The Role of International Criminal Law in Addressing War Crimes and Genocide.

Exploring Crucial roles of International Criminal Law in addressing War Crimes and Genocide.

War crimes, as defined by International Law, encompass grave violations committed during armed conflicts, including genocide, crimes against humanity, and war crimes themselves.

The research examines the key principles and legal frameworks that underpin international criminal law, including the Rome Statute of the ICC and other relevant international conventions and treaties. It delves into the definitions and elements of war crimes and analyzes how international criminal law provides a comprehensive framework for prosecuting and punishing individuals responsible for such crimes.

Additionally, the research highlights significant cases and precedents from international criminal tribunals, demonstrating the practical application of international criminal law in addressing war crimes.

INTRODUCTION

 International criminal court

The International Criminal Court  is an intergovernmental organization that has power to exercise over persons for the most serious crimes of international concern, established by Rome Statute of the International Criminal Court in 1988  and began sittings on 1st July, 2002 after being ratified by 60 countries.

It is the first and only permanent international court with the jurisdiction to prosecute individuals accused of the international crimes of genocide, crimes against humanity, war crimes and the crime of aggression. THe ICC has jurisdiction over offenses committees after July 1, 2002 in a country that has ratified the Rome statute

It is distinct from the International Court of Justice which is  an organ of the United Nations that hears disputes between states.

The United Nations established ad hoc international criminal tribunals in Yugoslavia and Rwanda to prosecute those responsible for genocide, war crimes, and other atrocities and serious humanitarian violations in those particular conflicts. 

The International Criminal Tribunal for the former Yugoslavia (ICTY) was established by UN Security Council resolution 827 of 25 May 1993.

The International Criminal Tribunal for Rwanda (ICTR) was established by UN Security Council resolution 955 of 8 November 1994.

The International Criminal Court (ICC), established or governed by the Rome Statute, is the first permanent, treaty-based, international criminal court established to help end impunity for the perpetrators of the most serious crimes of concern to the international community.

Article 1 of the Rome statute talks about the establishment of an International criminal court.

According to article 3 of the Rome Statute the seat of the Court  or the place of the court is in  Hague( Netherland).

Article 4 talks about power and legal status of the court.

Jurisdiction

The jurisdiction of the International Criminal court is limited to the most serious crimes concerned  to the international community as a whole.

Article 5  of the rome statute talks about four types of crimes which exercise jurisdiction by the International criminal court.

(a) The crime of genocide

(b) Crimes against humanity

(c) War crimes

(d) The crime of aggression

(a) The crime of genocide

The literal meaning of the word genocide is ‘the murder of all the people of a particular race, religion, etc. Genocide includes violent attack with the intent to destroy, in whole or in part, a national ethnic, or religious group.

Genocide is a grave crime under international law. According to United Nations Genocide Convention of 1948 as “genocide means acts committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group." It is considered one of the most serious offenses against humanity, as it involves the deliberate and systematic extermination of a specific group based on their identity. The Genocide Convention obligates signatory states to prevent and punish genocide, as well as to enact domestic legislation to criminalize and prosecute such acts.

Several notable cases of Genocide

● Holocaust (1941-1945)-The Holocaust was the genocide of European Jews during World War II.Nazi Germany and its collaborators systematically killing six million Jews across German-occupied Europe, around two-thirds of Europe's Jewish population.

● Rwandan Genocide (1994)-he Rwandan genocide occurred between 7 April and 15 July 1994 during the Rwandan Civil War.Over a period of approximately 100 days an estimated more than 600,000 ethnic Tutsis and moderate Hutus were brutally murdered in Rwanda.Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to

● body or to mental or physical health.

(b) Crimes Against Humanity

Crimes against humanity refer to a category of offenses under international law that involve widespread or systematic acts of violence or persecution directed against a civilian population.The concept of crimes against humanity gained prominence after World War II and has been extensively codified and defined in various international legal instruments. The Rome Statute of the International Criminal Court (ICC) provides a comprehensive definition and framework for prosecuting crimes against humanity.

Article 7 of the rome statute define crimes against humanity as acts ts when committed as

part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack. It includes Murder, Extermination, Enslavement. Deportation or forcible transfer of population, Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law, Torture, Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity, Enforced disappearance of persons.

(c) War Crimes

War crimes are serious violations of the laws and customs of warfare committed during armed conflicts. These offenses are governed by international humanitarian law (IHL), which aims to protect civilians, prisoners of war, and other non-combatants, as well as to establish limits on the conduct of hostilities.

International laws and treaties, such as the Geneva Conventions and their Additional Protocols, explicitly define war crimes and outline the legal obligations of states and individuals in times of armed conflict.

Article 8 of the Rome Statute of the International Criminal Court (ICC) define war crimes as Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention Wilful killing, Torture or inhuman treatment, including biological experiments, Wilfully causing great suffering, or serious injury to body or health, Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly, Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power, Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;

The concept of war crimes developed particularly at the end of the 19th century and beginning of the 20th century, when international humanitarian law, also known as the law of armed conflict, was codified. The Hague Conventions adopted in 1899 and 1907 focus on the prohibition to warring parties to use certain means and methods of warfare.

(d) The crime of aggression

The crime of aggression is defined in the Rome Statute, the founding treaty of the ICC, under Article 8 bis.

According to the Rome Statute, "crime of aggression" means the planning, preparation, initiation, or execution of an act of aggression that, by its character, gravity, and scale, constitutes a manifest violation of the United Nations Charter. The act of aggression must involve the use of armed force by a state against the sovereignty, territorial integrity, or political independence of another state. It also requires that the act of aggression is committed with intent to wage war or engage in a military conflict, or a substantial likelihood of such a war or conflict exists.

The Rome Statute further states that the crime of aggression can only be prosecuted by the ICC once a provision is adopted by a two-thirds majority of the states parties to the statute, as well as a decision to activate the Court's jurisdiction over this crime.

Investigation into Crimes

There are three ways for the court to begin an investigation into crimes: a member nation can refer a situation occurring on its own territory to the court; the UN Security Council can refer a situation; or the prosecutor can start an investigation into a member state proprio motu, or "on one's own initiative." If the alleged offenses occurred on the territory of a member state, if the nonmember state recognises the court's jurisdiction, or with the Security Council's approval, the court may look into people from nonmember nations.

The prosecutor must determine following a preliminary investigation that the alleged crimes are of "sufficient gravity" to begin an investigation. The prosecutor's office normally dispatches investigators and other employees to gather evidence once an investigation is launched. The judiciary must give its blessing to every summons or warrant for an arrest based on data supplied by the prosecutor. Whether a case should go to trial is eventually decided by a panel of pretrial judges. Defendants have the option of hiring outside legal representation, which the court will fund if required. Convicted defendants have the right to appeal to the ICC's appellate bench, which is made up of five judges. Convictions and punishments must receive the support of at least two of the three judges on a trial bench.

Cases and Precedents

There have been several significant cases and precedents from international criminal tribunals that demonstrate the practical application of international criminal law in addressing war crimes. Here are some notable examples:

Nuremberg Trials (1945-1949): The Nuremberg Trials were held after World War II to prosecute individuals responsible for crimes against humanity, war crimes, and genocide. The trials established important principles such as individual criminal responsibility. The Nuremberg trials established that all of humanity would be guarded by an international legal shield and that even a Head of State would be held criminally responsible and punished for aggression and Crimes Against Humanity.

International Criminal Tribunal for the former Yugoslavia (ICTY): The ICTY was established in 1993 to prosecute individuals responsible for war crimes committed during the conflicts in the former Yugoslavia. Notable cases include:

a. Srebrenica Genocide: In the case of Prosecutor v. Krstić, the ICTY ruled that the massacre in Srebrenica in 1995 constituted genocide, setting an important precedent for holding individuals accountable for the crime of genocide.

b. Tadic Case: The case of Prosecutor v. Tadić was the first case before the ICTY and established the tribunal's jurisdiction over war crimes committed in the former Yugoslavia, even if the accused was not a member of a formal military organization.

International Criminal Tribunal for Rwanda (ICTR): The ICTR was established in 1994 to prosecute individuals responsible for the Rwandan genocide. Notable cases include:

a. Akayesu Case: The case of Prosecutor v. Akayesu was the first case in which the ICTR ruled that rape and sexual violence could constitute acts of genocide, recognizing the importance of addressing sexual crimes in international criminal law.

b. Bagosora Case: The case of Prosecutor v. Bagosora convicted a high-ranking military official for his role in planning and implementing the Rwandan genocide, establishing individual criminal responsibility for senior officials involved in mass atrocities.

International Criminal Court (ICC): The ICC is a permanent international court that has jurisdiction over war crimes, crimes against humanity, genocide, and the crime of aggression. Notable cases include:

a. Lubanga Case: The case of Prosecutor v. Lubanga was the first trial at the ICC, addressing the recruitment and use of child soldiers as a war crime. It highlighted the importance of protecting children in armed conflicts.

b. Bemba Case: The case of Prosecutor v. Bemba established that military commanders can be held criminally responsible for crimes committed by their subordinates if they fail to take necessary and reasonable measures to prevent or punish those crimes.

Conclusion

The comprehensive framework of international criminal law, as outlined above, provides a strong basis for prosecuting and punishing individuals responsible for war crimes. It establishes clear definitions of war crimes, defines individual criminal responsibility, sets out jurisdictional principles, emphasizes international cooperation, and recognizes the rights of victims. By combining these elements, international criminal law seeks to ensure accountability, deterrence, and the promotion of respect for international humanitarian law in times of armed conflict.

Reference

Rome statute

United Nations

Convention on the Prevention and Punishment of the Crime of Genocide