Not by International Criminal Tribunals Alone – Options for Pursuing Accountability for Violations of International Humanitarian Law

Numerous possible approaches exist for promoting compliance with international humanitarian law (IHL), ranging from dissemination and training, to “naming and shaming” violating parties, individual criminal responsibility, state responsibility, targeted sanctions, as well as engaging with the violating party to assist it to remedy its wrongdoing.

All possible approaches must be considered. There is no single best solution for enhancing compliance. On the contrary, it is precisely a mix of methods that is often necessary. Which is best suited in a particular situation depends on a variety of factors, including the type of violation, the party whose compliance one is trying to enhance, and the party trying to promote compliance. What is also frequently overlooked is that achieving better compliance is a long-term process.

In terms of accountability mechanisms, the atrocities committed in the former Yugoslavia and in Rwanda over twenty years ago led to a reinvigoration of the notion of individual criminal responsibility and of international tribunals for its enforcement. This is clearly a positive development, both for the specific conflicts addressed by the tribunals, and for international justice more broadly. This said, it has focalised attention on one particular way of promoting accountability and must not lead us to lose sight of two important underlying considerations:

– the obligations under IHL of parties to an armed conflict are significantly broader than those whose violations lead to individual criminal responsibility; and

– international criminal tribunals are but one among many of mechanisms that may be resorted to for pursuing accountability.

1. The rules of international humanitarian law are not necessarily co-terminous with war crimes

There is a close relationship between IHL and war crimes but the two are not necessarily synonymous. A number of differences may exist and parties to armed conflict must comply with the frequently broader rules of IHL on which war crimes are based. Equating the two would be legally inaccurate and would lead to a reduction in protection for people affected by armed conflict.

First, international criminal responsibility only arises for the most serious violations of IHL: war crimes – as well as for equally serious violations of other rules of public international law including genocide, crimes against humanity, and torture. However, parties to an armed conflict are bound by the entirety of applicable rules of IHL. Focusing on war crimes can lead us to overlook rules affording important protection to civilians as not all violations of IHL are war crimes. By way of example, it is uncontested that parties to non-international armed conflicts must not direct attacks against civilian objects, however violation of this prohibition is not a war crime under the ICC Statute.

Second, even with regard to those rules of IHL whose violations are war crimes, there are instances in which the ICC Statute formulates the crime more narrowly than the underlying rule. For example, the prohibition of disproportionate attacks in Article 51 of Additional Protocol I relates to attacks “which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated”. The corresponding war crime in the ICC Statute is formulated more narrowly, as “attacks which are clearly excessive in relation to the concrete and direct overall military advantage anticipated” (emphasis added). The threshold for the war crime is thus higher than for the underlying rule of IHL ie not all attacks that violate the prohibition are in fact war crimes. While it is acceptable for the ICC war crime to focus on the most serious violations of the prohibition, whose existence is also probably easier to establish, this must not lead to a narrowing of the underlying rule of IHL.

Third, the standard of proof to establish criminal responsibility is high; for example, for a conviction the ICC requires guilt beyond reasonable doubt. The accused must also be shown to have had the requisite intent to commit the war crime in question. While these requirements are proper in criminal proceedings, they may give rise to circumstances where a war crime cannot be established despite a clear violation of the underlying rule of IHL for which the parties to the armed conflict nonetheless remain responsible.

Finally, and more practically, there may be circumstances in which it is clear that a violation of IHL has been committed but where it is impossible to identify the perpetrator and thus criminal proceedings are not an option. Provided the conduct in question can be attributed to them the parties to the conflict – state or organised armed group – are nonetheless responsible under international law for the violation.

2. A range of mechanisms for pursuing accountability

Various international and national judicial and quasi-judicial mechanisms exist for pursuing both individual criminal responsibility but also that of parties to armed conflict.

In terms of individual criminal responsibility, there has been much focus, possibly too much, on the ICC. This overlooks the fact that, in addition to the challenges of establishing its jurisdiction, the ICC was established to try persons most responsible for the crimes, and it has complementary jurisdiction only, primary jurisdiction resting with national courts.

The establishment of international tribunals has had a catalytic effect on national criminal institutions. For example, the ICTY was essential to the establishment of what is now the War Crimes Chamber of the State Court of Bosnia Herzegovina. However, national prosecutions of war crimes remain the exception rather than the norm. Far more still needs to be done to build the capacity and confidence of national institutions – prosecutors, courts and counsel – and to enhance judicial cooperation and assistance among states.

Moreover, although individual criminal responsibility is an important way of punishing perpetrators of war crimes and, hopefully, deterring further violations, it is not the only accountability mechanism. All to frequently we overlook the responsibility of parties to armed conflict – states and organised armed groups – which, as explained above, is broader than that of individuals. While challenges exist in finding a forum with jurisdiction to review claims of violations of IHL by parties to armed conflict, there are numerous instances at the international level where this has occurred, including before the International Court of Justice and specialised bodies such as the Eritrea-Ethiopia Claims Commission and the United Nations Compensation Commission in relation to Iraq’s invasion of Kuwait. Importantly, in addition to determining the responsibility of parties to the conflict some of these bodies also awarded compensation to victims of violations.

Finally, proceedings against parties to armed conflict may also be brought before national courts. Admittedly the challenges of establishing jurisdiction are significant, as are the range of grounds on which courts may decline to exercise it, such as the act of state or political question doctrines. This said, there is an important, and growing, body of domestic case law, including the so-called “habeas litigation” before the US courts in relation to conflict-related deprivation of liberty, the judicial review by the Israel Supreme Court of Israel of administrative action in relation to the Occupied Territories, and judicial review cases before the UK domestic courts.

Conclusion

Resorting to as wide a range of approaches as possible is necessary to maximise the chances of achieving the various objectives of accountability: punishing perpetrators, holding parties to armed conflict responsible for violations, deterring future violations, providing reparations to victims, and changing the practices of parties to enhance compliance with IHL.