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ISIL Year Book of International Humanitarian and Refugee Law |
| You are here: | WorldLII >> Databases >> International >> Journals >> ISILYBIHRL >> 2001 >> [2001] ISILYBIHRL 1 |
RAJINDER SACHAR[*]
The main instruments of International Humanitarian Law (hereafter referred to as IHL) are the four Geneva Conventions of 12 August 1949[1] for the protection of war victims. These treaties which are universally accepted, protect the wounded, the sick, prisoners of war and civilians in enemy hands. They also protect medical services personnel such as medical personnel, medical units and establishments, and medical means of transport.
As a matter of fact this kind of concern for the humanitarian aspect can be found in our ancient epics like the Mahabharata, where the rules of conduct of war as to the timing of attack and the prohibition attacking the unarmed were strictly laid down. The laws of Manu, a compilation of encyclopedic scope, which the British Professor Duncan M. Derrett a known authority on Hindu Law describes as a text “which constitutes India’s greatest achievement in the field of jurisprudence” and regards this work as one of the world’s premier compositions in ancient law, more valuable in every sense than Hammurabi and able to hold its own in comparison to the covenant and Priestly codes of Moses[2]. Manu, while describing the duties of a King, warns against unusual cruelty even against an enemy in warfare, and has this to say, “fighting in a battle, he should not kill his enemies with weapons that are concealed, barbed, or smeared with poison or whose points blaze with fire. He should not kill anyone who has climbed on a mound, or an impotent man, or a man who folds his hands in supplication, or whose hair is unbound, or anyone who is seated or who says, I am yours; nor anyone asleep, without armour, naked, without a weapon, not fighting, looking on, or engaged with someone else nor anyone whose weapons have been broken, or who is in pain, badly wounded, terrified, or fleeing – for he should remember the duties of good men[3]”.
Instances are mentioned condemning the role of the Kauravas in the killing of Abhimannyu and that of Bhim (otherwise a great warrior) in killing Duryaoddhana by fouling the rule of war and method of attacking the opponent.
Although the four Geneva Conventions of 1949 are very comprehensive, they do not cover the full range of human sufferings caused by war[4]. There are gaps in important areas, for instance in the provisions relating to the behaviour of combatants and the protection of civilians from the effects of the hostilities.
To remedy these shortcomings, two Protocols were adopted in 1977[5]. They supplement, but do not replace, the Geneva Conventions of 1949. These Protocols are additional to the four Geneva Conventions of 1949. Additional Protocol I (hereinafter referred to as AP I) relates to the protection of victims of International Armed Conflicts and the Additional Protocol II (hereinafter referred to as AP II) relates to the protection of victims of Non-international Armed Conflicts.
AP I imposes constraints on the method in which military operations may be conducted. AP I gives a reminder to the combatants that the right of the parties to a conflict to choose methods and means of warfare is not unlimited and that they are prohibited to employ weapons, projectiles and any other device that may cause superfluous injury or unnecessary suffering. AP I defines legitimate targets in case of military attacks. Furthermore, it prohibits indiscriminate attacks and attacks or reprisals against the civilian population and individual civilians.
Most conflicts since the Second World War have been of non-international character. AP II applies only to internal armed conflicts of a certain intensity in which dissident armed forces, under responsible command, exercise control over a part of the national territory. It sets forth the fundamental guarantees to which all persons not, or no longer, taking part in hostilities are entitled.
Additional Protocols I and II of 1977 are binding on a large number of States, but it is essential that they attain universal recognition, for only when all States have pledged compliance with their humanitarian rules, and are clearly aware of their mutual commitments, will it be possible to ensure equal protection for all the victims of all armed conflicts.
Article 48 of Additional Protocol I provides that in order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.
Article 51(4) of AP I states that the indiscriminate attacks are prohibited. Among others, the following types of attacks are to be considered as indiscriminate:
An attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.
IHL is increasingly perceived as part of human rights law applicable in armed conflicts. This trend can be traced back to the United Nations Human Rights Conference held in Tehran in 1968 which not only encouraged the development of humanitarian law itself, but also marked the beginning of a growing use by the United Nations of humanitarian law during its examination of the human rights situation in certain countries or during its thematic studies.
An important development which influenced human rights law in its later stages of development was the creation of the International Labour Organization (ILO) in 1919 which made major efforts, through the development of treaties and the installation of supervisory mechanisms, to improve economic and social (including health) conditions for workers. Third world states have in particular pointed out that in order to be able to show proper respect for the economic and social rights, appropriate economic resources are required, and that for this purpose they have a right to development.
The most important general observation to be made is that, like human rights law, humanitarian law is based on the premise that the protection accorded to the victims of war must be without any discrimination. Firstly, it prohibits the starvation of civilians as a method of warfare and consequently the destruction of their means of survival (which is an improvement on earlier customary law). Secondly, it offers means for improving their chance of survival by, for example, providing for the declaration of special zones that contain no military objectives and consequently may not be attacked.
The next “hard-core” right is that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Humanitarian law also contains an absolute prohibition of such behaviour. The protection of children and family life is also given a great deal of importance in humanitarian law.
Respect for religious faith is also taken into account in humanitarian law, not only by stipulating that Prisoners of War (POW) and detained civilians may practise their own religion, but also by providing for ministers of religion who are given special protection. In addition, the Geneva Conventions stipulate that, if possible, the dead are to be given a burial according to the rites of their own religion.
IHL is applicable in all armed conflicts and protects persons and property actually or potentially affected. In establishing the principle of damages for violation of its rules, it sets out to place upon the Contracting Parties an obligation they cannot avoid. They must meet it after the cessation of hostilities.
The obligation to make reparation is incumbent upon any party to the conflict, regardless of the final outcome. Based on the principle of equal treatment, among other things, IHL cannot allow a distinction to be drawn between victims dependent upon the winner and those dependent on the loser. All persons who have suffered any harm or wrong in violation of the treaty provisions are entitled to the same treatment regardless of the party to which they belong.
Consequently, the right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms has become a subject on the international human rights agenda.
Responsibility arising from the violation of IHL is incumbent not only upon individuals but also upon states. According to the 1949 Conventions, “No High Contracting Party shall be allowed to absolve itself (or any other High Contracting Party) of any liability incurred by itself or by another High Contracting Party in respect of breaches referred to in the preceding Article”
The interlinking of human rights and humanitarian law can also be seen in the work of bodies responsible for monitoring and implementing international law. In this connection, it is interesting to note that in recent years the Security Council has been citing humanitarian law more and more frequently in support of its resolutions. The most recent example of this tendency can be found in its Resolution 808 (1993) on the conflict in the former Yugoslavia, in which the Security Council decided to establish an international tribunal[6], “for the prosecution of persons responsible for serious violations of IHL committed in the territory of the former Yugoslavia since 1991”.
During its invasion of Grenada the United States had bombed a mental asylum, killing several patients. In its petition, the Organisation of American States asked the Inter-American Commission to interpret Article 1 of the American Declaration of the Rights and Duties of Man,1948, on the basis of the principles of humanitarian law. The Commission declared the petition admissible. In dealing with the fundamental aspects of the issue, therefore, the Commission had to base its decision on a provision drawn up in the spirit of human rights in order to apply that provision to an armed conflict.
This objective was behind the adoption in 1990 of the Declaration of Minimum Humanitarian Standards, the so-called Turku Declaration. This text makes it clear from the outset that its drafters are determined not to take a position on any dichotomy between humanitarian law and human rights law. It proclaims principles “which are applicable in all situations, including internal violence, disturbances, tensions and public emergency, and which cannot be derogated from under any circumstances”.
The most politically sensitive aspect of human rights law, namely, political rights and mode of government, is totally absent from humanitarian law. What will probably not be avoided, however, are the political influences that lead States to insist on the implementation of the law in some conflicts whilst ignoring in others. This, however, is not new and it is to be hoped that a greater interest in humanitarian law will tend to bring about more demands for it to be respected in all conflicts.
In this regard the history, the establishment and the manner of working out a mechanism for International Criminal Court (hereafter referred to as ICC)[7] would show the contradictions, the motivations and the manner in invoking international humanitarian law in actual practise.
In 1937, the League of Nations adopted a Convention against Terrorism, whose Protocol contained a Statute for an ICC. However, the Covention never entered into effect because of insufficient ratifications.
In 1948, the UN General Assembly directed the International Law Commission (ILC) to study the possibility of establishing a permanent international criminal court. However, due to the compulsions of a bipolar world no progress was made. But in a unipolar world and under US persuasion, the idea was revived when in 1992 the General Assembly requested the ILC to draft a statute for a permanent ICC. This item was also mooted at the Vienna Conference of Human Rights in 1993 and though conflicting views were expressed, the UN Security Council proceeded to establish two ad hoc war crimes tribunals, one for former Yugoslavia in 1993 and another for Rwanda in 1994[8].
In 1994, the ILC submitted a draft statute to the General Assembly which established a preparatory committee for drafting the ICC. There was much scepticism among nations as to the real purpose and efficacy of ICC especially in the light of the functioning of adhoc Tribunals set up for Yugoslavia and Rwanda.
In 1995 when the US failed to stop the war in Bosnia, in spite of the behind the scene negotiations with Yugoslavia, NATO jets (in itself an act of aggression) attacked Bosnian Serb military positions. The result was that President Milosevic was nominated by the Bosnian Serbs to negotiate with the UN.
Though prospects were dim, but at last a change in the attitudes of Governments eventually led to the conclusion of the Rome Statute on 17th July, 1998. This treaty, when ratified by 60 countries, will establish the ICC. But there is still a long way to go when ICC can start working. Sixty ratifications are needed for the treaty to enter into force and for the court to be set up. But so far only 27 countries have ratified it.
The option of signing the ICC treaty without ratifying it expired on December 31, 2000. One hundred and thirty-nine governments signed by the deadline - whether ICC will get the requisite number for ratification remains an open question.
Some commentators feel that the ICC represents one of the most important advancements in human rights protection since the adoption of the 1948 Universal Declaration of Human Rights and the most significant step for international justice since the Nuremberg Tribunal, and that the Court will be an effective mechanism for bringing to justice those responsible for the most serious human rights crimes: genocide, war crimes and crimes against humanity.
In my view, however, the various provisions, and the reservation provision in the statute do not inspire confidence in ICC (even when it comes into force) as being an impartial, non political and effective instrument for protecting human rights across the borders of the countries. I am afraid the various in-built limitations will only lead to selective justice where the whims of big powers will determine what particular cases should be investigated. How else can one explain that in spite of the report of the special committee appointed by the UN General Assembly (1989) to investigate Israeli human rights violations of Arab population of the occupied territories, no one has suggested an ad- hoc crimes tribunal as in the case of the former Yugoslavia and Rwanda. Not even the recent use of brutal violence against, and unprovoked bombing by Israel of Palestenians has persuaded the Security Council even to suggest the establishment of an International Tribunal to investigate crimes committed by the Israeli Government.
On the Iraqi sanctions, at the Baghdad Conference, the Follow up and Co-ordination Committee, which held its fourth meeting on 11-12 November 2000 under the Presidentship of Mr. Tariq Aziz, Chairman of the Committee and Deputy Prime Minister of Iraq, where it stated strongly that the ban was the creation of an Anglo-American plot against the people of Iraq which has been exposed among the international fraternity. There were 110 representatives who officially attended the Baghdad Conference.
The Committee appreciated the efforts exerted to develop initiatives aimed at breaking the air ban imposed illegally by the US on Iraq.
The Committee appreciates the resolution of the 104th Inter-Parliamentary Conference in Jakarta calling for the lifting of the embargo on Iraq. The Fourth Meeting renewed its demand to the UN Security Council to implement its obligations towards Iraq by lifting the embargo.
It has now been conclusively documented that because of the embargo, millions of children in Iraq are the victims of malnutrition, many hundreds of thousands are dying because of lack of medicines and medical facilities. These acts by a group of nations under the leadership of the U.S.A. are plain acts of aggression.
Article 5 of the ICC is the principal provision setting out the crimes within the Court’s jurisdiction. It lists four crimes – genocide, crimes against humanity, war crimes and the crime of aggression.
There is no explanation of the crime of aggression or of its elements as a matter of individual criminal responsibility. By the Final Act of the Conference, the preparatory Committee is to prepare proposals for a provision on aggression, including the definition; the Elements of Crimes, including aggression; and the conditions under which the Court shall exercise its jurisdiction with regard to this crime. It will, therefore, be seen that regrettably though in theory the Rome Statute covers aggression, the word aggression has not been defined and the jurisdiction over this ‘crime of crimes’ must await such definition through an amendment process. Critics are, however, skeptical. They say that such an amendment might never happen.
The provisions on complementarity, mean that an individual suspected of criminal activities under his or her national law may be tried by the national jurisdictions.
Whether an ICC acquires permanence or not, the gatekeeper and lead role played by the permanent members of the Security Council will remain secure. Further any special privilege given to the UN Security Council would amount to granting special privileges to a select group of five states wielding veto power to decide upon a particular situation on purely political considerations favoured by those states only, while they themselves would always be outside the pale of the inherent jurisdiction of the Court.
India tabled an amendment to list nuclear weapons among those weapons whose use should be banned for the purposes of the Statute. This was not accepted. India says that the message this sends is that, at the level of plenipotentiaries, the international community has decided that the use of nuclear weapons is not a crime. What is worse, is that the Statute does not list any weapon of mass destruction among those whose use is banned as a war crime. Several Asian and European countries have also expressed serious concern over the exclusion of weapons of mass destruction, in particular the use of nuclear weapons.
Though the draft Statute contained an exhaustive list of weapons of mass destruction under the list of prohibited weapons, fierce opposition by major military powers such as the US, China and Russia resulted in the exclusion of nuclear weapons. In the end, all the weapons except poisoned weapons, asphyxiating gases and dum-dum bullets were actually dropped from the list.
This was a motivated decision because smaller nations could make poison gas and could pose danger to the hegemony of big powers.
The Court itself has no practical means to enforce its orders and decisions. The ICC has no police force of its own. It is therefore entirely dependent on the states to investigate cases and transfer suspects to the Court. The Prosecutor has very limited power to conduct investigations. For instance, he cannot compel witnesses or carry out exhumations. In the event of non-compliance, the ICC does not have the power to order state compliance itself, but has to turn to the Assembly of state parties or if the referral is from the Security Council, it can turn to the Council for assistance.
Unlike the Statute of the International Criminal Tribunal of Yugoslavia (ICTY) the Rome Statute does not give the prosecutor the authority to conduct investigations independent of national authorities.
By Article 1, the Court is established as a permanent institution with power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in the Statute, ‘and shall be complementary to national criminal jurisdictions’. This general functional jurisdiction is universal in scope. The limitation of the Court’s jurisdiction to ‘the most serious crimes of international concern, as referred to in the Statute’, is an immediate source of ambiguity.
In this respect, the ICC is much weaker than the ICTY and International Criminal Tribunal for Rwanda (ICTR), both of which have concurrent jurisdiction with national courts and may choose to exercise primacy over them by requesting deferral to their competence. This is problematic because if a state wishes to cover up certain crimes, it would assert its jurisdiction or engage in a sham investigation.
Article 124 of the Statute permits states, at the time of ratification, to make a declaration that they do not accept the Court’s jurisdiction over war crimes for a seven-year period. According to the Amnesty International, such a declaration undermines the very purpose of the Court by giving states immunity from international justice over war crimes for seven years, as this provision effectively gives the soldiers a “licence to kill with complete impunity”
As a result of the insistence of the US and France, the final text stipulates that the state may withhold information or prevent an individual from giving evidence if, in its view, it would prejudice its national security interests. The US proposal prevailed over the one from the UK, which would have allowed the Court to order a state to disclose information, if it was acting in bad faith. Further, a very vague provision could allow states not to co-operate on the basis of inconsistency with their own “fundamental national law”, such as constitutional provisions.
Even while acknowledging it as a historic step forward for international justice, Amnesty International says that the Statute still requires radical surgery to ensure that the Court will be just, relevant and effective. I would regretfully be forced to echo with Amnesty International when it has characterized the ICC as “Crippled at Birth?”
[*] Chief Justice (Retired) High Court of Delhi, New Delhi; UN Special Rapporteur on Housing; Member, U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities (Ex.); President, Peoples Union for Civil Liberties (PUCL) India (Ex.)
[1] ICRC, (eds.13), A Handbook of International Red Cross and Red Crescent Movements, (Geneva,1949).
[2] “The Laws of Manu” – Penguin Books
[3] Ibid.,
[4] Marco Sassoli and Antoine A. Bouvier, How Does Law Protect in War? Cases and Documents and Teaching Materials on Contemporary Practice in International Humanitarian Law (ICRC,1999)
[5] Rene Kosirnik, “The 1977 Protocols : A Landmark in the Development of International Humanitarian Law” Review of the International Committee of the Red Cross, n.316(1997), pp.483-506; P.Igor Blishchenko, “Adoption of the 1977 Protocols” Review of the International Committee of the Red Cross, no. 310(1997), pp.509-514; L.C.Green, “ The Enforcement of the Law in International and Non-International Conflicts the Way Ahead”, Denver Journal of International Law and Policy, vol.24(1996), pp.793-846; J.E.Bond, “Application of the Law of War to Internal Conflicts” Georgia Journal of International and Comparative Law, vol.6(1995), pp.345-84; Shabtai Rosenne, “The Jurisdiction of the International Criminal Court”, Yearbook of International Humanitarian Law, vol.2(1999), pp. 119-42. Hans-Peter and Claus Kreb, “Jurisdiction and Co-opeartion in the Statute of the International Criminal Court: Principles and Compromises”, Yearbook of International Humanitarian Law, vol. 2 (1999), pp.143-76.
[6] W.P.Nagon, “International Criminal Law and the Ad-hoc Tribunal for Former Yugoslavia”, Duke Journal of Comparative & International Law, vol. 6 (1995), pp. 127-65; W.J. Fenrick, “Some International Law Problems Related to Prosecutions Before the International Criminal Tribunal for the Former Yugoslavia”, Duke Journal of Comparative & International Law, vol. 6 (1995), pp. 103-25; V.S.Mani “The International Court and the Humanitarian Law of Armed Conflict”, Indian Journal of International Law, vol. 39 (1999), pp. 32-46.
[7] M.Cherif Bassiouni, International Criminal Law - Enforcement “(Transnational Publication, 1987); Timothy McCormack, and Gerry J. Simpson, (ed.)” The Law of War Crimes : National and International Approaches ( Kluwer Law International, 1997); Marie-Claude Roberge, “The New International Criminal Court: A Preliminary Assessment”, International Committee of the Red Cross, n. 325(1998), pp. 671-684; Danesh Sarooshi,, “The Statute of the International Criminal Court”, International and Comparative Law Quarterly, vol. 98(1999), pp. 387-405.
[8] P. Akhavan, “The International Criminal Tribunal for Rwanda: The Politics and Pragmatics of Punishment”, American Journal of International Law, vol.90 (1996), pp. 501-10.
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