Chapter 15 Dealing with Gross Atrocities Learning objectives: • Define and assess the basic sources of humanitarian law. • Describe the nature of war crimes, the crime of genocide and crimes against humanity. • Explain the role of the ad hoc tribunals for the former Yugoslavia and Rwanda. • Consider the establishment of the International Criminal Court. 1. What is International Humanitarian Law? • IHL is a set of rules, established by treaties and in many cases custom, intended to protect human dignity in situations arising from armed conflict. • IHL is the counterpart to IHRL and the two overlap in numerous key respects. • Much of the law is found in the four 1949 Geneva Conventions and 1977 Additional Protocols. • There are also many older treaties dealing with matters such as the types of weapons that can be used – e.g., Hague Conventions of 1899 and 1907, which are still relevant in certain contexts. • A clear relationship between IHL and aspects of International Criminal Law (ICL); violations of IHL are often violations of ICL and entail individual criminal responsibility. 2. The Four Geneva Conventions & Additional Protocols • Geneva Convention I, Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 1949. • Geneva Convention II, Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 1949. • Geneva Convention III, Relative to the Treatment of Prisoners of War, 1949. • Geneva Convention IV, Relative to the Protection of Civilian Persons in Time of War, 1949. • Additional Protocol I, Victims of International Armed Conflicts, 1977. • Additional Protocol II, Victims of Non-International Armed Conflicts, 1977.
• The main treaty sources of IHL applicable in international armed conflict are the four Geneva Conventions of 1949 and Additional Protocol I of 1977.
• The main treaty sources applicable in non-international armed conflict are Article 3 common to the four Geneva Conventions and Additional Protocol II of 1977. 3. The relationship between IHL and IHRL • In some respects, IHRL supplements the norms of IHL by supporting any relevant IHL provisions. • IHRL is a much broader body of rules than IHL in terms of its scope. • No derogation at all from IHL treaties is permitted. • In terms of substance and aim, both IHRL and IHL are concerned with the protection of the inherent dignity and well-being of the individual - Genocide Convention is a good example. • Numerous international tribunals and the ICC have held individuals liable for ‘war crimes’ committed in conflicts that are not international. • The term ‘war crime’ is a legal term but relates to certain atrocities committed during what is now armed conflict – it does not require there to be a technical legal state of war. • A final distinction can be drawn with regard to how IHRL treaties and IHL treaties are supervised.
• IHRL treaties often but certainly not always have supervisory bodies. • Under IHL treaties, states have a duty to take measures but there is no supervisory body. 4. The Rise of International Criminal Law • The Nuremburg and Tokyo Trials – ‘war crimes’ and ‘crimes against humanity’. • The Genocide Convention, 1949. • The UN Convention Against Torture, 1984. • International Criminal Tribunals for the former Yugoslavia (1993) and Rwanda (1994) both established by the UN Security Council. • The International Criminal Court, 1998. 5. The International Criminal Court. • The jurisdiction of the ICC is limited to the most serious crimes: genocide; crimes against humanity; war crimes; and crimes of aggression. • The ICC is a complementary mechanism: it is the primary responsibility of states to prosecute, the ICC steps in when states do not or are unable to fulfil their obligations. • ICC statute significant in two regards. • First, in terms of individual accountability and the establishment of a permanent global instrument. • Second, in terms of its institutional contribution to the law’s implementation and its codification and progressive development of the substantive law.
• The foundation of the ICC was a key moment in the development of humanitarian law and international criminal law. • There have been serious problems from the very moment of the court’s foundation; in particular, the refusal of the USA to cooperate. ICC mired in global politics. • Numerous other key states are not party to the ICC Statute. Russia, India, China, Pakistan and Israel are examples. • There is an issue concerning the work of the ICC and the prosecutor and a focus on Africa. • National trials can still continue – eg Iraqi tribunal for Saddam Hussain. Further reading: • Statute of the International Criminal Court: www.icc-cpi.int/resource- library/ Documents/RS-Eng.pdf • Three videos as an introduction to the International Criminal Court: http://legal.un.org/avl/ls/Song_CLP.html • Ratner, S.R., J.S. Abrams and J.L. Bischoff Accountability for human rights atrocities in international law: beyond the Nuremburg legacy. (Oxford: Oxford University Press, 2009) third edition. • Sands, P. East West Street: On the Origins of Genocide and Crimes Against Humanity. (London: W&N, 2016).
