Charlie don’t surf: on international jurisdiction and internal conflict
August 17, 2013 Leave a comment
This week, after the massacre in Rabaa, Egypt, human rights lawyers have declared universal jurisdiction over the military abuses of the civilian population since the coup. If universal jurisdiction over international armed conflict is not a new concept, claiming it over an internal conflict that is still emerging – even if rapidly escalating and growing in intensity – is relatively revolutionary. International law has going for it that its constant expansion, the recent proliferation of human rights (in both positive and negative lights) and the increasing involvement of the United Nations Security Council (UNSC) in foreign affairs have made it possible to create new legal norms, going far and beyond the responsibility to protect. Universal jurisdiction is the right of third states – states not parties to an international armed conflict, insofar as current legislation – that have no territoriality or nationality, or even “protective principle” links with either offender or victim, to prosecute those who commit violations of the law of war. If there is established jurisdiction of the International Criminal Court (ICC) and International Military Tribunal (IMT) to prosecute violations of the Geneva Conventions, Hague Convention, or the Treaty of Rome, can human rights lawyers actually claim jurisdiction in an undefined internal armed conflict? Based on Theodore Meron’s 1995 commentary on international criminalization of internal atrocities, we provide an outlook.
From international tribunals to international jurisdiction: Nüremberg to Rwanda
International criminal law is a concept that was birthed as the same time that nations started war; it only emerged as a binding concept in the dawn of the Twentieth Century, and has seen a massive, normative expansion over the first international conflict, World War One, that gave birth to additional Geneva protocols. In 1944, however, as the Allied Forces started preparing for the aftermath of the Axis surrender, the necessity to rebuild, and the complexity of indicting Nazi war criminals, a clause emerged – known as the Martens clause, which later became the preamble to the Hague Convention:
Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them (and annexed to the Convention), the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of public conscience.
The writing of the UN Charter, its adoption by member states, the creation of the UNSC, and other deferent institutions are hereby born from “dictates of public conscience”, a norm that has governed the expansion of international criminal law. The very concept of human rights law was derived from the Nüremberg Charter, a tribunal which in itself was a criminal violation of the principle of nullen crimen sine lege. However, the reaction to the liberation of Nazi camps, the extent of the Nazi horror, the repeated crimes of aggression against sovereign states as early as 1934, the violation of international treaties, and basic stampede of the law of war as well as Geneva protocols called for extraordinary measures, which led to an extraordinary tribunal. Through the Nüremberg norm, it exposed the possibility of prosecution of crimes ex juris gentium, outside of natural law. Despite the historical bloodshed of World War One and the rampant inhumanity of the Nazi regime, atrocities have since then blossomed all over the globe and spurned a necessary and fast adjustement of international law.
It is not admitted, nor necessary, for international violations to be international crimes, and for violations of international law to be prosecuted under international tribunals only. Article 129 (3) of the Third Geneva Convention clearly indicates that all member states
… shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches.
Following this rule, grave breaches of international law are focusing on breaches of the law of war in international armed conflict, such as the Nüremberg charter: war crimes, genocide, and crime against humanity. Two specific instances of armed conflict however managed to challenge the legal community on the ground it was standing on, due to the unique nature of the crimes committed, and the complexity of qualifying an armed conflict international or not, and falling under the restrictions of the law of war, if such a war is, according to international law, taking place.
The first ad hoc international tribunal relative to the war in Bosnia-Herzegovina, The International Tribunal for Yugoslavia, expanded on the idea that war crimes could be prosecuted at customary international law level. Draper, a law scholar who extensively wrote about the legal right of a belligerent party to try war crimes, concluded that the Nüremberg process, in itself, protected the interests of the co-belligerents. The main issue of the Nüremberg Trials was that they represented yet another manifestation of winner’s victory, not just in the seats present at the UNSC, but the somehow moral right of the winner of a war to not only declare the losers criminals, but to prosecute them under an international law they created, ex post facto, adding to the burden of the losing side of the war, made heavy by occupation and later separation. If there is universal recognition of the law of war in a post World War 2 world, and war crimes are crimes against natural law – prosecution of war crimes is by extension justified under international law. Creating the possibility of a third state, or a third party – through an international tribunal, usually set up ad hoc by the international community – is an attempt at skirting away the possibility of international law reinforcing the national interest of a co-belligerent that would benefit from the prosecution, instead of accessing it for the respect of natural law.
Extension du domaine de la lutte
The Secretary-General commentary on the Article 5 of the Yugoslavia statute, which is an extension of the definition of crimes against humanity established by Nüremberg. Until Yugoslavia, the question of whether crimes could be prosecuted under war crimes legislation was framed by the Chapter VII of the UN Charter. This clearly implied that war crimes as such could only be committed as “threats to peace” or “crimes of aggression”, limiting the prosecution of war crimes to international armed conflict. It is important at this stage to acknowledge that human rights violations do not happen in a vacuum. There are a manifestation of a broader socio-political issue on the international and national stage. Prosecuting a war crime solely based on its statutes as restricted per the Chapter VII will not eliminate the conflict that brought those abuses to light, or be in the direct path of conflict resolution. They will simply be a manifestation of the right to prosecute a crime as defined per law, and once the offender, if found guilty, is punished, abuses can either continue – being picked up where they left off – or leave the victims in a situation in which not only their lives will not be remedied, but their issues not be addressed on a wider scale. It was necessary, in the context of the IMT on Yugoslavia, to encompass a political situation as well as violations of humanitarian, human rights, and war laws for the IMT to provide the safety the population needed. Article 5 of the Yugoslavia Statute expanded and offered that those crimes could also take place outside of an international armed conflict and/or a declared war. If the statute itself does not expand the jurisdiction, it gave the Tribunal the opportunity to be later referred to as an expansion on the prosecution of war crimes. Because accessing war crimes as outside of war was an extremely vague concept, Article 5 required that such crimes were “committed in armed conflict, international or internal in character, and directed against any civilian population…” Including the burden of proof of actually directing the violence against any civilian population – in a widespread and systematic way, as defined by Nüremberg – may increase the difficulty of characterizing a human rights violation as a war crimes that can be prosecuted under international law. That this addendum was written by the then-Secretary General of the UN begets the question of whether the UNSC itself is actually capable of completely working outside of the national interests of its member parties.
A commentary on Article 20 of the Draft Statute for the ICC reads as such:
… The term “directed against any civilian population” should be taken to refer to acts committed as part of a widespread and systematic attack against a civilian population on a national, political, ethnic, racial or religious grounds. The particular acts referred to in the definition are acts deliberately committed as part of such an attack.
Another historical change was made by the ad hoc tribunal on Rwanda. In article 4, universal jurisdiction over crimes against humanity was clearly asserted:
The International Tribunal for Rwanda shall have the power to prosecute persons committing or ordering to be committed serious violations of Article 3 common to the Geneva Conventions of 12 August 1949 for the Protection of War Victims, and of Additional Protocol II thereto of 8 June 1977. These violations shall include, but shall not be limited to: a) violence to life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment; b) collective punishments; c) taking of hostages; d) acts of terrorism; e) outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault; f) pillage; g) the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples; h) threat to commit any of the foregoing acts.
This extremely extensive definition of crimes against humanity – going as far as extending jurisdiction not only over political violence, but threats of violence – is the bedrock for what is now universal jurisdiction over war crimes. It asserts that any violation of the Geneva Protocols and Hague Conventions are subject to prosecution by third states or third parties, and that crimes are not only defined, but also expandable to any “violence to life”, as well as crimes defined in conventions regarding non international armed conflict. But if this created the norm for prosecution, it didn’t create the norm for criminality.
International committees tried their hardest to steer clear of expansive universal jurisdiction over criminality of human rights violations, and even in the draft for the Yugoslavia Tribunal, asserted that the only crimes one could claim universal jurisdiction over were crimes committed in international armed conflict. It was clear to the commission that, for a tribunal to claim jurisdiction, an existing treaty or convention should already be in existence to establish the crime – nullen crimen sine lege – or that the tribunal stuck to the concept of aut dedere aut judicare, but once again, applying to war situations only (“… it must be observed that the violations of laws (…) are offenses committed in international, but not an internal armed conflict”. The grip of national sovereignty and the absolute necessity to respect the legality of a state to act as it wishes within its own borders as per Article 2 of the UN Charter seemed to be more important than extending the domain of international law. However, a 1994 UN Document is reinserting the principles enunciated in the Martens clause:
“… the content of customary law applicable to internal armed conflict is debatable. As a result, (…) the only offences committed in internal armed conflict for which universal jurisdiction exists are ‘crimes against humanity’ and genocide, which apply irrespective of the conflicts’ classification.”
It will take time to extend universal jurisdiction to war crimes, but the immorality of crimes committed against human life, referring to the question of international concern and a duty to act against atrocities, is more and more prevalent.
We are tired of the tune; you must not relent
The legal concept of de minimis non curat lex never applies in a more relevant way than it does in international law; one of the reasons advanced for explaining why international criminal law and the commissions created to explain, expand, or interpret it do not extend further from the Nüremberg principles and the Additional Protocol II was because, according to the Commission, it is not supposed to “authoritatively codify crimes under international law”. The matter of international concern, however, remains an ongoing question. Atrocities committed in conflict have not ceased after the creation of the UNSC, and Yugoslavia and Rwanda were, if egregiously outstanding conflicts, not happening in a situation of peacetime on the planet. The explosion of the Soviet empire brought nothing but more internal conflict on european and caucasian soil, and the African continent has been plagued by turf wars spurning from constant interference from previous colonial powers. If there is such a thing as an international community as was defined in the weeks before the League of Nations in 1918, there is a moral obligation to not only enforce these crimes in international law not with just jurisdiction, but criminality; not simply provide an international ad hoc tribunal, but empower domestic courts with the resources to prosecute crimes under international law on their soil; and to denounce atrocities as such when they take place, and take appropriate counsel.
As Theodor Meron said in his exposé on universal jurisdiction, “there is no moral justification, and no truly persuasive legal reason, for treating perpetrators of atrocities in internal conflicts more leniently than those engaged in international wars.”
Individual responsibility engaged at domestic criminal level can be engaged at international level; if states are engaged in responsibility over their actions in international armed conflict, as a nation declaring war, engaging troops, and ordering crimes of aggression, in an internal conflict, even more so, are individuals responsible for ordering crimes and committing them. It was not Germany as a state that was liable during the Nüremberg Trials; it was Nazi leaders and high-ranking officers facing trial. The International Criminal Court has attempted to hold Slobodan Milosevic responsible for the crimes committed in Bosnia; and those named “warlords” worldwide are no less criminal than those engaged on man-to-man homicide. Murder remains murder regardless of the scale of the action; acts of violence and disrespect of human life are crimes regardless of the territoriality and the nationality of the victims; crimes against humanity are perpetrated by men made of flesh and blood, regardless of the body instauring the situation in which those crimes are committed. “Crimes against international law are committed by men, not by abstract entities; and only by punishing individuals who commit such crimes can the provisions of international law be enforced.” (Nüremberg document, OD 223, 1947).
Ratifying an international treaty endorses provision of said treaty in domestic law; it has therefore been encouraged to try war crimes at national level, even if states usually lack the resources to actually perform the prosecution at the time a conflict emerges. However, several states have either laws or military manuals reflecting provisions for the prosecution of crimes under international law (such as Canada, or the British War Crimes Act of 1991). It is important to recognize however that, despite the wide range of states party to treaties as important as the 1975 Convention Against Torture, the unwillingness to prosecute those breaches of the law under national courts is a display of reservation against international law, or perhaps, the unwillingness to participate in the judicial superiority of international law when said state is itself taking part in violation of the law, through its foreign or domestic policy. If proliferation of international covenants protecting civil and political rights in nation-states have flourished after the end of the Cold War, covert actions by intelligence agents or secret wars waged outside of territory of declared war have made the possibility and opportunity of using domestic courts for violation of international crimes difficult. National ministers of Justice seem reluctant to perform acts against nation-states that could later be performed against them for acts of the very same nature. It seems that in those situations only international jurisdictions could have the morality and lack of self-interest to prosecute each state as equal parties to the violation of a, or several, crime(s).
But if the dictates of public conscience should be a paramount concern to every nation-state, there is a difference still being made between a “grave breach” of international law, and “other breaches” made to those conventions. Those “grave breaches”, covering genocide and crimes against humanity, carry with them the obligation of the states party to the treaties to prosecute those crimes. The international community formed around the signature and ratification of those treaties is forced, by the legal binding convention, to bring perpetrators to justice for committing those crimes. Creation of ad hoc tribunals and the hope residing in the permanent existence of the ICC have made this obligation a reality, provided that member states comply with necessary investigations into those crimes and allow impartial rapporteurs and legal workers to bring the information to the court(s). However, what is reluctantly called “lesser”, or “other breaches” to the Convention – namely the Geneva Protocols, such as war crimes and crimes of aggression – do not carry an obligation. The jurisdiction covered for those crimes is a right, which indicates that the law permits the possibility of prosecuting those crimes, if the states so wish. It does not in any case carry an obligation to do so.
It is dangerous and pervasive to establish a distinction and a hierarchy between what constitutes obligation of prosecution under violations of the Geneva Protocols. Those conventions – and additional annexes, following conventions such as the previously mentioned CAT and the so revered ICCPR – have become normative over the years and carry with them an idea of international justice and the hope of all peoples to be not only protected by the principle of self-determination, but never again to be isolated, set aside from the international community and suffering in silence while the rest of the world sits idly by. The creation of the UNSC in itself represents the wish that all 125 member states be finally cognisant of the importance of the human life, regardless of territoriality or nationality. Internal conflicts are no less harmful to the international community than a war is; in an era of wide globalisation and easiness of transit of peoples, there is no possible alienation of pain, strife, tension and despair; and there is hope in the expansion of international criminal and individual responsibility hitherto that no acts of violence be committed in immunity and impunity. There is fear in the restriction placed over universal jurisdiction; there is concern over the expansion of prosecution of war crimes in international courts. On one hand, the world is tending towards human rights proliferation, towards extension of justice, towards accessibility to freedom, towards globalisation of civil rights. On the other hand, nation-states and governments feel threatened by infringement of the law on their sovereignty, by the criminalisation of their actions against their own population, and by the limitless statute of crimes against humanity. One would argue that governments should indeed live in fear of international criminal law; that it exists so our past never haunts us again, and the ghosts of paramilitary action from Nicaragua to Northern Ireland never feels the cold steel of governmental collusion ever again. One would argue that the very creation of the Article 4 of the Rwanda Statute is what will guarantee a safety net against inhumane actions.
But sovereignty remains sovereign. It took two and a half years for the international community to finally question the events in Syria. It took a death toll of over 600 people in the course of a single day for the community to universally condemn the perpetrators of the massacre in Rabaa. Condemnation of an act is neither the prosecution or the sentencing of said act; it is barely even the acknowledgement of this act as a crime. International law will always be hindered by strategic placement of a given nation in the trade-offs that are geopolitics; in the sacred borders that this country holds next to other conflict zones; in what this country can bring to another nation, under the promise that it will be set free from the legal binding of an international treaty. International law has jurisdiction over internal conflict if we let it. International law will persevere and prevail if the international community finds it within itself to accept the infringement on national sovereignty and recognize the supremacy of the human life. The era of nation-states is now questioned. And it is now questioned in front of those very nations, those happy few, sitting at the UNSC, the only international body that can authoritatively extend this right.
And we stand, and we wait, for national interest to finally fall below jus gentium.