“Why is the killing of a million a lesser crime than the killing of an individual?”
— Raphael Lemkin, Polish lawyer best known for coining the word genocide
The world of international law is a murky one with many contradictions and nuances. However, I hope that by addressing the fundamentals and the most frequently asked questions regarding its implementation, we can all get on the same page and delve a little deeper into these crimes and how/why they are perpetrated.
WHAT DOES THE INTERNATIONAL CRIMINAL COURT (ICC) DO?
The ICC is designed to supplement, rather than replace, existing legal infrastructure. It is the only permanent international legal body to try persons for "the international crimes of genocide, crimes against humanity, war crimes and the crime of aggression."
WHAT IS A CRIME OF AGGRESSION?
This crime is characterized as a state using armed force against the "territorial integrity, sovereignty, or political independence of another state."
The Rome Statute contains a list of seven acts of aggression, which are the same as those in United Nations General Assembly Resolution 3314 of 1974 and include the following acts when committed by one state against another state:
Invasion or attack by armed forces against territory
Military occupation of territory
Annexation of territory
Bombardment against territory
Use of any weapons against territory
Blockade of ports or coasts
Attack on the land, sea, or air forces or marine and air fleets
The use of armed forces which are within the territory of another state by agreement, but in contravention of the conditions of the agreement
Allowing territory to be used by another state to perpetrate an act of aggression against a third state
Sending armed bands, groups, irregulars, or mercenaries to carry out acts of armed force
WHAT IS THE DIFFERENCE BETWEEN THE INTERNATIONAL CRIMINAL COURT (ICC) AND THE INTERNATIONAL COURT OF JUSTICE (ICJ)?
The main distinction is that the ICC prosecutes and punishes individuals for crimes committed after July 1, 2002. The ICJ negotiates contentions between countries.
The ICC is also legally autonomous from the United Nations, whereas the ICJ is one of the six principal organs of the UN.
HOW DID THE ICC COME TO FRUITION?
The notion of an overarching international court gained momentum after the Second World War. Still, the formal statute to enact the ICC was not approved at the United Nations conference until July 17, 1998. The treaty received more than sixty ratifications by April 2002 and became legally binding on July 1, 2002.
IS THE USA A MEMBER OF THE ICC?
During the period that member states discussed the Rome Statute, the United States disputed its development over concerns that US military members could be susceptible to frivolous or politically incentivized prosecutions.
The US pushed for immunity for its personnel operating in UN peacekeeping missions, but the immunity was rebuked in East Timor. But with increased pressure and the threat of the US declining its support for future missions, the Security Council accepted the immunity terms based on a one-year exemption from prosecution, with the prerogative it could be renewed each year.
In 2002, Congress passed the American Service Member's Protection Act, which accredited the President to take all necessary action to have any US personnel detained by the ICC. Nonetheless, while President Clinton went on to sign the treaty at the end of his last term in office, President George W. Bush withdrew from the agreement after taking the helm in 2002.
Yet the US has historically been a strong supporter of international criminal justice and war crimes tribunals.
ARE THERE OTHER COUNTRIES WHO ALSO ARE NOT PARTY TO THE TREATY?
Yes – six other countries initially voted down the Rome Statute. These were China, Libya, Iraq, Israel, Qatar and Yemen. In a similar vein to the United States, China also argued that the accord was an endeavor to meddle in a country's sovereignty or domestic affairs.
Several other countries did not necessarily oppose the statute but have never signed on to membership. These include India, Iran, Japan, North Korea, Pakistan, Saudi Arabia, Sudan, Syria, and Turkey.
WHY CAN'T COUNTRIES PROSECUTE THEIR OWN WAR CRIMINALS? WHY IS THERE A NEED FOR THE INTERNATIONAL CRIMINAL COURT (ICC) TO GET INVOLVED?
The ICC, by law, can only take action when a national court is "unable or unwilling" to carry out the prosecution or if a state's legal system collapses. But the ICC can also exercise jurisdiction if a government is the alleged perpetrator of despicable crimes.
HOW IS THE ICC FINANCED?
Despite being an independent body, the ICC is funded in large part by its member states. The contribution amount is calculated by the same means as the United Nations, which is relative to a country's wealth and income.
Voluntary contributions, international groups, individuals, corporations and other bodies also provide donations, as does the UN with approval from the Secretary-General about an issue raised by the Security Council.
WHO HAS TO FOLLOW THE RULES OF WAR?
Formally termed international humanitarian law (IHL), these regulations – which are rooted in The Geneva Conventions and essentially resolve what actions can and cannot be carried out amid armed conflict – apply to everyone, both state and non-state actors.
IHL applies to all groups in conflict, including designated terrorist organizations. However, in situations that aren't formally deemed wars, the laws apply not to the group in its entirety but to individual members of the outfit.
The International Committee of the Red Cross (ICRC) points out that while violations do happen all the time, such instances "receive far greater attention than the consistency with which IHL is respected and applied." In many ways, the fact that compliance is unremarkable demonstrates the effectiveness of IHL in shaping parties' behavior. But, unfortunately, the violations are still too frequent, which is why States and the ICRC are working on strengthening compliance with IHL."
WHAT ARE THE CRIMES CONSIDERED TO BE THE GRAVEST BREACHES OF THE GENEVA CONVENTIONS?
War Crimes are characterized as having taken place either during armed conflict or outside of it, and under the guise of international – a battle between countries – or non-international groups, which refers to state and non-state groups, such as rebels or terrorist outfits.
Eleven crimes constitute "grave breaches of the Geneva Conventions and apply only to international armed conflicts."
Willful killing
Torture
Inhumane treatment
Biological experiments
Willfully causing great suffering
Destruction and appropriation of property
Compelling service in hostile forces
Denying a fair trial
Unlawful deportation and transfer
Unlawful confinement
Taking hostages
CAN THE ICC ARREST SUSPECTS?
No. The ICC does not have a police force and is thus reliant on State collaboration to arrest or surrender suspects. However, the Pre-Trial Chamber can issue an arrest warrant, and from there, the Registrar imparts requests to the relevant State or States.
Episode 10: THE BASICS YOU NEED TO KNOW ABOUT INTERNATIONAL LAW