Any opinions, findings, conclusions or recommendations expressed in this material are those of the authors and do not necessarily reflect the views of Parallelewelten.
Chapter 1: Introduction, Literature Review & Methodology
The potential for conflict is an inherent characteristic of the human condition. Unfortunately, war represents one of the most undesirable side-effects stemming from such a trait. Yet owing to the fact that society has become increasingly more cultured and civilised, there has been a proliferation of attempts to regulate the laws of war with civilians having always figured prominently in drafters’ minds. Significant progress was made at the beginning of the 20th century, but it was not until the ratification of the Geneva Conventions in 1949 that a treaty was adopted which specifically focused on the protection afforded to civilian persons during periods of war.
The central premise underpinning this thesis is that whilst there has undoubtedly been marked progress regarding the imposition of sanctions on individuals found culpable for humanitarian law violations in the civilian context, there is still considerable scope for improvement. It thus follows that the primary objective of this research paper is to ascertain the effectiveness of the various accountability mechanisms currently being utilised to prosecute those persons responsible for the perpetration of war crimes and breaches of international humanitarian law. To achieve this goal, both the merits and weaknesses of each method shall be analysed with relevant observations and potential improvements being advanced where appropriate. By emphasising defects in the current system of international criminal liability, it is hoped that this thesis will propose several key enhancements which would positively contribute to further strengthening this blossoming area of law.
This question warrants serious consideration on the grounds that it is imperative that global actors ensure that effective and consistent enforcement mechanisms are in place to deal with such serious affronts to the civilian. If the type of human rights atrocities witnessed in previous armed conflicts are to be forever consigned to the past, the piecemeal approach towards criminal liability which has largely been adopted by the international community up until recently is unlikely to accomplish this objective.
Due to the expansive nature of international law, it has been necessary to impose certain limitations on the scope of this research project. Although a thorough examination of all the pertinent issues would have been desirable, the parameters of this paper simply do not permit this. Consequently, several armed conflicts of significant importance will be scrutinised in greater depth, namely the troubles afflicting the Former Yugoslavia in the early 1990’s and the Allied invasion of Iraq in 2003. It is important to bear in mind that these conflicts have not been selected arbitrarily for inclusion in this thesis as there were important considerations meriting their selection.
For example, the Yugoslav Wars in Eastern Europe served as the catalyst for some of the most significant developments in international humanitarian law during the latter half of the 20th century. This conflict posed numerous challenges for the international community on the whole. It was perhaps the first definitive instance where the nature of an armed conflict was unclear – was it internal or international or did it comprise a hybrid mixture of both elements? Moreover, the Yugoslav Wars resulted in the creation of the International Criminal Tribunal for the Former Yugoslavia, a landmark occurrence in its own right considering that in the absence of a permanent international criminal court, this was the first ad-hoc criminal tribunal to be established in almost fifty years.
Yet this is not to detract from the importance attached to the recent invasion of Iraq in 2003 which raises several substantive issues in its own right. A war differing in character from the troubles afflicting the Former Yugoslavia, this conflict permits a thorough analysis of the “superior orders” defence – long a staple of international criminal law – and the individual criminal liability of military personnel found to have committed humanitarian law violations. Should responsibility rest solely with the perpetrator of the offence or is the prosecution of senior military personnel warranted in some circumstances? It is hoped that an accountability study of U.K & U.S forces in Iraq will provide this discussion with a degree of originality as the majority of previous research on this topic has tended to focus on well-documented instances of humanitarian abuse such as war crimes committed during World War II and the humanitarian atrocities underpinning the aforementioned Yugoslav Conflict. Furthermore, the Iraq invasion also gives rise to an intriguing jurisdictional debate regarding the extra-territorial applicability of human rights’ instruments, most noticeably the European Convention on Human Rights.
In attempting to answer the questions outlined above, chapters two & three of this thesis are devoted to an analysis of the ICTY and the differing levels of protection afforded to civilians depending on the classification of an armed conflict. By scrutinising the benefits and shortcomings of this judicial institution, and with reference to salient case law including the Milošević trial, the reader will hopefully be provided with a stimulating and logical argument concerning the effectiveness and expediency of this ad-hoc court. Upon the conclusion of this section, the focus of the discussion shall then shift to the distinction between internal and international armed conflicts and whether such a division was ever warranted in international law. This subject change is a logical progression as the ICTY has contributed significantly in developing this area of law.
Moving on to the Iraq invasion, there are four key elements of this conflict which merit comprehensive analysis. Therefore, chapter four will concentrate on the defence of “superior orders” and the doctrine of command responsibility. Its primary objectives are to ascertain to what extent this somewhat archaic plea in mitigation is still utilised today and to scrutinise the culpability of senior military personnel in relation to transgressions committed by their subordinates. In what can be regarded as one of the major themes of this dissertation, the fifth and sixth chapter shall examine the liability of British soldiers adjudged to have contravened humanitarian law in the context of the Iraqi conflict. Reference shall also be made to the jurisdictional uncertainties surrounding the E.C.H.R.’s application in Iraq, a novel predicament facing British courts today.
It would amount to a substantial oversight to undertake a study of international humanitarian law and its accompanying criminal liability without considering the impact of the International Criminal Court, the first permanent institution dealing with criminal offences of an international nature. On this basis, both the achievements and challenges facing the ICC will be examined with particular attention being paid towards the United States persistent refusal to meaningfully cooperate with the ICC. Finally, the conclusions from each previous chapter shall be combined to formulate an overall response to the central research questions posed above.
International humanitarian law has proved to be an emotive topic. It is therefore unsurprising that the key issues have been the subject of fervent debate. There are a number of academic textbooks which provide an excellent overview of this subject area in general and several of these have been referred to for familiarisation purposes. Yet as useful as these resources were, they did not provide a comprehensive analysis of the central themes relevant to this dissertation. Thankfully, there appears to be an abundance of literature devoted to these seminal issues, some of which shall be discussed below.
It is evident that the ICTY has been the target of substantial criticism, much of which appears to be unfounded or even capricious. For example, one author highlights that many critics believed that the establishment of the ICTY would represent another example of “international inertia” in the Yugoslav conflict whilst another commentator contends that the creation of the tribunal amounts to a conciliatory gesture aimed at mitigating the extent of the international community’s failure to swiftly resolve the crisis. However, both arguments appear to be manifestly erroneous. A cursory glance at the ICTY website reveals that criminal proceedings have thus far been initiated against 161 individuals therefore negating the “international inertia” assertion. Furthermore, to classify the tribunal as an apologetic act on the part of the international community is cynical at best as it is important to remember that before the implementation of the ICTY, there was no judicial mechanism in place to prosecute such violations. It has also been averred that notwithstanding the possibility of political interference, the chief drawback of the ICTY is its relative inexperience in the adjudication of war crimes trials. Yet this argument is a moot point as a degree of inexpertness is surely an axiomatic consequence of establishing a new judicial body.
However, refuting these arguments in no way implies that the ICTY has been bereft of significant problems. On the contrary, it has encountered major challenges, many of which have been well documented. For instance, the Appeal Chamber’s decision that the Tribunal possessed jurisdiction to rule on a motion which challenged the legitimacy of the ICTY’s establishment has come under scrutiny. One writer submits that it is highly dubious whether a panel of judges of the highest moral character and integrity would be capable of delivering an objective ruling regarding the legitimacy of their own institution. There is a certain degree of credibility in the author’s suggestion as it is cannot be definitively stated that it is outwith the realms of possibility that a judge’s ruling could be biased when deciding such a matter.
A further difficulty which has plagued the ICTY is the matter of State co-operation. It has been highlighted that because the tribunal does not exercise control over the territory where the crimes occurred, it lacks the power to arrest or compel accused persons to appear before it. It is therefore perfectly logical to assume that a correlation exists between the efficiency of the tribunal and the extent to which States are willing to assist in the arrest, detainment and transfer of suspects over into the custody of the ICTY.
With regards to the doctrine of command responsibility and the “superior orders” defence in the context of the Iraqi conflict, a number of interesting viewpoints have been advanced. When it comes to punishing soldiers for committing human rights transgressions, one commentator has validly pointed out that it would be absurd for military authorities to prosecute offenders if such orders in fact originated from senior personnel. Interestingly, academics have not been the only group to express their views on this matter. Human Rights Watch, a non-governmental organisation which promotes the protection of human rights, has advocated both the appointment of a special prosecutor and the establishment of an independent commission to investigate and prosecute senior U.S. military officers found culpable of prisoner abuse. As commendable as these suggestions are, it is highly unlikely that serious thought was ever given to their implementation as it could have resulted in potentially devastating ramifications for the Bush Administration. Supporters of this strategy may have fresh cause for optimism under the more liberal tenure of President Obama, but the likelihood that policies of this nature would actually be put into practice still seems remote. Lastly, it should also be noted that there has been extensive media coverage on both sides of the Atlantic of Iraqi prisoner abuse committed by both U.S and U.K forces.
Turning now to the ICC, the existing literature indicates that there are widely divergent viewpoints concerning the efficacy of the court. On the one hand, it has been posited that one of the main benefits emanating from the creation of the ICC was the express declaration that provisions applicable to internal armed conflicts attracted individual criminal responsibility. This assertion is rather apt as the primary classification of serious violations of Common Article 3 of the Geneva Conventions as “war crimes” is undoubtedly representative of a significant advancement in international humanitarian law.
Conversely, deficiencies in the Rome Statute have also been cited, namely the omission of enforcement and punitive measures in the event of a State’s non-co-operation. Again, this is a salient point to make. The ICC is heavily dependant on mutual collaboration between itself and the signatories of the Rome Statute. It logically follows that a lack of State co-operation would render the court largely toothless meaning that its creation could quite feasibly be described as an exercise in futility. It is clear that these arguments offer tangible evidence that the views on the ICC are rather polarised.
Finally, reference must me made to the International Committee of the Red Cross’s guide to customary international law. Although it is indubitably an indispensable text in understanding and interpreting the main instruments of international humanitarian law, it has been referred to sparingly on this occasion as greater attention has been devoted to the actual legal provisions currently in force.
In conducting research for this project, it has become evident that because international humanitarian law encompasses such a vast subject area, there are no categorical answers to the questions posed above with a multitude of differing opinions offered on a wide variety of topics. That being said, several research methodologies have been utilised in conjunction with one another in the hope that this will ensure that both a stimulating and balanced argument is provided.
An analytical approach has been adopted as the primary research methodology underpinning this dissertation. Such a strategy is justified in these circumstances as it is the most efficient means of collating and dissecting the extensive amount of relevant literature on this topic. Analysis of the main issues shall comprise a number of elements including the scrutiny of relevant case law & legislation, the consideration and discussion of academic viewpoints, and the factoring in of recent developments where appropriate. To facilitate this process, a number of data collection methods have been utilised including the extensive use of library-based resources such as academic textbooks and relevant journal collections. Electronic databases such as Westlaw and LexisNexis have also figured as prominent research tools whilst being supplemented by other web-based resources comprised of appropriate legal websites and up-to-date media outlets. Moreover, the international dimension of this thesis necessitated the incurrence of a trial subscription fee to Hein Online, a comprehensive American legal database. This action proved to be justified as it allowed for the perusal of scholarly materials which would have otherwise been inaccessible.
Ever since this project’s inception, it has been envisaged that analytical discussions would be complemented by a degree of empirical research so as to provide this thesis with a measure of originality. This has been achieved through the creation of a short questionnaire which has been distributed to relevant academics in the U.K, the U.S & Canada in keeping with the global theme of this dissertation. The main aim of this exercise was to accumulate a range of viewpoints which would then be incorporated into the main body of the thesis.
Although the application of the above methodologies has resulted in the accomplishment of the primary research objectives, the process was beset by several noteworthy difficulties. Unfortunately, there were a number of relevant materials which could not be accessed as the university did not subscribe to these sources. This was regrettable in the sense that the particular texts in question were highly relevant to the subject-matter under consideration. In the context of the research questionnaire, securing the participation of willing academics was by no means a foregone conclusion as prospective enquiries were consistently rejected. Notwithstanding the fact that a significant number of recipients have failed to acknowledge receipt of the questionnaire, the majority of responses fell into one of two categories. Many academics cited busy schedules as their reason for non-participation which is perfectly understandable. On the other hand, several individuals held dubious opinions concerning this particular research approach. However, these reactions were somewhat anticipated therefore justifying the thorough and extensive implementation of this research technique.
As a result of time constraints and other academic commitments, it has not been possible to research this subject in as much depth as was originally intended. It was hoped that an opportunity would arise to undertake some quantitative research by conducting an opinion poll. Taking into account the level of controversy which often surrounds international humanitarian law, it was felt that an exercise of this nature would have been appropriate given the likelihood that the majority of people would have strong opinions on several of the main issues discussed above. Carrying out an opinion poll would also have proved advantageous in several key respects. In stark contrast with qualitative research methods such as focus groups, an opinion poll facilitates the collection of data from a diverse representative sample of society in a relatively short period of time. By employing such a method, this research paper would have been provided with a fresh perspective as conclusions regarding society’s attitudes towards international criminal liability could have been extrapolated through the analysis of the statistical data at hand. In particular, it would have been fascinating to ascertain whether a marked difference in opinion exists based on objective factors such as age or gender.
Chapter 2: The ICTY – a mixed success?
At the outset, it is important to mention that although this chapter is primarily concerned with significant deficiencies of the ICTY, the significance of its contribution towards international jurisprudence is indisputable. It would be wholly appropriate to classify the tribunal as one of the fundamental underpinnings of modern international criminal law. The ICTY’s achievements have been well documented including its rapid establishment with minimal resources in order to satisfy the growing demand for the growing demand for an international judicial forum capable of prosecuting war crimes committed in the Balkans. Having not only provided the necessary impetus for the development of customary international law, the ICTY also served as the ‘springboard’ for the establishment of several other international tribunalsand perhaps more importantly, the International Criminal Court.
One of the fundamental obstacles facing the ICTY since its inception has been the assertion of its legitimacy in recalcitrant States in which it purports to enjoy jurisdiction. It has been aptly observed that States which oppose the international competence of the tribunal can simply grant their citizens immunity from prosecution under the principle of State sovereignty thus severely impeding the functionality of the ICTY. The legitimacy of the tribunal has proved to be a recurring theme. This unfortunate fact is highlighted by the refusal of former Serbian political leader Radovan Karadzic to attend the preliminary stages of his war crimes trial. Further evidence of this pattern can be discerned from the recent announcement that Vojislav Šešelj, leader of the Serb Radical Party, is to face additional legal proceedings for contempt of courts as a result of disclosing confidential information regarding protected witnesses. Such conduct is illustrative of the blatant disregard still exhibited towards the tribunal by some defendants.
It is not difficult to empathise with victims’ families who felt that justice had escaped them upon learning of the death of Slobodan Milosevic in custody. The frustration and need for closure felt by so many was concisely articulated by one mourner who stated that:
“His punishment could not bring back my son but it would be a drop of satisfaction in a sea of pain.”
It is submitted here that Milosevic’s death is representative of perhaps the gravest judicial error ever committed by the ICTY.
Before Milosevic’s trial began in earnest, the prosecution lodged a motion for the joinder of the three indictmentsregarding war crimes committed in Kosovo, Bosnia & Croatia respectively on the grounds that, inter alia:
“Joinder will result in a shorter and more consolidated trial timetable overall.” [Emphasis added]
In hindsight, this is probably the most ironic pleading ever submitted in an international criminal trial. At first instance, the application was rejected as the Trial Chamber held that the connection between the three indictments was “too nebulous,” a decision which, after close scrutiny, appears to be legally sound. Regrettably, the Appeals Chamber over-ruled this decision and ultimately adopted a much more liberal interpretation of the ICTY’s joinder provisions.
This thesis presents the hypothesis that the Appeal Chamber’s ruling on this matter was materially influenced by the historical significance and political pressure surrounding the prosecution of the defendant. In the context of international criminal trials, it is important to remember that Milosevic arguably represents the most senior military figure to ever appear before an international judicial body. Looking back at the Nuremberg trials, ranking members of the Nazi regime were indeed prosecuted for their complicity in war crimes committed during the Second World War. However, the Führer was not one of them. It is theorised here that had the International Military Tribunal been able to try Adolf Hitler for humanitarian offences, it may well have adopted the same ‘mass charges’ approach implemented by the ICTY. Therefore when it came to Milosevic, there was no precedent to follow meaning that the tribunal, for all intensive purposes, was entering uncharted legal territory. It is proposed that the impact of these external factors contributed significantly towards the ICTY’s overzealous prosecution attempt.
Gideon Boas, former senior legal adviser to the Trial Chamber on the Milosevic case, advocates the alternative strategy of prosecuting a core group of crimes which are representative of the atrocities committed in the three States. This suggestion is welcome as the adoption of such a method would have amounted to an efficient replacement of the “blanket approach” implemented by the ICTY which was largely responsible for rendering the case unmanageable. Notwithstanding the fact that this would have allowed the trial to proceed within more realistic contours, it would hopefully have helped to alleviate the sense of injustice felt by so many Eastern Europeans. It has been stated that Milosevic’s death should not be held against the tribunal on the premise that he was given every procedural right to which he was entitled. Whilst this assertion is prima facie accurate, the ICTY is essentially tasked with reconciling competing interests, namely the right of the accused to a fair hearing contrasted with the requirement for an efficient trial. It would be ridiculous to suggest that this is a simple task. Nevertheless, on this occasion, it is submitted that the ICTY’s gauging of a reasonable balance was grossly miscalculated.
It is feasible that a correlation exists between the length of Milosevic’s trial and the rather lenient rules governing the admissibility of evidence in trial proceedings. For example, a cursory glance of the tribunal’s evidence provisions indicates that there is no rule dealing with the admission of hearsay evidence. In the context of the ICTY, this could prove to be very dangerous. One commentator submits that because there is no prohibition on hearsay, the various parties to the conflict tend to utilise the tribunal as a vehicle for achieving their own specific objectives. Irrespective of whether the motive consists of revenge or provoking the opposition, the outcome is the same – the production of inaccurate or fabricated evidence. The author’s viewpoint is not without merit as the propensity to disseminate false information has been cited by another commentator as one of the main reasons behind the poor public perception of the ICTY in the Balkan States.In short, it has been succinctly observed that:
“…the ICTY suffers from “legitimacy issues” in the sense that it’s not perceived as legitimate or impartial by some of the communities that it ostensibly serves.”
Given the political and ethnic volatility which permeates throughout the region, it is unsurprising that a number of divergent viewpoints exist.
Adopting a rigid set of rules that regulates the admissibility of evidence would cause significant problems given the multitude of States involved in the creation and management of the tribunal. In spite of this issue, the rules of evidence governing both the ICTY and the Scottish legal system shall now be compared, with recommendations being advanced where appropriate. The key disparity between the ICTY and Scotland in this respect is that whilst the propriety of evidence is largely left to the Trial Judges’ discretion, the laws of evidence in Scotland have evolved gradually as a result of an ever-developing body of case law which has consolidated the fundamental principles whilst being supplemented by statutory measures where appropriate. It is appreciated that the ICTY has never been in a position to enjoy such a benefit therefore it must be stressed that the following suggestions are purely theoretical.
If the tribunal’s discretionary philosophy towards the admission of evidence was implemented in Scotland, then both the civil and criminal justice systems would grind to a screeching halt. In essence, the imposition of restrictions regarding the propriety of evidence has been imperative in preserving the expediency of the Scottish legal system. It is proposed that had similar safeguards been enacted at the ICTY, then this would have benefited the tribunal enormously. For example, the general exclusion of hearsay evidence is a well-ingrained tenet of Scots law albeit there are certain exceptions where evidence of this nature is permissible e.g. hearsay evidence may be adduced in court where the maker of the statement is deceased.
Hypothetically speaking, had such rules existed at the time of the Milosevic trial, then the ICTY would have enjoyed four distinct benefits. First and foremost, admissible items of evidence would have been afforded a greater degree of probative value. This would have had the corollary effect of minimising the extent to which the tribunal would have been deluged with vast quantities of unverified conjecture. Thirdly, the exclusion of impertinent evidence would have probably resulted in proceedings being concluded before the defendant’s death. Lastly, and perhaps most importantly, the culmination of Milosevic’s trial coupled with a guilty verdict would have resulted in a massive public relations boost for the tribunal as the prosecution of Milosevic would have contributed to a marked improvement in public opinion regarding the value and legitimacy of the ICTY.
Chapter Three: The international/internal armed conflict divide
The potential effectiveness of the Geneva Conventions was arguably compromised from their very inception owing to several restrictive conditions regarding their applicability. World War II served as the catalyst for the implementation of the Conventions which were presumably aimed at preventing recurrences of wartime atrocities such as the Holocaust which eradicated approximately six million Jews across Europe. Proceeding on the rationale that this was indeed the prime justification behind the drafting of these international treaties, the inclusion of the “international armed conflict” distinction arguably represents a self-limiting approach which actually makes the accomplishment of the Conventions’ original objectives a much more difficult proposition.
The underlying motive behind this categorisation was that it prevented these instruments from impinging upon the relationship between a State and its nationals thus ensuring that State sovereignty was maintained. Yet considering that the systemic purge of the Jews in Eastern Europe could quite rightly be described as the most barbaric and inhumane act of the 20th century, this reasoning is rather unconvincing. Furthermore, fast-forward over sixty years later and the weight attached to the exercise of unfettered domestic jurisdiction has dissipated dramatically. It has been submitted that the continual progression of international humanitarian law has negated the extent to which States can hide behind the traditional principles of nationality and sovereignty in order to avoid liability for their transgressions.
The Tadic judgment effectively illustrates the restrictive nature of the “nationality requirement” ensconced in the Fourth Geneva Convention. The seminal issue facing the Trial Chamber was whether the non-Serb civilian victims in Bosnia were under the control of a foreign Power engaged in the conflict. This argument was originally decided in the negative and was detrimental in several key respects. The major consequence of this decision was that the civilians in question were only entitled to the protection offered under Common Article 3 of the Conventions which instituted minimum humanitarian standards of conduct applicable to domestic conflicts. By contrast, there is absolutely no scope for derogation in relation to liability for actions which fall under the “grave breaches” regime. Consequently, the major disparity between the deterrent factors of these respective provisions is blatantly obvious.
Perhaps one of the most contentious aspects of the Trial Chamber’s ruling was that it gave rise to the legal absurdity that the defendant was culpable for crimes against humanity, but was absolved of liability in respect of violations of the “grave breaches” regime. Close inspection of the ICTY Statute indicates that the categories of prohibited behaviour contained within each instrument bear striking similarities to each other. Moreover, it would be reasonable to suggest that the severity of the prescribed conduct under each heading is analogous on the whole. In adopting this hypothesis, it appears that Tadic initially avoided further prosecution on a legal technicality. Considering the brutality of the acts in question, it is difficult to reconcile this decision with the principal of logical judicial analysis.
Thankfully, the ICTY eventually arrived at the right decision, but in doing so, the Appeals Chamber was compelled to adopt a more expansive interpretation of the “nationality requirement.” It averred that the scope of Article 4 also encompassed civilians who, although sharing the same nationality with a Party to the conflict, no longer owed allegiance to that faction meaning that any modicum of protection which they had previously enjoyed was now lost. It is reassuring to observe that the ratio decidendi of the Tadic Appeal r
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