Professor Vitit Muntarbhorn, Faculty of Law, Chulalongkorn University, Bangkok
International humanitarian law is the part of international law primarily responsible for regulation of armed conflicts, and in particular, protection of victims. Its roots can be found in all regions of the globe. The conduct of war and what is or is not permissible is dealt with, for example, in the literature of China, India and Thailand. Key texts dating back many centuries advocate humanitarian principles that fallen soldiers should not be harmed, that civilians should not be attacked, and that certain types of weapons, such as poisons, should not be used even in times of war.
More formally, those principles were expressed internationally through treaty making from the nineteenth century onwards. The role of international customs?namely, binding international rules that are to be guaranteed even when there are no treaties, was also advocated in the nineteenth century by an important humanitarian, Fyodor Martens. International humanitarian customs now find their place in international law, recognized even in treaties, and are expressed as the Martens Clause to the effect that:
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.
The First and Second World Wars brought horrific violations of international humanitarian law and gaps in its implementation.
This situation called for more comprehensive coverage through treaty making of a more universal kind, resulting in the four Geneva Conventions of 1949, which are the backbone of international humanitarian law today. The four Geneva Conventions are concerned mainly with international armed conflicts, however they contain a key article in common dealing with non-international armed conflicts. This article is known as “common article 3” and while succinct, it stipulates key principles applying to all parties in non-international armed conflicts. These include the principle of non-discrimination in relation to humane conduct towards victims, the prohibition of inhumane treatment of victims, and prohibition of hostage taking. Humanitarian organizations must also be given access to victims.
In 1977 two protocols supplemented the 1949 Geneva Conventions, with regards to victims of international and non-international conflicts. Importantly, three key principles that were not clearly expressed in 1949 were strongly affirmed in 1977: war-related activities must distinguish between military targets and civilians; civilians must not be targeted; and, the use of weapons is not unlimited?weapons causing unnecessary damage or suffering must not be used.
A key challenge for international humanitarian law from the very beginning has been its enforcement. Violations of international humanitarian law are serious transgressions, whether in peace or war. However, until very recently prosecution of the culprits in most cases depended upon prosecution within countries rather than at the international level.
The new International Criminal Court (ICC) thus fills a crucial gap by providing the world with a permanent court that can act to prosecute the culprits if domestic courts fail to do so. The 1998 Rome Statute of the International Criminal Court established this Court. The Rome Statute itself has enormous implications for the evolution of international humanitarian law and its enforcement.
The jurisdiction of the ICC includes four varieties of crimes committed by individuals (not states): genocide, crimes against humanity, war crimes and the crime of aggression. While there are extensive definitions relating to the first three offences, the fourth has yet to be defined.
Under the Rome Statute, the definition of genocide is derived from the 1948 Convention against Genocide and covers the destruction or killing of members of a group with intent to destroy a national, ethnic, racial or religious group. Crimes against humanity encompass acts committed as part of a deliberate widespread or systematic attack against any civilian population, including murder, rape, sexual slavery and enforced prostitution. War crimes are defined as serious crimes in war?both international and non-international?such as grave breaches of the 1949 Geneva Conventions, and breaches of international customary law, such as intentional attacks on civilians and the recruiting of children under 15 years of age into armed conflicts.
The Court does not have jurisdiction over crimes before the entry into force of the Statute (2002). Cases are not admissible before the Court where a state is investigating or prosecuting the accused, unless the state is unwilling or genuinely unable to do so. Individuals cannot bring cases directly before the Court, but States Parties, the Security Council or the Court Prosecutor can initiate action. In the case where a State Party or the Court Prosecutor initiates the prosecution, the Court will not take up the case if the country where the alleged crime took place or the country of nationality of the accused person refuses to permit prosecution. This does not apply where the Security Council initiates the prosecution.
Heads of government and military commanders are not immune from prosecution. The Security Council is also entitled to take action against citizens of countries that are not members of the Court, and prosecute them before the Court. The Court may impose fines and imprisonment. Reparation for the victims is also possible.
The practical obstacles facing the Court are well known, and four of them are particularly worrying. First, the United States has now withdrawn from the Court. Secondly, that country has also pushed for a Security Council resolution exempting international peacekeepers (primarily United States troops) from the Court’s jurisdiction. Thirdly, the United States is now pressing many countries to sign bilateral agreements not to initiate prosecutions against its troops. Fourthly, many countries in Asia are still not parties to the Statute of the Court.
Despite such difficulties, the International Criminal Court has bolstered international humanitarian law by providing it with a number of things:
1. Certainty. The Court provides greater certainty for international humanitarian law because its Statute helps to define various notions that were previously unclear. These include key definitions of genocide, war crimes and crimes against humanity. Article 7, for instance, defines “crimes against humanity” to mean Any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
d) Deportation or forcible transfer of population;
e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender or other grounds that
are universally recognised as impermissible under international law;
i) Enforced disappearance of persons;
j) The crime of apartheid;
k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.
2. Specificity. The Statute enumerates instances of war crimes and crimes against humanity that provide key details specifying what is and what is not covered in the relationship between the Court’s jurisdiction and international humanitarian law. Article 8 of the Statute, for instance, defines “war crimes” as covering both offences encompassed by treaties (namely, the 1949 Geneva Conventions) and customs in both international and non-international armed conflicts. While the two 1977 Protocols are not mentioned specifically, because several countries have still not acceded to them, various elements from these Protocols are now part of customary law and are covered by the Statute of the Court.
3. Predictability. In the past enforcement and accountability of international humanitarian law depended very much upon national and local actions, and this gave rise to a great degree of inconsistency and unpredictability. The Court provides greater predictability with the likelihood of more consistent jurisprudence.
4. Complementarity. While national jurisdiction is respected and while the national setting has priority in taking action against the culprits, where the national level fails to act, the Court has jurisdiction. This is the principle of complementarity.
5. Universality. As the ICC aspires to be a permanent global institution, it adopts a universal approach against international crimes. It invites participation from the global community, both governmental and non-governmental, in addressing violations of international humanitarian law.
6. Representativity. The discussions leading to the establishment of the Court permitted input from both developing and developed countries, and from both governmental and non-governmental entities. Thus the Court enjoys a degree of representivity in its establishment and in lawmaking. However, individuals and non-governmental organisations cannot bring cases directly before the Court. They need to work via the Court Prosecutor, who also needs to represent a global viewpoint.
7. Victim-sensibility. The Statute and its recent Rules of Procedure reflect the call for more victim-friendly and gender-sensitive interventions. For instance, the privacy of victims must be safeguarded, while audio-visual media and other means are to be used to help reduce the stress of victims when giving evidence. This is a constructive precedent for all international treaties.
8. Remedial measures. Interestingly, not only will the Court be able to impose criminal sanctions on those found guilty but also compensate the victims. This step blends criminal law and civil law remedies to simplify procedure. An international fund is also to be set up to help victims.
Notwithstanding, the Court faces three significant challenges:
1. Exceptionality. Clearly some countries are trying very hard to remain beyond the reach of international humanitarian law and the Court’s jurisdiction. This type of exceptionality is objectionable; it undermines and detracts from the quest for the international rule of law.
2. Security. The relationship between international humanitarian law and the ICC will be seriously tested by the growing threat of global terrorism. The ICC must certainly strengthen the international rule of law against terrorism. This is all the more reason to call for universal accession by countries to the ICC, especially as terrorist acts may also constitute war crimes
and crimes against humanity.
3. Enforceability. This is a question of responsive implementation measures at the national and local levels. Many countries still need to take stock of their national setting and how it might be brought into conformity with the Statute. Several countries have already adopted totally new legislation to implement the Statute, while others have been less enthusiastic. The need for effective enforcement goes hand in hand with closer cooperation and assistance between all countries and the Court itself to ensure pursuit of the offenders and guarantee justice for the victims.
All states in Asia should ratify and accede to the Statute of the International Criminal Court, with a commitment to effective enforcement of its provisions. To achieve this, both states and non-state bodies should mobilize. Broad-based education and capacity-building programmes should be carried out, to respond to the spirit of international humanitarian law and the ICC. Collectively, these actions will nurture a global culture respectful of humanity.
This is an abriged and edited version of a paper presented at the “International seminar on major issues relating to the International Criminal Court”, held in Haikou, Hainan, People’s Republic of China, 9 12 February 2003, organized by the Research Center for Criminal Jurisprudence at Renmin University, Beijing, and the Asian Legal Resource Centre.
Professor Vitit Muntarbhorn is Professor of Law at Chulalongkorn University in Bangkok. He was formerly Special Rapporteur on the sale of children of the United Nations High Commissioner for Human Rights.