Introduction
International humanitarian Law regulates the means and methods of warfare as well as protects victims of armed conflicts. The breach of these rules attracts criminal responsibility. This means individuals accused of committing grave breaches are liable to prosecution and punishment.
The Legal rules of international law are not enforced through a central body which is a distinguishing factor from the municipal system. This is one of its weaknesses (Fleck, 1995:517). An exception is the maintenance of international peace and security by the Security Council. The Geneva Law has in recent times developed specific instruments to secure both international and domestic enforcement. Among these are the institutions of the Fact-Finding Commission and the protecting power (Fleck, 1995:518). The United Nations Security Council can also establish a tribunal
for the prosecution and punishment of persons who are alleged to have committed grave breaches. This paper will examine the different aspects of the enforcement of international humanitarian law at the international level.
Antecedents
International treaty law lagged in the aspect of the punishment of war criminals. Customary international law provided the basis for the punishment of war criminals through the injured state (Fleck, 1995:518). The Hague Conventions of 1899 and 1907 did not contain express regulations dealing with individual responsibility for offences against the laws and customs of war. It however left open the possibility of prosecution by the injured State (Articles 41 and 56 para 2 Hague Regulation; also, Article 28 of the Geneva Convention of 1906). The provisions failed to incorporate detailed regulations for prosecution.
After World War I, a Commission was established to investigate, among others, violations of the rules of warfare by Germany and its allies. The Commission also had a mandate to set up a Criminal Court to prosecute individuals responsible for the
violations. Thirty-two war crimes were identified by the Commission (Fleck, 1995) namely:
1. Murders and massacres; systematic terrorism
2. Putting hostages to death
3. Torture of Civilians
4. Deliberate starvation of civilians
5. Rape
6. Kidnapping of girls and women for enforced prostitution.
7. Deportation of Civilians
8. Internment of Civilians
9. Forced Labour of Civilians in Connection with the military operations of the enemy.
10. Usurpation of Sovereignty during military occupation.
11. Compulsory enlistment of soldiers among the inhabitants of occupied territory.
12. Attempts to denationalize the inhabitants of occupied territory.
13. Pillage.
14. Confiscation of property.
15. Exactions of illegitimate Contributions and requisitions.
16. Debasement of currency and issue of spurious currency.
17. Imposition of collective penalties.
18. Wanton devastation and destruction of property.
19. Deliberate bombardment of undefended places.
20. Wanton destruction of religious, charitable, educational, and historic buildings and monuments.
21. Destruction of merchant ships and passenger vessels without warning and provision for the safety of passengers and crew.
22. Destruction of fishing boats and relief ships
23. Deliberate bombing of hospitals
24. Attack on and destruction of hospital ships
25. Breach of other rules relating to the Red Cross.
26. Use of deleterious and asphyxiating gases.
27. Use of explosive or expanding bullets, and other inhuman appliances.
28. Directions to give no quarter.
29. Ill-treatment of the wounded prisoners of war
30. Employment of prisoners of war on unauthorized works
31. Misuse of flags of truce
32. Poisoning of wells.
The Treaty of Versailles (1919) had intended through the military tribunals of the Allied and Associated powers to punish those individuals who had violated the laws and customs of war. The German government however refused to hand over the individuals, thereby making such prosecution impossible.
The proposals for the punishment of war crimes are found in the Geneva Convention of 1929. Article 30 of the Convention provides as follows:
On the request of a belligerent, an inquiry shall be instituted, in a manner to be decided between the interest parties, concerning any alleged violation of the convention; when such violation has been established the belligerents shall put an end to and repress it as promptly as possible.
This was among the first steps towards the codification of law on the prosecution of war crimes.
When Germany refused to hand over its war criminals to Allied and Associated powers for trial, its Supreme Court- Reichsgericht – undertook to punish the war criminals based on a law passed on December 18, 1919. In this respect, proceedings were initiated against 901 persons. Of this number, only 13 persons were convicted. Punishments meted to these convicts were deemed to be too light and as such comprehensive execution of them did not ensue (Fleck, 1995:520). This unsatisfactory outcome led to the establishment of the International Military Tribunal after World War II.
In 1942, the United Nations War Crimes Commission was established. In 1943, the major powers namely the United States, the United Kingdom, and the former USSR met at a Conference in MOSCOW and worked out a programme for the prosecution of War Criminals. The MOSCOW Declaration read thus:
Those German Officers and Men and Members of the Nazi party who have been responsible for, or have taken a consenting part in the above atrocities, massacres, and executions will be sent back to the countries in which their abominable deeds were done so that they may be judged and punished according to the laws of these liberated countries and of the free governments which will be created herein… The above declaration is without prejudice to the case of the major criminals, whose offences have no particular geographical location and who will be punished by the joint decision of the Governments of the Allies.
On August 8, 1945, the United States, the United Kingdom, France, and the former Soviet Union signed an agreement for the prosecution and punishment of the Major War Criminals of the European Axis Powers. Accompanying this agreement was the Charter of the International Military Tribunals which was ratified by 19 other states. The Tribunal was competent to try three categories of offences namely: Crimes against peace, war crimes, and crimes against humanity (Article 6 of the Charter).
In addition to the Germans, the political and military decision-makers in Japan were also subjected to criminal prosecutions after World War II (By the Potsdam Declaration of 26 July 1945). Japan had explicitly accepted the relevant conditions set down in the Declaration of Surrender. An International Military Tribunal for the Far East was established.
The International Military Tribunals of Nuremberg and Tokyo conducted trials and imposed penalties against German and Japanese War Criminals. However, there were opponents to the prosecution of war criminals at that time. They maintained that the Nuremberg Trial was an occupation court, not an international one and that it was a trial of victors over the vanquished, not the administration of justice (Blishchenko, 1988:285). This argument is not sustainable since the Charter of the Nuremberg Tribunal was acceded to by 19 other States ((Blishchenko, 1988:285). In addition, the UN General Assembly confirmed as generally recognized the principles of international law contained in the charter of the Nuremberg Tribunal and reflected by the judgment of the Tribunals (Resolution 95 (1) of December 11, 1946.).
The Concept of Responsibility
The events of the Second World War marked a turning point in the concept of responsibility for violations of laws and customs of war. According to Blishchenko (1988:284):
The concept of responsibility for violation of Laws and Customs of war and for War Crimes was finally shaped after World War II. The crimes committed by the Nazi and Fascist regimes during this War caused justified anger among all nations. Even the most inveterate opponents of the elaboration of a system of rules of responsibility in international law would not prevent the establishment and development of the institution of responsibility for the violation of the laws and customs of war and for the committing of war crimes.
The four Geneva Conventions of 12 August 1949 contain rules governing the prosecution of grave breaches of the Conventions (Articles 49 and 50 Convention 1; Articles 50 and 51 Convention 11; Articles 129 and 130 Convention III; Articles 146 and 147 Convention IV). They offer national legislatures sufficient grounds for prosecution. The question of responsibility for violations of the provisions of the Geneva Conventions of 1949 arose in Angola in 1976 and the Middle East Conflict (Blishchenko (1988:288).
The 1977 Additional Protocol I Supplements and Strengthens the 1949 Conventions on the aspect of responsibility (Articles 86, 87, 88, 89, 90 and 91). Article 90 of Protocol 1 provides for a Fact-Finding Commission to enquire into any allegation of a grave breach or other serious violation.
“The phrase grave breach has a precise meaning and designates breaches that are listed, whereas the phrase serious violation is to be understood as having its usual meaning, which the commission is left to determine ” (Sandoz, 1988:282).
Enforcement of IHL after the Nuremberg and Tokyo Trials
The grave breaches system of the 1949 Geneva Conventions provides for Universal Criminal jurisdiction over violators of the law (Ibanga, 2001:36)
But since the trial of the major war criminals after the Second World War, there has not been any high-profile trial. Does that mean that since the end of the Second World War, other wars both international and intra-state have not been fought? Or that there have been no grave breaches of international humanitarian law?
Brutal wars have been fought at the international and intra-state levels. These include the wars in Korea, Vietnam, Arab-Israeli, India-Pakistan, Iran-Iraq, Sri Lanka, Nicaragua, Mozambique, Angola, Colombia, Uganda, Liberia, D R Congo and Burundi. Others include the American invasion of Panama, Grenada, Libya, and Iraq, the former USSR invasion of Afghanistan, and the Russian invasion of its Republic of Chechnya. In all of these armed conflicts, grave breaches of the Geneva Conventions and Additional Protocols occurred.
In the Iran-Iraq War that lasted for eight years (1980 – 1988), Saddam Hussein, then president of Iraq, was alleged to have used chemical weapons against Iran. It was also proved that Saddam used chemical weapons against his Kurdish population resulting in the death of thousands of civilians. Yet the world kept quiet. As an ally of the West, Saddam was a necessary evil who could check the influence of the Islamic Republic of Iran in the region. The man is only being made to face justice before an Iraqi court because he has fallen out of favour with his godfathers in the West.
Problems of Enforcement
The Cold War which dominated international relations may have been responsible for the failure to enforce IHL in many instances. For enforcement to take place at the international level, there must be a decision of the UN Security Council to that effect. And during the period before 1990, the Council members could not agree on almost anything. The readiness of the permanent members to exercise their veto compounded the problem.
If the Yugoslavia armed conflicts occurred before the end of the Cold War, it would probably have been impossible to bring the war criminals to trial. The USSR (now replaced by Russia) a strong ally of the Serbs would certainly have vetoed the resolution.
It was not possible to talk about the enforcement of the Geneva Law where the vital interests of the superpowers were concerned. Despite the atrocities committed by Israel against the Palestinians in the occupied territory, including the demolition of civilian homes, destruction of crops and farmland, collective punishment, and starvation of civilians, nobody has ever been made to account for these crimes. The activities of Israel which include settling its citizens in the occupied territories and expulsion of most of the Palestinian population into exile could not even be condemned in the Security Council because of American veto. Despite the atrocities in the Darfur region of Sudan which the UN Fact Find Mission says are crimes against humanity, the Chinese would not even want the matter to be discussed at the level of the Security Council because of their interest in the Sudanese oil. In other words, where the strategic interests of the big powers are involved, the international community becomes helpless as far as enforcement of the Geneva Law is concerned.
There is also the problem of selective treatment and double standards. How will anyone explain why belligerents who committed terrible crimes in the Liberian armed conflict have not been prosecuted and punished? The persistent call for such trial (Ibanga, 2001:42) has gone unheeded. 60 years ago, the German city of Dresden was bombed by American and British Warplanes which left at least 35,000 civilians dead in 14 hours (BBC News, February 13, 2005). The indiscriminate bombing resulted in a huge firestorm that engulfed the city and left it in ruins. Yet no American or Briton has been made to account for this. The violations of the laws and customs of war in Iraq by American forces have largely gone unpunishable except for a few scapegoats. Other problems include balancing the desire for peace with the demand for justice and the lack of political will by other states to insist on the enforcement of relevant norms. (Ibanga, 2001:41)
The Period After the Cold War
The end of the Cold War marked an end to superpower rivalry and the demise of one of the superpowers. It also marked the beginning of an era of cooperation and unity at the Security Council.
The outbreak of hostilities in former Yugoslavia presented a great challenge to the United Nations and indeed the Security Council. The atrocities committed by the Serbs against the Muslims and Croats were reminiscent of those committed during the Second World War. They brought back memories of Nazi atrocities against the Jews. In one incident, seven thousand Bosnian men were brutally slaughtered by Serb forces in Srebrenica which was designated a UN-protected or safe area.
In its response, the Security Council adopted Resolution 808 stating as follows:
That all parties are bound to comply with the obligations under international humanitarian law and in particular the Geneva Conventions of 12 August 1949, and that persons who commit or order the commission of grave breaches of the Convention are individually responsible in respect of such breaches… And to take effective measures to bring to justice the persons who are responsible for them.
The resolution stated further that an international tribunal to prosecute persons responsible for serious violations of international humanitarian law since 1991 shall be established in the territory of the Former Yugoslavia.
The resolution set the stage for the Constitution of an international tribunal for the trial of war criminals in the former Yugoslavia. This was subsequently followed by that of Rwanda and Sierra Leone.
International Criminal Tribunal for the Former Yugoslavia (ICTY)
The end of the Cold War also witnessed the disintegration of some hitherto powerful states. While the disintegration of the former USSR was peaceful that of former Yugoslavia was not. The outbreak of hostilities in former Yugoslavia resulted in the gross violation of international humanitarian law. In response, the Security Council by resolution 827 established the International Tribunals for the Prosecution of Persons responsible for Serious Violations of International Humanitarian Law committed in the Territory of the Former Yugoslavia since 1991 (known as International Criminal Tribunal for the Former Yugoslavia or ICTY). The Tribunal has its seat in the Hague. In settling this Tribunal, the Security Council acted under Chapter VII of the UN Charter, as an enforcement measure.
The Tribunal exercised jurisdiction in respect of crimes set out in Articles 2 – 5 of its Statute the violation of which entailed individual criminal responsibility. Its jurisdiction was concurrent with but not primary over that of national courts. The Tribunal has jurisdiction over natural persons (Article 6 of the Statute). It had no jurisdiction over States, legal persons, and organizations. The Tribunal consisted of 14 judges, three judges serving in each Trial Chamber and five judges in the Appeal Chamber. All states were bound by it and obliged to comply with the requests and decisions of the tribunal. In the event of non-compliance, the tribunal may refer the matter to the Security Council.
Several persons were indicated by the Tribunal and more than 30 are already in detention awaiting trial. Perhaps the biggest detainee was the former Yugoslav President and Serb Strongman Slobodan Milosevic. He had been charged with war crimes and crimes against humanity over his role in the war. His trial commenced on February 12, 2002.
The International Criminal Tribunal for Rwanda (ICTR)
This Tribunal had its seat in Arusha Tanzania. The Office of the Prosecutor was shared with that of the ICTY and was located in The Hague, with a Deputy prosecutor based in Kigali Rwanda. Like that of Yugoslavia, the ICTR is an ad hoc tribunal with a mandate to prosecute persons responsible for genocide and other serious violations of international humanitarian law committed in the course of or about the 1994 Rwandan Civil War.
The ICTR which was established by Security Council resolution 955, in the exercise of its enforcement powers under Chapter VII of the Charter is said to be “the first international tribunal having competence over crimes committed in an internal armed conflict” (Sands & Klein, 2001:385).
This Tribunal and that of former Yugoslavia maintained close institutional links. The competence of this Tribunal was limited to the prosecution of (a) genocide (b) Crimes against humanity and (c) violation of Article 3 common to the Geneva Conventions and Additional Protocol II. The Tribunal is composed of 14 judges, three serving in each Trial Chamber and five judges in the Appeals Chamber. In the Rwandan conflict, Hutu extremists slaughtered an estimated one million Tutsis.
Special Court for Sierra Leone (SCSL)
The Security Council also established an international tribunal to try persons who were responsible for grave breaches of international humanitarian law in the internal armed conflict in that country. The rebels used amputations and mass rape to terrorize the population (Associated Press March 27. 2002). Children, some as young as nine were recruited, given marijuana, and trained to fire AK-47 (Roy-Macaulay). In January 2002, the UN approved a Special Court for Sierra Leone (SCLS) to try those responsible for the crimes committed during the Civil War (Security Council Resolution 1315). The Court was based in Sierra Leone and will apply international as well as domestic law. The Court opened the trial on June 3, 2004.
Persons from the rebel and government sides had been indicted and are standing trial, among them the former leader of the Civil Defence Force, Sam Hinga Norman. However high-profile rebel indictees are not standing trial. Since the indictment was issued notorious rebel leader Foday Sankoh and his top lieutenant Sam “Mosquito” Bockarie had died. Charles Taylor who was living in exile in Nigeria, was extradited, tried, and convicted. He is presently serving a 50-year jail sentence in a British maximum-security prison.
The International Criminal Court (ICC)
The Statute establishing this court was adopted in Rome in July 1998. The idea of a permanent international criminal tribunal dates back to the Second World War following the establishment of the ad hoc Nuremberg and Tokyo War Crime Tribunals. The idea has been promoted by a wide range of non-governmental and governmental sources and was given impetus by the establishment of the UN Security Council of the ad hoc Yugoslavia and Rwanda International Criminal Tribunals.
The ICC is permanent and independent located in the Hague. The principal purpose of the Court is to make perpetrators of international crimes accountable for their actions. Article 5 of the Statute provides that “the jurisdiction of the court shall be limited to the most serious crimes of concern to the international community as a whole. It is entrusted with criminal jurisdiction over persons who commit one or more of the four categories of crimes namely:
(a) Genocide
(b) Crimes against humanity
(c) War Crimes
(d) The Crimes of Aggression
The ICC launched with the first cases from Africa
The first cases were referred to the Court by the government of D.R. Congo of rebel leaders who perpetrated war crimes and crimes against humanity in that country. This was followed by referrals on the situations in Sudan, Uganda, Kenya, Cote d’Ivoire Libya, the Central African Republic, and Mali. Some of its high-profile indictments include those of Jean-Pierre Bemba, former Vice President of D R Congo; Omar al Bashir, former President of Sudan; Uhuru Kenyatta, former President of Kenya; and William Ruto, current President of Kenya.
The Court has suffered major setbacks, especially in the number of convictions secured. Bryant (2018) describes the Court as a painfully slow, inefficient, and expensive institution. Several indictments have been issued since 2002, but these have led to just four convictions, all of them from Africa. The ICC has suffered major setbacks in several high-profile cases. It was forced to drop cases against Kenya’s president and vice for lack of sufficient evidence amid accusations of witness harassment and lack of cooperation from the Kenyan government (Bryant, 2018). Former Congolese vice president, Jean-Pierre Bemba who was convicted by the Court later had his conviction set aside on appeal. Laurent Gbagbo former president of Cote d’Ivoire was acquitted of crimes against humanity arising from post-election violence.
Though there had been a preliminary examination of situations in other continents, few indictments or charges have been preferred. In March 2023, the Court issued an arrest warrant for President Vladimir Putin of Russia for war crimes and crimes against humanity about the invasion of Ukraine.
References
Associated Press March 27. 2002
Blishchenko, I.P. “Responsibility in Breaches of International Humanitarian Law” in UNESCO International Dimensions of Humanitarian Law Geneva: Henry Dunant Institute, 1988, pp 283 – 299
Bryant, L. (2018) “Hague Tribunal Remains Deeply Controversial After 20 Years” Voice of America, March 04 Available at https://www.voanews.com/europe/hague last visited 12/4/2023
Fleck, D. (ed.) The Handbook of Humanitarian Law in Armed Conflicts Oxford: Oxford University Press, 1995
Ibanga, M. “The Liberian Armed Conflict Revisited: Responsibilities of Belligerent Under International Humanitarian Law” The Calabar Law Journal Vol. V No. 1 2001 pp 22-43
Roy-Macaulay, C. “Sierra Leoneans Testify on Reble Abuse” Associated Press July 21, 2004
Sands, P. and Klein, P. Bowett’s Law of International Institutions, London: Sweet and Maxwell, 2001
Sandoz. Y. “Implementing International Humanitarian Law” in UNESCO International Dimensions of Humanitarian Law Geneva: Henry Dunant Institutes, 1988, pp 259 – 282
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