Where does responsibility lie for violations of IHL?

Where does responsibility lie for violations of IHL?

Hannum, Chapter 4, pp. 254-259: Where does responsibility lie for violations of IHL?

• Compliance with IHL is the responsibility of individuals. This is why we often see an attempt to shift responsibility from inferior troops to the most senior and responsible.
• The question of the defense of superior orders is answered in Article 8 of the Charter of the International Military Tribunal: one is not freed from responsibility for actions taken following the orders of their government or superiors.
• Yamashita Supreme Court Case: Court decided that a commanding officer is responsible, to some extent, for the actions of their troops → “command responsibility”
• Interview with Guy Womack by Chris Matthews (Abu Ghraib): Womack argued that soldiers have a responsibility to follow all orders and that soldiers cannot be held responsible for debating the legality of orders during combat.

Hannum, Chapter 11, pp. 957-998: Efforts to bring the International Criminal Justice Process to Bear upon Human Rights Violators

• Creation of the IMT and Nuremberg trial marked a crucial turning point:
  • Two new categories of crimes: 1. Crimes against peace, 2. Crimes against humanity
  • Previously, senior state officials had never been held personally accountable for their wrongdoings
• 1949 Geneva Conventions laid down the principle of universal jurisdiction. This was a major departure from customary law.
• The move towards promoting individual accountability under IL resulted from:[unique_solution]
  • Democratic wave in 1980s
  • Atrocities committed in former-Yugoslavia and Rwanda in 1990s
• Yugoslav War Crimes Tribunal/ICTY: established by UNSC Resolution 827
• International Tribunal for Rwanda/ICTR: issues: narrow mandate, limited temporal jurisdiction (beginning in 1994), only Hutus tried (viewed as one-sided)
• ICC
  • 120 states signed the Rome Statute on 17 July 1998 → entered into force on 1 July 2002, 114 states parties as of October 2010
  • Limitation of personal jurisdiction: crime must either be committed in the territory of a state party or by a national of a state party.
  • US view: against US citizens being tried in foreign court; threat to US sovereignty

Rome Statute of the ICC: Crimes under jurisdiction of the ICC (Art. 5): genocide (Art. 6), crimes against humanity (Art. 7), war crimes (Art. 8), and crimes of aggression (Art. 8 bis)

Whiting, “Difficult Days Ahead for the International Criminal Court”

• Issues of diminishing support for the ICC and international disengagement
• The ICC’s path towards universality was stalled by the exit of S. Africa, Burundi, and The Gambia
• Withdrawals establish a dangerous precedent in that they allow states under question to resist the ICC (ex. Burundi)
• Court can strengthen itself by creating impact through smaller cases, making its practices more efficient and effective, and creating an impact in cases beyond those prosecuted by the ICC itself

Keywords and terms:

• Defense of superior orders: the question of whether a lower officer is responsible for crimes committed under orders from superiors (IMT Charter, Art. 8 says yes, to some extent)
• Command responsibility: the question of whether a commanding officer is responsible for the actions of his troops, committed with or without his knowledge (US Supreme Court in Yamashita case said yes, to some extent)
• Universal jurisdiction: any state can bring to trial an individual for a serious breach of IL. This was a concept introduced by the Geneva Conventions of 1949.
• Jurisdiction ratione materiae: a court’s subject-matter jurisdiction, laid out in its statute. For the ICTY, there was a clear connection to Nuremberg. However, there was a departure in that the ICTY had jurisdiction over natural persons only. The Nuremberg charter included jurisdiction over organizations such as the SS.
• “Core crimes” of the ICC: genocide, crimes against humanity, war crimes; considered to represent the most serious crimes of concern to the international community as a whole
• “PrepCom”: the preparatory commission created at the Rome Conference. Put in charge of ensuring a smooth transition when the ICC statute entered into force
• Complementary (vs. primary) jurisdiction: The ICC has complementary jurisdiction (vs. the ICTY had primary jurisdiction). This means that the state itself has the first opportunity to try possible cases of genocide, crimes against humanity, and war crimes.

Questions for discussion:

1. How might we understand the trend towards focusing on the most “senior and responsible” in international and hybrid tribunals? What are some advantages and disadvantages of this departure from the IMT’s stance on the defense of superior orders?
2. How does the US stance on the ICC relate to how the US government views international law (hierarchies of law) more generally? What might be some reasons not discussed in the readings why the US would not want to be a state party to the Rome Statute?
3. The Rome Statute includes crimes typically defined in IHRL (ex. genocide) as well as crimes strictly defined by IHL (ex. war crimes). How can we relate the creation of the ICC to the different stances on the relationship between IHL and IHRL that we discussed in class?
4. Why are individuals the parties responsible for compliance with IHL (instead of states)?

Connections:

• Connecting to criticisms of state power and resistance in the ICC: the Kenyatta case–failed because the Kenyan government did not cooperate with the ICC
• Article: “Context, Timing, and the Dynamics of Transitional Justice: A Historical Perspective” (Fletcher, Weinstein, and Rowen): a good explainer on why different countries and situations are better suited for different forms of transitional justice mechanisms (tribunal–hybrid or international–, truth commission, or both). Questions the status quo of the transitional justice model.