factions whose main purpose in such circumstances is often self-preservation and self-enrichment through crime and wanton violence. From a humanitarian point of view the paradox should be clear: as state structures collapse the reliance on humanitarian aid organisations increases but their interventions become more hamstrung when they cannot rely on the support and cooperation of the central authorities any more. One of the most serious humanitarian challenges identified by the International Committee of the Red Cross in these and other armed conflict situations is the violence against health care workers, facilities and patients. Data collected in sixteen countries between 2008 and 2010 have shown a clear pattern of violence aimed at hindering the delivery of health care, ranging from direct attacks on medical personnel and facilities to looting and kidnapping (ICRC, 2012).^[2]

In anarchical situations brought about by the collapse of authority and state structures humanitarian aid organisations have no choice but to establish and maintain contact with each of the factions involved in the conflict and to negotiate humanitarian spaces for civilians, the sick and the wounded. Precarious how this may be, such efforts and the concessions that may materialize from them are often the only hope for civilians and other vulnerable persons caught between the different armed factions. A fundamental question that arises in these circumstances is the applicability of IHL principles. Here we should invoke the provisions of Common Article 3 to the Geneva Conventions which oblige the parties to any non-international armed conflict to respect the humanitarian principles mentioned earlier on. Although Common Article 3 does not define the term “party to a conflict” it is generally accepted that to qualify as such, an armed group opposing a government must have at least a minimum degree of organization and discipline enabling them to respect IHL. However, since Common Article 3 has a broad humanitarian purpose an unduly restrictive interpretation of its meaning will run counter to the provision’s underlying spirit. Also relevant are the protective measures provided for in Protocol II to the Geneva Conventions on condition that the threshold requirement for the existence of an armed conflict situation referred to earlier on has been met. This means that dissident armed forces or other organized armed groups opposing the government must exercise such control over a part of the state’s territory as to enable them to carry out sustained and concerted military operations (Protocol II, Article 1(1)). Excluded from the operation of the Protocol will be internal disturbances such as riots and isolated and sporadic acts of violence (Protocol II, Article 1(2)). In this context reference should also be made to the following conclusion by the Appeals Chamber of the International Criminal Tribunal for Yugoslavia in the Tadić case:

we find that an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved. (Prosecutor v Tadić, IT-94-AR72, 1995, para. 70)

This understanding of the applicability of protective measures in internal armed conflicts must not detract from the difficulties presented by anarchical situations, especially with regard to the effective implementation of IHL norms. The following observation should therefore be taken note of:

The problem posed by this type of conflict is therefore not so much that of which norms are applicable as it is that of their implementation. This can be said of all national and international legislation applicable on the territory of the State which is disintegrating. Since by definition the disintegration of the State carries with it the risk of non-compliance with the entire corpus of the law, it is in the interest of the international community to make sure, by means of cooperation and in accordance with the UN Charter, that such “no-law” zones do not come into existence. (Sassòli et al., vol II, 2011, p. 679)

6.3 Who and What Are Protected?

6.3.1 The Principle of Distinction

It is a fundamental principle of IHL that parties to a conflict must at all times distinguish between combatants and civilians and between military objects and civilian objects and to refrain from attacks against civilians and civilian objects. It is therefore important to know who will qualify as a combatant in an armed conflict situation. For current purposes it would suffice to mention two of the main categories. All members of the armed forces of a party to the conflict as well as members of militias or volunteer corps forming part of such armed forces will be classified as combatants. In the second instance, members of other militias or volunteer corps will likewise qualify for combatant status provided that they fulfil the following conditions: they must be under a responsible command; must have a distinctive emblem recognisable at a distance; must carry their arms openly; and must conduct their operations in accordance with the laws and customs of war (see Geneva Convention III, Article 4). As a consequence of this classification, all persons falling into any of these categories have a legal duty to distinguish themselves from the civilian population during each military engagement and for the duration of the engagement.

In giving effect to this principle of distinction, Article 48 of Protocol I to the Geneva Conventions contains the following unequivocal provision: “In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objects and accordingly shall direct their operations only against military objectives.” On the basis of this rule, Protocol I outlaws acts or threats of violence which have the primary purpose of spreading terror amongst the civilian population; indiscriminate attacks which employ a method of warfare that causes incidental loss in civilian lives disproportionate to the military objective; acts of reprisal against the civilian population; or the shielding of military objects by means of the presence or movement of civilians (Article 51). Protocol I also lists the civilian objects that should remain free from military attacks and prescribes the duties parties to the conflict have with regard to the precautionary measures they must take in complying with their obligations in terms of the Protocol (see Chapters III and IV of Protocol I).

6.3.2 Prisoners of War

A combatant who falls into the hands of the enemy is entitled to prisoner of war status and to be treated accordingly. This matter is regulated by Geneva Convention III and the basic rule on the treatment of prisoners of war is found in Article 13 which states as follows:

Prisoners of war must at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present Convention. In particular, no prisoner of war may be subjected to physical mutilation or to medical or scientific experiments of any kind which are not justified by the medical, dental or hospital treatment of the prisoner concerned and carried out in his interest. Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity.

In following this basic point of departure, Geneva Convention III contains an extensive array of rules covering matters such as the internment of prisoners of war; disciplinary proceedings against prisoners of war, the capture and transmission of information about prisoners of war and their repatriation after the end of hostilities. Moreover, if there is doubt whether a person who has fallen into the hands of the enemy forces belongs to any of the prisoner of war categories, such person shall enjoy the protection afforded under Geneva Convention III until such time as their status has been determined by a competent tribunal (Article 5). Also to be noted is that under Article 8 of the Rome Statute of the International Criminal Court, certain acts against prisoners of war could constitute war crimes.

6.3.3 The Wounded, Sick and Shipwrecked, and Aid Agencies

Geneva Conventions I and II as well as Protocol I contain the rules for the protection of the wounded, sick and shipwrecked and extends the protection to medical personnel and facilities, administrative support staff and religious personnel. These categories of persons must not be attacked and must be allowed to perform their duties on the battlefield.

Linked to this are the measures in the Geneva Conventions and Protocols to protect in times of armed conflict the use of emblems such as the red cross, the red crescent and the red crystal and to keep free from attack facilities where these emblems are displayed. In times of armed conflict these emblems are used to provide protection of medical personnel and facilities and medical means of transport. It therefore stands to reason that their misuse or abuse, which may constitute a war crime, must be prevented.

6.3.4 Refugees and Internally Displaced Persons

International law on refugees is regulated by the 1951 UN Convention Relating to the Status of Refugees and its 1967 Protocol. In this context ‘refugee’ is defined in narrow terms, describing a person who has fled his or her country based on a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, and who, because of that fear is unable to return to his or her country of origin. However, it should be obvious to any observer of international events that armed conflicts are often the cause of large numbers of civilians fleeing to other countries to escape from hostilities and to find sanctuary elsewhere, quite often under auspices of the United Nations. It is therefore noteworthy that the 1969 Organisation of African Unity (OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa has adopted a wider definition of ‘refugee’ to include also those fleeing armed conflict situations. The provision is worded as follows:

The term “refugee” shall also apply to every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality. (Article 1(2))

Under IHL war refugees will be entitled to the protection available to civilians in times of armed conflict and may therefore rely on the protective measures of Geneva Convention IV and Protocol I if they find themselves outside their national state and on the territory of one of the other parties to the armed conflict. As such they will be classified as protected persons in terms of the Geneva Conventions and will also be entitled to seek assistance from the International Committee of the Red Cross or other aid agency. The party to the conflict in whose hands such protected persons find themselves remains responsible for their treatment irrespective of any individual responsibility which may be incurred (See Geneva Convention IV, Articles 4, 29, 30). This responsibility includes the responsibility to facilitate, under certain conditions, the rapid and unimpeded passage of all relief consignments, equipment and personnel, even if destined for the civilian population of the adverse party (see Protocol I, art 70). Preventing relief operations from taking place could constitute a war crime under Article 8 of the Rome Statute of the International Criminal Court.

As opposed to refugees, displaced persons are civilians fleeing within their own country to escape armed conflict. They are therefore entitled to the protection afforded them by Common Article 3 to the Geneva Conventions and Protocol II to the Geneva Conventions. Article 18(2) of Protocol II, for instance, stipulates as follows:

If the civilian population is suffering undue hardship owing to a lack of the supplies essential for its survival, such as foodstuffs and medical supplies, relief actions for the civilian population which are of an exclusively humanitarian and impartial nature and which are conducted without any adverse distinction shall be undertaken subject to the consent of the High Contracting Party concerned.

The issues here are well-illustrated by the response of the UN Security Council in 1991 to the repression of the Iraqi civilian population, including in the Kurdish populated areas, by Saddam Hussein’s regime which led to massive flows of refugees towards and across international frontiers. In resolution 177 (1991), the Security Council insisted that Iraq allowed “immediate access by international humanitarian organizations to all those in need of assistance in all parts of Iraq and to make available all necessary facilities for their operations …” (para. 3). In reaction to this resolution Operation Provide Comfort was launched, in which American, British and French armed forces established “safe havens” in northern Iraq, preventing military flights over the area and allowing Kurds to remain without fear of attack by Iraqi forces.

6.4 Means and Methods of Warfare

Apart from providing protection for civilians and other categories of protected persons during armed conflict, IHL also regulates the means used to conduct hostilities (means of warfare) and the way in which hostilities are conducted (methods of warfare). These matters are now subjected to three basic rules codified in Article 35 of Protocol I. This provision determines that (a) the right of the parties to an armed conflict to choose the means or methods of warfare is not unlimited; (b) it is prohibited to employ weapons and methods of warfare that would cause superfluous injury or unnecessary suffering; and (c) it is prohibited to employ means and methods of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment. In view of these restrictions states parties are under an obligation, when developing, acquiring or adopting new weapons, to determine whether such weapons will be prohibited by this Protocol (Article 36).

Under these rules the use of certain weapons will be prohibited in all circumstances because of their inherent characteristics and indiscriminate effects, in other instances the use of a certain weapon could be merely limited or restricted. To the first category belongs the use of expanding bullets, blinding laser weapons, poisonous gases, biological and chemical weapons, anti-personnel mines and cluster munitions.^[3] Viewed as being contrary to considerations of humanity the use of these weapons has over time become outlawed by means of specific multilateral treaty arrangements with the result that their use will constitute a war crime under current international criminal law. To the second category belong restrictions on the use of certain conventional weapons now governed by a series of Protocols annexed to the 1980 Convention on Prohibitions and Restrictions on the Use of Certain Conventional Weapons.

A case of a special kind is presented by nuclear weapons. That this is by definition a kind of weapon that would certainly fall foul of the object and purpose of Article 35 should not be in dispute. In 1996, the International Court of Justice rendered an advisory opinion in the famous Nuclear Weapons case on the question—submitted to the Court by the General Assembly of the United Nations—whether the threat or use of nuclear weapons can in any circumstances be permitted under international law. In its analysis of international humanitarian law and principles the Court concluded that the “principles and rules applicable in armed conflict—at the heart of which is the overriding consideration of humanity—make the conduct of armed hostilities subject to a number of strict requirements.” Following this logic, the Court then reasoned that “methods and means of warfare, which would preclude any distinction between civilian and military targets, or which would result in unnecessary suffering to combatants, are prohibited.” Consequently, because of the “unique characteristics of nuclear weapons … the use of such weapons in fact seems scarcely reconcilable with respect for such requirements” (ICJ Reports 226, 1996, para. 95). However, in the final analysis, the Court, having considered what it called the “present state of international law,” reached the conclusion (by the casting vote of the President of the Court!) that it could not reach a definitive conclusion as to the legality or not of the use of nuclear weapons by a state “in an extreme circumstance of self-defence, in which its very survival would be at stake” (para. 97). In instances not involving this extreme position the Court was unanimous in its opinion that the threat or use of nuclear weapons should also be compatible with the requirements of international law applicable in armed conflict, particularly “those of the principles and rules of international humanitarian law …” (para. 97D).

Another issue under this theme is the increasing development and potential use by a growing number of states of ‘lethal autonomous weapon systems,’ which refers to weapon systems that function without meaningful human control over the critical functions of selecting and detecting individual targets. Because of the human rights and international humanitarian law implications of the use of such weapon systems, among others, the matter has featured for some time on the agenda of the UN Human Rights Council and other UN Bodies (see for instance UN Human Rights Council Documents A/HRC/23/47 of 9 April 2013 and A/HRC/26/36 of 1 April 2014) and has attracted volumes of scholarly contributions in recent times on the legal, moral and ethical implications of the use of such weapons with some calling for an outright international ban on such weapon systems.

On 12 September 2018, the European Parliament adopted a resolution (2018/27529RSP) calling on member states and the European Council to adopt as a matter of urgency a common position on lethal autonomous weapon systems that ensures meaningful human control over the critical functions of such systems. The resolution also raised concerns that the development of these weapon systems could prompt an unprecedented and uncontrolled arms race and about the implications of their use for key questions of international human rights and international humanitarian law. In response to this resolution a report was published in November 2018 indicating that there is an emerging consensus between European states that meaningful human control over the use of force should be retained, especially with regard to critical functions such as selecting and attacking targets, that human control is a prerequisite for compliance with international humanitarian law and as a way of ensuring accountability. ^[4]

When we speak about methods of warfare we have in mind certain tactical or strategic considerations meant to outweigh or weaken the enemy. In this case too, the methods of warfare are not unlimited and methods causing unnecessary suffering or superfluous injury will be prohibited. It is now well established that the following are forbidden: giving or ordering no quarter, pillaging, perfidious conduct (misuse of a flag of truce or other protected emblem) and starvation of civilians.

6.5 Different Responsibility Regimes, Core International Crimes and Enforcement Options

6.5.1 State Responsibility

The traditional approach to international law considers violations of IHL to be committed by states and for that reason state parties incur certain responsibilities with regard to measures that must be taken to prevent and repress transgressions. This is also clear from the first article to the Geneva Conventions and Protocols clearly stating that the High Contracting Parties “undertake to respect and to ensure respect” for the Conventions and Protocols “in all circumstances”. It is also important to note that in terms of the Geneva Conventions no state party shall be allowed to absolve itself or any other state party of any liability in respect of grave breaches (see below) under the Conventions (See Geneva Conventions I-IV, Articles 51, 52, 131, 148 respectively). Under Article 91 of Protocol I to the Geneva Conventions a state party to a conflict who has violated the provisions of the Conventions or of the Protocol will be liable to pay compensation and will be held responsible for all acts committed by persons forming part of its armed forces. This rule is in keeping with the general international law principles on state responsibility and entails that the state responsible for the violation (by virtue of the actions of its armed forces) must compensate the state injured by the violation and not the individual victims of the violation. This rule is at variance with human rights law which normally requires that the individual harmed is entitled to an effective remedy.

A first obligation that arises for state parties in the case of a breach is to institute an enquiry into the breach once any other state party to the conflict has requested such an investigation and the parties have agreed on the procedure to be followed. Once the violation has been substantiated by means of the enquiry, the parties to the conflict are obliged to put an end to it and to repress it with the least possible delay (Geneva Conventions I-IV, Articles 52, 53, 132, 149 respectively).

These mechanisms have been supplemented by Protocol I to the Geneva Conventions in two ways. In terms of Article 89 of the Protocol the parties to the Protocol undertake, in the case of serious violations of the Conventions or of the Protocol, to act, jointly or individually and in cooperation with the United Nations, against the violations. For this purpose Article 90 provides for the compulsory establishment of an International Fact-Finding Commission to enquire into any facts alleged to have constituted a grave breach of the Conventions or the Protocol. However, the use of this mechanism by a state party to investigate allegations against another state party is subject to the depositing of declarations by both parties reciprocally accepting the competence of the Commission to enquire into the allegations.

6.5.2 The Grave Breaches Regime

Certain violations of IHL are considered to be so serious that they fall under a special regime in terms of the Geneva Conventions and additional Protocol I and in terms of which states parties incur special responsibilities. These violations are known as grave breaches and involve acts against protected persons or property amounting to “wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly” (Geneva Convention I, Article 50. See also Geneva Conventions II-IV, Articles 51, 130, 147 respectively). Article 85 of Protocol I has expanded on this and “grave breaches” will now also include attacks on the civilian population; indiscriminate attacks affecting the civilian population in the knowledge that such attacks will cause excessive loss of life or damage to civilian objects; attacks against works or installations containing dangerous forces knowing that such attacks will cause excessive loss of life or damage to civilian objects; making non-defended localities and demilitarized zones the object of attack; making persons who are no longer participating in hostilities the object of attack; the perfidious use of the distinctive emblem of the red cross, red crescent or red lion and sun or other recognised protective sign, etc.

In these instances state parties are obliged to enact legislation necessary to provide effective penal sanctions for persons responsible for these breaches. Secondly, state parties must search for persons alleged to have committed these breaches and prosecute them before their own courts, regardless of the nationality of the offender. If it so wishes, a state party may also hand an offender over to another party for prosecution provided that the other party has made out a prima facie case against the offender. In addition, states parties must take measures necessary for the suppression of all violations of the conventions and the protocol (Geneva Conventions I-IV, Articles 49, 50, 129, 146 respectively; Protocol I, Articles 85, 86).

These provisions form the basis of the current international criminal law regime providing for individual criminal responsibility for war crimes, as opposed to state responsibility, and for the prosecution, before national or international tribunals, of individual offenders. The grave breaches provisions also base prosecutions in the national courts of the states parties on the concept of universal jurisdiction. This means that any state, regardless of the nationality of the offender or the place where the violation occurred could establish its national jurisdiction over the matter by means of national legislation and institute a prosecution against the offender once arrested on, or transferred to, the territory of the state willing and able to prosecute.

6.5.3 Individual Criminal Responsibility

Since the Nuremberg (Nürnberg) trials immediately after WWII the concept of individual criminal responsibility for what is generally referred to as the violations of the laws and customs applicable in armed conflict situations, has become firmly established. This development has greatly benefitted from the establishment of the two ad hoc tribunals, the International Criminal Tribunal for Yugoslavia (ICTY) in 1993 and the International Criminal Tribunal for Rwanda (ICTR) in 1994, and most definitely from the establishment in 1998 of the permanent International Criminal Court (ICC). On occasion, the potential impact of the developments that evolved since WWII in this area has elicited the following comment:

The regular prosecution of war crimes would have an important preventive effect, deterring violations and making it clear even to those who think in categories of national law that IHL is law. It would also have a stigmatizing effect, and would individualize guilt and repression, thus avoiding the vicious circle of collective responsibility and of atrocities and counter-atrocities against innocent people. Criminal prosecution places responsibility and punishment at the level of the individual. It shows that the abominable crimes of the twentieth century were not committed by nations but by individuals. By contract, as long as the responsibility was attributed to States and nations, each violation carried within it the seed of the next war. That is the civilizing and peace-seeking mission of international criminal law favouring the implementation of IHL. (Sassòli et al., 2011, vol I, p. 396)

We have now reached a point where international criminal law can claim to have produced a well-developed set of substantive principles and procedural rules by means of which the effective prosecution of the most serious crimes of concern to the international community can be undertaken with a view to bringing to an end impunity for the perpetrators of such crimes. What follows is a general overview of the crimes considered to be of the most serious concern for the international community and over which each state is supposed to exercise its jurisdiction. For this purpose, and in view of limited space, the focus will be on the provisions of the 1998 Rome Statute of the International Criminal Court, which brought into being the ICC and which determines the Court’s powers, functions and jurisdiction. Article 5(1) of the Rome Statute states that the Court’s jurisdiction will be limited to the crime of genocide; crimes against humanity; war crimes; and the crime of aggression. At the time when the Rome Statute was negotiated some states wanted terrorism and international drug trafficking to be included as well, but this attempt was unsuccessful.

6.5.3.1The Core Crimes: War Crimes

As indicated earlier on, what we refer to today as war crimes are closely related to the grave breaches concept in the Geneva Conventions and in Protocol I. In Article 8(2) of the Rome Statute we find different categories of war crimes, each one containing a long list of acts which can be prosecutable as war crimes. Under the first category (Article 8(2)(a)) “war crimes” means grave breaches of the four Geneva Conventions. The second category (Article 8(2)(b) identifies “war crimes” with “other serious violations of the laws and customs applicable in international armed conflict” which are given further substance by means of a list containing twenty acts that will constitute “war crimes” under this category. An important third category relates to acts committed in an armed conflict not of an international character (Article 8(2)(c) and (e)), i.e. the so-called internal armed conflict situation. The acts that will constitute war crimes under this category are those mentioned in Common Article 3 to the Geneva Conventions and which have been dealt with earlier on. However, there is also a second, more extensive list of acts which will amount to war crimes when committed in a non-international armed conflict according to the Rome Statute. This list mentions, amongst others, armed attacks against civilians and against personnel and facilities involved in humanitarian assistance; attacks against educational, religious, scientific and cultural facilities; pillaging of a town or place; and most importantly acts of rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization and any other form of sexual violence, and the conscripting or enlisting of children under the age of fifteen into the armed forces or armed groups. These latter additions are a reflection of the kind of atrocities modern-day internal armed conflicts have come to represent, namely the sexual abuse of women and girls as a deliberate instrument of war and the use of child soldiers to supplement ragtag armed militias and to spread terror in local communities.

By creating the possibility that grave breaches qualify as war crimes even in non-international armed conflicts, the Rome Statute has introduced an important development. Prior to this grave breaches were only possible in the course of an international armed conflict (see Prosecutor v Tadic, Appeals Chamber Decision on Jurisdiction, IT-94-1-AR 72 (1995)). Perhaps this is a further illustration of how fluid the boundaries between international and non-international armed conflicts for purposes of the enforcement of IHL can become. Here we simply have a later treaty law arrangement causing substantive changes to the existing legal regime covering non-international armed conflicts and bringing about a greater parity of esteem in the relevance of IHL norms for the two types of armed conflict.

6.5.3.2 Core Crimes: Crimes Against Humanity

Acts like murder, extermination, enslavement, unlawful deprivation of liberty, torture, rape, enforced disappearances of persons, etc. are perfectly suitable to be classified as ordinary common law crimes and in many countries are prosecuted as such under ordinary national criminal law. But these acts may also be defined as crimes against humanity and the question is therefore what factor or circumstance will cause an ordinary common law crime such as these to become a crime against humanity in terms of international criminal law?

The answer to this is the following. In the first instance the act in question (murder, etc.) must be committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack. Secondly, the attack in question must be of a special kind, namely it must involve the multiple commission of any of the above acts and it must be “pursuant to or in furtherance of a State or organizational policy to commit such attack” (Rome Statute, Article 7). It is because of these two elements that crimes against humanity are considered to be particularly serious and they explain why the concept of crimes against humanity has become part of customary international law since its condemnation by the Charter of the Nuremberg Tribunal (See Article 6 of the Charter).

Furthermore, it must be noted that over time the nexus between crimes against humanity and an armed conflict has disappeared with the result that these crimes can also be committed in a time of peace. It is this absence of an armed conflict as a precondition for the commission of crimes against humanity that distinguishes war crimes from crimes against humanity. But this difference may also have implications for the question whether the crimes in question can be committed against civilians alone. If the existence of an armed conflict is taken out of the equation it makes sense to consider why members of the armed forces should be excluded as possible victims of such crimes, since by pure logic, they could equally become the victims of crimes against humanity irrespective of whether there exists an armed conflict or not.

6.5.3.3 Core Crimes: Genocide

Two incidents that occurred during WWI had a profound influence on developments concerning crimes against humanity and genocide. The first incident was the Armenian genocide committed by the Turkish government between 1915 and 1918. These atrocities were not called war crimes despite the fact that they took place in the course of an armed conflict, nor were they referred to as acts of genocide. Instead they were referred to as crimes committed against “civilization” or the “dictates and laws of humanity”. The second incident were the offences committed by Germany and its allies in the course of WWI and which came to be described in terms similar to those used in respect of the Armenian genocide. The turning point came with the discovery towards the end of WWII of the atrocities committed against the Jews and other groups by the Nazis and the subsequent solemn declaration issued by the Allied Powers (the United States, the United Kingdom and the Soviet Union) that those responsible will be pursued to the end and prosecuted for their abominable deeds. Even at this point the atrocities were not referred to as genocide but described as crimes against humanity.

The term genocide was conceived in 1944 by a Polish-Jewish lawyer, Raphael Lemkin, in his treatise Axis Rule in Occupied Europe, to denote the destruction of a nation or an ethnic group by means of a coordinated plan of different actions which are aimed at the destruction of the essential foundations of national groups that will eventually bring about the annihilation of the groups themselves. Four years later, in 1948, the General Assembly of the United Nations adopted the Convention on the Prevention and Punishment of the Crime of Genocide (GA resolution 260 A (III) of 9 December 1948), in which the contracting parties confirm that “genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish” (Genocide Convention, Article 1). In Article 2, genocide is defined as:

any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

1. Killing members of the group;
2. Causing serious bodily or mental harm to members of the group;
3. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
4. Imposing measures intended to prevent births within the group;
5. Forcibly transferring children of the group to another group.

This legal definition of genocide enjoys universal recognition and has been reaffirmed in several international instruments since 1948. It is now also part of the Rome Statute of the ICC, which, in Article 6, adopts the definition of the Genocide Convention verbatim.

The distinctive feature of the crime of genocide lies in the specific intention with which the acts are perpetrated. This means that the perpetrator must have the specific and direct intent to bring about the annihilation of the group to which the victims belong. It is this specific intent which distinguishes genocide from crimes against humanity and war crimes. Intent, as an element of the crime of genocide, is usually inferred from the conduct of the perpetrator, the methodological manner in which the crime was committed and the way in which the victims were targeted or selected.

But our main concern should not be the legal issues related to the crime of genocide. Of far greater concern is the way in which states respond to this most heinous of crimes and the way in which they fail to comply with their cardinal legal duty in terms of the Genocide Convention to prevent and to punish genocide. In 2001, the then Secretary-General of the United Nations, Kofi Annan, has quite correctly identified the underlying problem by stating that the United Nations has:

a moral responsibility to ensure that vulnerable peoples are protected and that genocides never occur again. Yet, on two occasions in the recent past, in Rwanda and former Yugoslavia, the international community and the United Nations failed to live up to this responsibility. We have learned from those experiences that the very first step in preventing genocides is to address the conditions that permit them to occur. (Secretary-General Report Prevention of Armed Conflict UN Doc A/55/985-S/2001/574, 7 June 2001, para. 161)

In no uncertain terms this means that the culture of reaction to gross human rights violations must be replaced by a culture of prevention. Genocide does not occur overnight. In all cases it is preceded by premeditated and careful planning characterised by an extensive propaganda phase often long before the operational phase of the actual annihilation is set in motion. Such situations call for a far more serious consideration of preventive obligations imposed on the international community by international law than has hitherto been the case. It is also settled law that the duty imposed on states to prevent genocide is an erga omnes obligation, meaning it is a duty every state owes to the international community as a whole and as such it constitutes a jus cogens norm which is considered so important for the existence of an orderly international community that no derogation from it is allowed (see Article 53 of the Vienna Convention on the Law of Treaties, 1969). According to the International Law Commission the following are recognised by the international community as jus cogens norms: the prohibition of aggression, genocide, slavery, racial discrimination, crimes against humanity, torture and the right to self-determination (ILC Report, 53^rd session, UN Doc A/56/10, 2001 and commentary to Article 26, para. 5 at 208). It follows then that the prevention of the commission of genocide and crimes against humanity must equally qualify as a jus cogens norm.

It must be pointed out here that the erga omnes obligation to prevent gross human rights violations such as genocide and crimes against humanity should be understood as a ‘best effort’ obligation which requires states to take all reasonable and necessary measures to prevent an event from occurring. It is therefore not an obligation that involves a guarantee that the event will not occur; the obligation is one of means and not of result. Thus, a breach of the obligation to prevent is linked to a manifest failure by the state or states concerned to take all measures necessary and within its or their power to prevent the genocide or crime against humanity from taking place (See Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro, 2007 ICJ Reports 1 para. 430; Méndez: 2007, pp. 225, 226). In the case of the measures taken being unsuccessful in preventing the crime from occurring, the international community still carries the obligation to ensure that the violations are prosecuted and punished.

There could be a number of reasons why the international community is reluctant to intervene preventively in imminent cases of genocide or crimes against humanity. Two that stand out should be mentioned here. The one is the deep-seated respect for the principle of state sovereignty which is still the paramount principle on which international relations are based and which prevents states from intervening too easily in the affairs of another state. But state sovereignty can also function as a masquerade for indifference, a lack of political will or a complex of political and strategic reasons preventing a state from taking timely action. The second reason is denial coupled with a failure to reach consensus in the international community on the true nature of the atrocities by, for instance, repeated statements that a certain situation does not constitute a full-blown genocide or crime against humanity or using all kinds of euphemisms to dance around the problem without taking decisive action. In the end semantics become more important than facing up to the atrocities.

A preventive measure that is often debated but rarely implemented because of its highly controversial nature is humanitarian intervention. Its controversy stems mainly from two sources. Firstly, from a widespread concern that it may be abused for ulterior motives and used as a pretext to achieve certain political or strategic objectives which have nothing to do with rescuing civilians in a foreign state from a great peril; and secondly from a fear that the consequences of the intervention, which is undertaken with military means, may do more harm than good, such as causing an increase in the number of casualties, extensive damage to the infrastructure of the state, and more refugees fleeing to neighbouring countries. This often confronts the international community with a serious dilemma: what is the appropriate response when, for instance, large numbers of civilians in a war-torn country face imminent death? Should a no-action attitude be adopted or should there be a unilateral or collective military intervention by a state or states of the international community to try and save the civilians from death or serious maltreatment. A tragic case in point is the failure of the UN and the OAU in 1994 to intervene decisively to prevent the killing of 800,000 civilians in the course of the genocide in Rwanda. Compare also the example of NATO’s Kosovo bombardment below.

In Article 4(h) of the Constitutive Act of the African Union (2000) the Union has reserved for itself the right (as opposed to duty) to intervene in a member state of the Union in respect of grave circumstances such as war crimes, genocide and crimes against humanity. Whether the Union will ever be able to marshal the necessary political will for exercising this right is of cause open to debate. In the recent case of the Libyan conflict the United Nations Security Council decided, by Resolution 1973 (2011) to authorize:

Member States that have notified the Secretary-General, acting nationally or through regional organizations or arrangements, and acting in cooperation with the Secretary-General, to take all necessary measures, notwithstanding paragraph 9 of resolution 1970 (2011), to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory, and requests the Member States concerned to inform the Secretary-General immediately of the measures they take pursuant to the authorization conferred by this paragraph which shall be immediately reported to the Security Council. (para. 4)

This was preceded by statements in this resolution as well as in resolution 1970 (2011) to the effect that the gross and systematic violations of human rights committed during the internal armed conflict in Libya may amount to crimes against humanity. The military response that followed was largely a NATO offensive and undertaken as a form of humanitarian intervention to protect civilians as authorized by resolution 1973. However, in the unfolding of events it also became clear that NATO pursued a second objective, namely the targeting of the Gaddafi regime which led to allegations that NATO abused the Security Council’s authority to facilitate a regime change in Libya instead of protecting civilians. This is but one incident that demonstrates the controversial nature of humanitarian intervention by military means, and it raises the question whether in certain circumstances it may be necessary to remove a regime by force to prevent the continuation of atrocities against a civilian population under threat by their own government. This is further illustrated by the Syrian government’s violent crackdown against a pro-democracy uprising in which thousands have been killed since the start of the riots in 2011. On 4 February 2012, yet another attempt by the Security Council to obtain agreement amongst its members for stronger action against the Syrian regime failed because of a veto by Russia and China, two of the five permanent members in the Council. The resolution in question called for an immediate end to the violent crackdown and for President Assad to step down. This was interpreted by the Russian and Chinese governments as creating an opportunity for military intervention and regime change by forceful means in the style of the Libyan incident, a measure both governments were vehemently opposed to, seemingly on the basis of the rule against interference in the internal affairs of states (Zifcak, 2018). But one should not exclude other, more ulterior motives. Since the Soviet days Syria has been a loyal client state of Russia, including in the arms trade business, and as far as China is concerned, the country’s own human rights and democracy record is far from exemplary!

Another, earlier example was Operation Allied Force involving a large-scale aerial bombardment in 1999 by NATO with the objective of destroying Yugoslav military infrastructure in Kosovo. The justification for this offensive was based, amongst others, on the necessity to end all military action and violent repression by the Milosevic regime and to establish a UN administration over the territory. Any offensive action of this nature would need Security Council authorisation in terms of Chapter VIII of the UN Charter. Since it was clear from the beginning that Russia and China would use their veto right in the Security Council the offensive was undertaken without Security Council authorization which led to an international debate on the legality of the bombardment, a matter that even ended in proceedings before the International Court of Justice when Yugoslavia, arguing against the legality of the use of force by NATO, asked the Court for provisional measures, which failed on a finding by the Court that it did not have jurisdiction in the matter (see Cases Concerning the Legality of the Use of Force (Yugoslavia v 10 NATO States), Provisional Measures, ICJ Reports, 1999).

The controversial nature of humanitarian intervention is also as a result of a potential claim by states that under certain circumstances states might have a ‘right’ to intervene militarily or by other coercive means. If such a right exists the first question then is how it relates to the fundamental prohibition on the use of force in Article 2(4) of the UN Charter and on non-intervention in the internal affairs of states in Article 2(7) of the UN Charter. Over many years these conflicting notions exposed major divisions in the international community with no progress being made on what should be done when widespread, gross and systematic human rights violations occur in a country unwilling or unable to provide the necessary protection. The challenge to find a new consensus on this was put forward in 1999 during the 54^th session of the UN General Assembly when the then Secretary-General of the United Nations, Kofi Annan, called on states to find common ground in upholding the principles and purposes of the UN Charter and on when it is necessary to act in defence of our common humanity.

In September of the following year the Canadian government, in response to this challenge, announced the establishment of an Independent Commission on Intervention and State Sovereignty (ICISS) which published a report in 2001 which has become the subject of much debate ever since. The report’s main contribution lies in its interpretation of state sovereignty as implying a duty of a state to protect its own citizens. Consequently, when a population faces serious harm as a result of internal armed conflict or repression and the national state is unwilling or unable to bring to an end or avert the harm, the principle of non-intervention will have to make way for the international responsibility to protect. As an exceptional and extraordinary measure a military intervention pursuant to the exercise of the duty to protect will only be justified in cases where actual or apprehended large scale loss of life is imminently likely to occur as a result of deliberate state action or state neglect or inability to act. Equally important are the report’s views on the substantial conditions that must be met at the outset to prevent any intervention of this kind to be abused for ulterior purposes or to become a disguised form of aggression. These conditions are: 1. the primary purpose of the intervention must be to halt or avert human suffering, i.e. the right intention; 2. the use of military means must always be a last resort and after non-military means have been exhausted or found to be inappropriate; 3. the planned military action must be proportional to securing the humanitarian objective in question; and 4. the military means must stand a reasonable chance of success (ICISS Report, p. 35 et seq).

In view of its primary responsibility for peace and security (see Article 24 of the UN Charter), the UN Security Council must remain the principal body to decide on the use of force (see also Article 42 of the UN Charter). This is equally true in the case of the use of military means for humanitarian purposes. Here, we should take note of the consensus position in the ICISS Report where it is clearly stated that “it is the Security Council which should be making the hard decisions … about overriding state sovereignty” and it is the Security Council that “should be making the often even harder decisions to mobilize effective resources, including military resources, to rescue populations at risk …” (Article 49). But what are the implications of inaction, i.e. when, for instance, through the veto of one of the permanent members of the Security Council, the Council is paralysed and prevented from acting in these circumstances? That the Council itself stands to suffer the most with regard to its stature and credibility is a clear message in the ICISS Report, for, if because of the veto ad hoc coalitions of states, or even individual states, decide to circumvent the UN system and successfully perform their duty to protect, questions about the usefulness of the Security Council may have enduring consequences (ICISS Report, p. 55).

At the occasion of the 2005 World Summit, states of the world committed themselves to the responsibility to protect principle in the following terms (General Assembly Resolution A/RES/60/1 paras. 138, 139):

Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will to act in accordance with it. The international community should, as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability.

The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.

6.5.3.4 Core Crimes: The Crime of Aggression

When the Rome Statute of the ICC was adopted in 1998, the crime of aggression was listed amongst the crimes over which the Court would exercise jurisdiction (Article 5(1)). However, this was made subject to the adoption of a definition of the crime of aggression – still missing at the time – setting out the conditions under which the Court shall exercise jurisdiction with respect to the crime of aggression (Article 5(2)). The task to find a suitable definition of the crime of aggression was assigned to a special working group who reported on the matter during the Rome Statute’s first review conference which took place in 2010 in Kampala, Uganda. At this occasion a resolution was adopted on a definition of the crime of aggression which will be the subject of an amendment to the Rome Statute in accordance with Article 121 of the Statute. This means that the amendment will have force and effect for states parties that have accepted the amendment one year after they have become parties to the Rome Statute (Rome Statute, Article 121(5)).

The resolution adopted in Kampala defines a crime of aggression as the “planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations” (Resolution RC/Res.6, 11 June 2010, para. 1). The means by which the act of aggression is executed involves the use of armed force by a state against the sovereignty, territorial integrity or political independence of another state in any of the forms specified in the resolution (see para. 2). Currently, thirty seven states have ratified the amendment of the Rome Statute in accordance with this resolution to provide for the crime of aggression. This is brought about by the insertion of the following new provisions in the Rome Statute: Articles 8bis, 15bis, 15ter and 25(3)bis.

If this amendment meets with the approval of a large number of states parties it will indeed be an historic occasion and a triumph for the criminal-justice response to international atrocities of a kind which other measures by the international community have failed to stop or prevent. It will also mark the culmination point of a post WWII development which has recognised at Nuremberg that there is something like a crime against peace based on considerations that now inform the Rome Statute’s crime of aggression.

However, at the same time we should understand the political and legal complexities of this development. The criminal-justice perspective to the crime of aggression cannot escape the realities of international relations and international politics for the simple reason that it has implications for the collective security system of the United Nations Charter. Any act of aggression will amount to a violation of the principles of the UN Charter and as such could trigger the collective counter-response provided for in Chapter VII of the UN Charter. Furthermore, the Charter assigns primary responsibility for international peace and security to the Security Council (Article 24 of the UN Charter), where the five permanent members of the Council (the USA, China, United Kingdom, Russia and France) have the veto power, and in terms of Article 39(1) of the Charter, the Council is the only body that can determine whether an act of aggression exists. This explains the delicate balance between the powers of the Security Council and the powers of the Court introduced into the Rome Statute by the Kampala resolution. This is reflected in the power given to the prosecutor, when considering that there is a reasonable basis to proceed with an investigation in respect of a crime of aggression, to first ascertain whether the Security Council has made a determination of an act of aggression committed by a state concerned. Where a determination has been made, the prosecutor is entitled to proceed with the investigation into the crime of aggression (paras. 6, 7).

If the Security Council has not made a determination within six months after the notification to the Secretary-General, the prosecutor is likewise entitled to proceed with the investigation, provided that the pretrial chamber of the Court has authorised the investigation (para. 8). The resolution has made a further attempt at securing the independence of the Court, by stating that a determination of an act of aggression by an organ other than the Court shall not have an effect on the Court’s own findings in this regard (para. 9). But there still remains the overriding power of the Security Council in terms of Article 16 of the Rome Statute which allows for a deferral of an investigation or prosecution for a renewable period of twelve months on request by the Security Council in terms of Chapter VII of the UN Charter. The reference here to Chapter VII of the UN Charter, which deals with acts of aggression and threats to international peace and security, should make it clear that the tension between the idealism of international criminal justice and the realism of international politics is an inseparable part of the Rome Statute.

6.6 Conclusion: The Future of the Responsibility Regimes

A first conclusion regards the responsibility of states parties to ensure respect for the obligations in international treaties for the protection of war victims, and secondly the prospects for the international criminal justice system for the prosecution of individual transgressors.

As was noted earlier, state parties are obliged to respect and to ensure respect for the principles enunciated in the Geneva Conventions and Protocols. According to the ICRC and a number of states this treaty obligation implies that every contracting party is entitled to request that another contracting party involved in an armed conflict must live up to what the Conventions and Protocols stipulate. Cassese has correctly pointed out that this right or entitlement of a state party:

accrues to any contracting State from the mere fact of being a party to the Conventions or the Protocol: it is not necessary for it to prove that it has a specific and direct interest in the observance of the rules violated. In other words, the obligations laid down in the Conventions and the Protocol are erga omnes contractantes and consequently each of the latter is endowed with the corresponding right to demand their fulfilment, irrespective of any damage it may have suffered from the wrongful action. … This feature of the obligations at hand constitutes the necessary precondition for the possible characterization of gross breaches of the Conventions and the Protocol as international crimes of States. (Cassese, 2008, p. 409)

A crucial question that arises from this understanding of states parties’ treaty obligations relates to the kind of action considered by states to be authorised by the Conventions and Protocol. A survey on this conducted by the ICRC in 1972 has shown that the majority of states took the view that states parties are entitled to exercise supervision over compliance collectively as well as individually and that measures to ensure compliance could cover both preventive action and reaction to breaches. However, despite this understanding amongst states of their obligations in terms of the Conventions and Protocol, state practice with regard to concrete actions in response to violations confirmed a very cautious approach by states in reacting to serious breaches of IHL principles and that the tendency is to limit reaction to verbal condemnation of the breaches and to appeals to the belligerent parties to comply with their obligations (Cassese, 2008, p. 412). On the reaction by individual states it has been noted that:

If one contrasts the daily perpetration of gross violations of human rights during armed conflicts with the legal reaction of other States, the impression is exceedingly dispiriting. Only in very unique and exceptional circumstances do third States publicly react to them. They normally prefer to keep aloof or, at most, they approach the delinquent State via diplomatic channels when they wish to request that it discontinue the wrongdoing. (Cassese, 2008, p. 413)

From the perspective of state responsibility this remains one of the flaws in the quest for more effective enforcement of IHL norms and it is unlikely that any fundamental change will occur any time soon. It is at the same time also a problem of political leadership which in many instances is strikingly inadequate in the face of gross violations of IHL and other norms which occur so regularly in times of armed conflict.

The international criminal justice system has made considerable progress in ending the impunity of individual perpetrators for war crimes, crimes against humanity and genocide. Apart from the establishment of the two ad hoc tribunals, the ICTY (1993), the ICTR (1994), and the permanent International Criminal Court (1998), the following tribunals are equally noteworthy examples of this progress: the East Timorese Tribunal (2002), the Special Court for Sierra Leone (2002), the Cambodia Tribunal (2003) and the Lebanon Tribunal (2009).

One should not be oblivious to the obstacles that may stand in the way of effectively enforcing humanitarian law principles through an international criminal justice system, especially when considering the future success of the ICC and its potential international role in bringing about an efficient and trustworthy international legal regime for the punishment of individual perpetrators. One obvious obstacle is international cooperation. The ICC cannot function without the assistance of states parties in matters such as the execution of warrants of arrests, the apprehension and transfer of suspects, the gathering and securing of evidence, the making available of witnesses, and financial assistance for the day to day running of the system. After all, states parties have undertaken in Article 89 of the Rome Statute to cooperate fully with the Court in its investigation and prosecution of crimes falling within the jurisdiction of the Court. However, some recent developments have shown how easily this cooperation can be undermined. A case in point is the reaction by the African Union to arrest warrants authorised by the ICC for the arrest of sitting heads of state, namely Al-Bashir in Sudan and the late Muammar Gaddafi in Libya. In both instances the African Union refused to cooperate with the ICC, citing differences of opinion on the issue of immunity against legal process of sitting heads of state and interference by the Court in peace negotiations the African Union were involved in in both instances. Another example is South Africa’s deliberate failure to arrest Al-Bashir in 2015 while attending an African Union summit in the country and to surrender him to the ICC. This failure occurred in clear violation of South Africa’s Rome Statute obligations and the country’s own legislation (see the ruling of South Africa’s Supreme Court of Appeal in the case of Minister of Justice and Constitutional Development and Others v Southern African Litigation Centre 2016 (3) SA 317(SCA).

This is not the place to go into the merits of these claims, but they illustrate the fragile position the ICC finds itself in and how important it is for the international community to address such issues and to find consensus on them, lest the whole effort of building up an international criminal justice system over half a century runs aground on the harsh realities of international politics.

A second obstacle of note relates to the complementary nature of the ICC’s jurisdiction. The Court’s jurisdiction is based on the notion that the primary responsibility for the prosecution of individual perpetrators lies with national courts and that the ICC will only assume jurisdiction if the state concerned is unwilling or unable to proceed with an investigation and prosecution (see Articles 1 and 17 of the Rome Statute). But this approach places the ball squarely in the court of national states to, inter alia, adopt the necessary national legislative and other measures that will empower their national legal systems to conduct the necessary criminal proceedings against persons accused of the crimes listed in the Rome Statute. Although the Rome Statute boasts hundred and twenty two ratifications, there is concern over the relatively low number of states that have adopted national measures for the effective implementation of the Rome Statute. As long as this situation does not improve significantly so long will there be “safe haven” states where fugitives can avoid criminal accountability. If it is accepted that an essential function of criminal prosecutions is the restoration of confidence in the rule of law, then that objective must be vigorously pursued at the national level as well.

Resources and References

Review

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List of Terms

See Glossary for full list of terms and definitions.

• erga omnes
• genocide
• grave breaches of the Geneva Conventions and Protocols
• jus cogens
• Martens Clause
• prima facie
• Rome Statute

Suggested Reading

Cassese, A. (2011). Reflections on international criminal justice. Journal of International Criminal Justice, 9(1), 271–275. https://doi.org/10.1093/jicj/mqr004

Cryer, R., & Henderson, C. (Eds.). (2017). Law on the use of force and armed conflict. Edward Elgar Publishing.

deGuzman, M. M., & Amann, D. M. (Eds.). (2018). Arcs of global justice: Essays in honour of William A Schabas. Oxford University Press.

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