The situation in Syria. The Kony 2012 campaign. The alleged war crimes in Mali. The trial of Ratko Mladic adjourned in the International Criminal Tribunal for the former Yugoslavia (ICTY) due to procedural irregularities. These events have one thing in common: they all involve violations of international humanitarian law (IHL), a legal framework applicable to situations of armed conflict, whether national or international.
From these listed examples, we observe that IHL suffers from much transgression. Civilians endure the consequences of war, they are displaced, at times directly targeted; children are used as soldiers; detainees are sometimes denied adequate detention conditions. Yet, the rules that aim to protect civilians or ensure a human treatment to prisoners of wars are codified within the framework of IHL. This is not where the problem lies.
Numerous endeavours have been made to limit the repercussions of war, a phenomenon unfortunately still present in our current political landscape. Efforts in this sense have indeed been considerable. In doing so, however, the international community has, over the last two decades, put more emphasis on the punitive approach than on the preventive approach.
On this matter, the Rwandan experience is revealing. In 1994, the international community distanced itself from the raging conflict. As soon as the situation stabilized, the United Nations’ Security Council set up the International Criminal Tribunal for Rwanda (ICTR) through its resolution 955. The Tribunal was established “for the sole purpose of prosecuting persons responsible for genocide and other serious violations of international humanitarian law”.
Over the years, many have considered the ICTR to be an obstacle to any real reconciliation of the Rwandan genocide. After all, this international justice was imposed on the country and has little links to the Rwandan reality or to the local communities.
Indeed, wouldn’t it be preferable to engage in diplomacy and dialogue with the communities dealing with post-conflict situations instead of resorting to tribunals once a war is over and IHL has already been infringed? Tribunals are not a cure-all solution. In the short term, they do not limit the death toll. On the contrary: many consider that the arrest warrant issued against Sudanese president Omar al-Bashir by the International Criminal Court (ICC) worsened the situation and resulted in increased repression of the population.
Another hurdle arises from the limited power of the international criminal tribunals. For example, a state must have ratified the Rome Statute in order for the ICC to have jurisdiction over its citizens. The United States did sign the treaty in 1998, but they never ratified it. Consequently, US soldiers cannot be judged by an international tribunal in the event of IHL violations. Furthermore, any state can use the US strategy of circumventing the jurisdiction of an international criminal court and avoid prosecution by signing no-extradition agreements with countries where their soldiers are sent.
It is also important to remember that the ICC has only a complementary jurisdiction. This means that it can hear criminal cases only if the country refuses or doesn’t have the means to effectively prosecute the defendants. However, it goes without saying that it can hardly be claimed that a state is unable or unwilling to prosecute its soldiers without causing a diplomatic incident.
Considering these obstacles, isn’t it problematic for international humanitarian law to focus on the use of the tribunals? Michel Deyra, Professor at the Auvergne University and co-founder of the Jean-Pictet Competition in international humanitarian law agrees. He explains: “We put the emphasis on the ICC and the international criminal tribunals whilst convinced that sanctions are sufficient, yet these sanctions are proof of violations. Nothing compares to prevention and the promotion of IHL since these violations are often attributed to a lack of knowledge of this legal framework.”
For now, even if the promotion of IHL and related awareness campaigns may be faulty within armed forces, rebel groups or private security companies some, like the International Committee for the Red Cross, offer training allowing those who bear arms to be aware of their rights and responsibilities.
It was important to put an end to the era of impunity as the ex-Prosecutor of the ICC, Luis Moreno Ocampo pointed out during the Court’s first session. However, there is room for improvement of the current legal framework. Notwithstanding the political considerations that are often an impediment to reforms, the situation on the field requires the establishment of a new set of rules. For example, the international community seemed excessively timid to criminalize the use of weapons inflicting superfluous injury or unnecessary suffering. The result was that the current list enclosed in the Rome Statute only includes the weapons that have been customarily prohibited.
It might not be mistaken to say, as some often repeat, that international humanitarian law is always fighting yesterday’s battle.