Human Rights in War: When Does International Law Intervene?

For centuries, war has stripped millions of people of their human rights. Civilians are regularly collateral damage to war, and those responsible are either held accountable after the atrocities have occurred or, sometimes, never. The intersection between human rights violations and war is broad, and the law behind it has fluctuated heavily over the past century. This article will analyze the international law which organizations like the International Criminal Court employ in instances of war, and use case studies such as the current Ukraine-Russia war to examine when action has been taken. War makes international law a much more complex territory, which allows some crimes to go overlooked or unpunished.

The International Criminal Court (ICC) is an international tribunal established by the 1998 Rome Statute to prosecute individuals for war crimes, crimes against humanity, genocide, and crimes of aggression [1]. The ICC’s jurisdiction covers crimes committed within the territory of states that have ratified the Rome Statute or by nationals of states that have ratified the Rome Statute, regardless of where their crimes were committed. Notable countries that ratified the Rome Statute include the majority of European Union member states and countries in Africa, Latin America, and other regions. However, there are also countries that have withdrawn from or never ratified the Rome Statute and therefore are not bound by its provisions on war crimes, such as the United States, Russia, China, and Israel.

War crimes are defined under the Rome Statute as serious violations of the laws and customs of war committed during armed conflicts and constituting grave breaches of the Geneva Convention of 1949, or other serious violations of the laws and customs of war that are recognized under international humanitarian law [2]. War crimes can be committed by both state and non-state actors during both national and international armed conflicts.

Analyzing the state of international law for war crimes is always relevant, but it is especially important now because of the recent arrest warrant the ICC issued against Vladimir Putin for war crimes committed during the ongoing Ukraine-Russia war. The International Criminal Court (ICC) has issued arrest warrants for Russian President Vladimir Putin and Russian official Maria Lvova-Belova for an alleged scheme to deport Ukrainian children to Russia [3]. These ICC charges are the first to be formally lodged against officials in Moscow since Russia's unprovoked attack on Ukraine last year [4]. The Kremlin labeled the ICC's actions “outrageous and unacceptable” and stated that Russia does not recognize the jurisdiction of the court [5]. However, Ukrainian President Volodymyr Zelensky thanked the ICC for its decision, calling it “historic” and stating that Ukraine's investigations suggest the Kremlin's direct involvement in the forced deportation of children [6]. ICC Chief Prosecutor Karim Khan said in an interview with CNN that these warrants represent how the basic principles of humanity bind everybody, and that nobody should feel they have a free pass to commit genocide or crimes against humanity with impunity [7]. Like the U.S., Ukraine, and China, Russia is not a member of the ICC, so any Russian officials charged would have to be handed over by Moscow or arrested outside of Russia because the court does not conduct trials in absentia. Human Rights Watch has called the ICC decision a “wake-up call to others committing abuses or covering them up,” and a step toward ending impunity for crimes committed in Russia's war against Ukraine [8]. However, Moscow rejected the arrest warrant, stating that the ICC has “no meaning” in Russia [9].

Putin's arrest warrant is an example of how difficult it usually is for war crimes to be prosecuted, as atrocious as they may be. One reason why war crimes can be difficult to prosecute is because of a lack of evidence. Gathering concrete evidence to prove war crimes beyond a reasonable doubt can be difficult. In many cases, war crimes occur in chaotic and volatile situations where access to the crime scene, witnesses, and evidence may be restricted. Perpetrators of war crimes also often deliberately destroy evidence. For example, during the Nazi regime in World War II, evidence of genocide like gas chambers and crematoria were destroyed by the Nazis to cover up their atrocities, making it challenging to establish the full extent of their crimes [10]. Additionally, war crimes may occur in remote or inaccessible areas, making it difficult for investigators to access the crime scenes and collect evidence [11]. In the conflict in Syria, many war crimes have been committed in areas that are hard to access because of ongoing hostilities or denial of access by the Syrian government, which has hampered the collection of evidence. Furthermore, prosecuting war crimes often relies on testimonial evidence like witness testimonies, which can be subject to challenges concerning their credibility, reliability, and consistency. Witnesses may face difficulties recalling events accurately, may be traumatized, or may face language or cultural barriers, all of which impact the quality and reliability of the evidence they present. One example of this occurred during the International Criminal Tribunal for the former Yugoslavia (ICTY), where reliance on testimonial evidence in cases related to the Bosnian War created challenges due to issues of witness credibility, leading to acquittals and challenges in establishing guilt beyond a reasonable doubt [12].

Political obstacles also pose a threat to the prosecution of war crimes, especially when they involve high-ranking officials or political leaders who may have significant power and influence. Political considerations like diplomatic immunity can hinder the prosecution of war crimes, as powerful individuals or states may resist accountability efforts or shield perpetrators from facing justice. Additionally, witnesses and survivors of war crimes may be afraid of retaliation if they come forward to provide testimony or evidence. For example, during the Rwandan genocide, witnesses were often reluctant to testify due to fear of retaliation by perpetrators or their associates, hindering efforts to collect evidence and prosecute war crimes [13]. Political obstacles can also manifest in the form of a lack of cooperation from states or a reluctance to extradite suspects to international courts. States may refuse to cooperate with international courts, citing sovereignty concerns or political considerations. They may also refuse to extradite suspects, claiming they have immunity or that their national laws do not allow for such extradition. This can further impede the prosecution of war crimes, as suspects may remain out of reach of international courts, making it difficult to hold them accountable for their actions. One historical example of political obstacles hindering the prosecution of war crimes is the case of Sudan's former President Omar al-Bashir, who was indicted by the ICC for alleged war crimes, crimes against humanity, and genocide in Darfur [14]. However, Sudan refused to cooperate with the ICC, and al-Bashir remained in power in Sudan for several years after the indictment, evading arrest and prosecution [15]. Another example is the situation in Syria, where the ICC's efforts to investigate and prosecute war crimes have been hindered by political obstacles. The Syrian government has not cooperated with the ICC and powerful states involved in the conflict have supported different sides, making it difficult to obtain evidence and secure cooperation for prosecutions.

Another problem the ICC runs into when attempting to prosecute war crimes is jurisdictional issues. War crimes can occur across borders, involving multiple countries, and jurisdictional issues can arise when determining which country or international court has the authority to prosecute the crimes. A lack of cooperation or disagreements among nations may impede the effective prosecution of war crimes. For example, the U.S.'s lack of participation in the International Criminal Court has had significant implications for the ICC's ability to investigate and prosecute alleged war crimes involving U.S. nationals, particularly in the context of conflicts in Afghanistan and Iraq. Under the administration of President George W. Bush, the United States withdrew its signature from the Rome Statute in 2002 [16]. The U.S. government expressed concerns about the potential for politically motivated prosecutions of U.S. officials and military personnel and cited concerns about preserving its sovereignty and protecting its citizens as reasons for not becoming a party to the ICC. As a result, the ICC's jurisdiction over alleged war crimes committed by U.S. nationals is limited. The ICC can only exercise jurisdiction in situations where the crime has occurred on the territory of a state party to the Rome Statute, if the accused is a national of a state party, or if the United Nations Security Council refers a situation to the ICC. Since the United States is not a party to the Rome Statute, the ICC's jurisdiction over alleged war crimes involving U.S. nationals is restricted. This lack of cooperation from the United States has created challenges for the ICC in investigating and prosecuting alleged war crimes committed by U.S. nationals, particularly in the context of the conflicts in Afghanistan and Iraq [17]. The ICC has faced difficulties in obtaining evidence, securing cooperation from U.S. officials and military personnel, and accessing witnesses or victims located in the United States. This has impeded the ICC's ability to effectively investigate and prosecute alleged war crimes involving U.S. nationals and has been a significant obstacle to accountability efforts [18].

The ICC has many resource constraints, another reason why more global cooperation is needed for their prosecution to have a larger effect. Prosecuting war crimes requires significant resources including financial, legal, and logistical support. For example, the Lord's Resistance Army (LRA) was a rebel group that operated in Uganda and neighboring countries known for its brutal and indiscriminate attacks against civilians, including killings, abductions, and sexual violence. The International Criminal Court (ICC) issued arrest warrants for Joseph Kony and other senior LRA commanders for their alleged involvement in war crimes and crimes against humanity [19]. However, the ICC faced significant challenges in apprehending Kony and other LRA leaders due to resource constraints. One major obstacle was the remote and inaccessible areas where the LRA operated. The LRA was known for its ability to evade capture by moving through dense forests and difficult terrain, making it challenging for law enforcement agencies to track them down [20]. Another issue was a lack of sufficient resources to carry out arrests and transfers safely. Apprehending high-profile war criminals like Kony requires careful planning, coordination, and resources to ensure the safety of both the law enforcement personnel and the suspects [21]. This includes logistical support such as transportation, communication equipment, and personnel trained in handling high-risk situations. However, the ICC faced limitations in terms of financial resources and operational capacity, which impacted its ability to effectively execute arrests and transfers. As a result, despite the ICC's arrest warrants and efforts to hold the LRA leaders accountable, Kony and other senior LRA commanders remained at large for years, and the ICC's ability to effectively prosecute them was hindered by resource constraints.

It is clear that war crimes and international law are incredibly connected. Unfortunately, the history behind institutions like the ICC shows that they are not equipped to deal with prosecuting all crimes and atrocities that are committed in times of war. The prosecution of war crimes is hindered by a lack of evidence, political obstacles, jurisdictional issues, and a lack of resources. The International Criminal Court has not been fully effective, and is usually only successful in prosecuting war crimes after atrocities have occurred. More cooperation is needed for international law to truly have an effect on war crimes and to continue protecting human rights.

Bibliography

1. United Nations. “United Nations Office on Genocide Prevention and the Responsibility to Protect.” UN Office on Genocide Prevention. Accessed April 14, 2023. https://www.un.org/en/genocideprevention/war-crimes.shtml.

2. United Nations. “United Nations Office on Genocide Prevention and the Responsibility to Protect.” UN Office on Genocide Prevention. Accessed April 14, 2023. https://www.un.org/en/genocideprevention/war-crimes.shtml.

3. Armstrong, Kathryn. “Putin Arrest Warrant: Biden Welcomes ICC's War Crimes Charges.” BBC News, March 18, 2023, sec. Europe. https://www.bbc.com/news/world-europe-64998165.

4. Picheta, Rob. “Putin: ICC Issues War Crimes Arrest Warrant for Russian President | CNN.” CNN, March 17, 2023. https://www.cnn.com/2023/03/17/europe/icc-russia-war-crimes-charges-intl/index.html.

5. Picheta, Rob. “Putin: ICC Issues War Crimes Arrest Warrant for Russian President | CNN.” CNN, March 17, 2023. https://www.cnn.com/2023/03/17/europe/icc-russia-war-crimes-charges-intl/index.html.

6. Ibid.

7. Ibid.

8. Human Rights Watch. “Ukraine: ICC Warrants Advance Justice,” March 17, 2023. https://www.hrw.org/breaking-news/2023/03/17/ukraine-icc-warrants-advance-justice.

9. Picheta, Rob. “Putin: ICC Issues War Crimes Arrest Warrant for Russian President | CNN.” CNN, March 17, 2023. https://www.cnn.com/2023/03/17/europe/icc-russia-war-crimes-charges-intl/index.html.

10. Facing History and Ourselves. “The Death Marches | Facing History and Ourselves.” Facing History and Ourselves, May 3, 2022. https://www.facinghistory.org/resource-library/death-marches.

11. Sekkarie, Sana. “Why Accountability in Foreign Courts for Syrian War Crimes Matters,” November 24, 2020. https://timep.org/2020/11/24/why-accountability-in-foreign-courts-for-syrian-war-crimes-matters/.

12. United Nations. “Witnesses | International Criminal Tribunal for the Former Yugoslavia.” United Nations | International Residual Mechanism for Criminal Tribunals. Accessed April 14, 2023. https://www.icty.org/en/about/registry/witnesses.

13. Koomen, Jonneke. “'Without These Women, the Tribunal Cannot Do Anything': The Politics of Witness Testimony on Sexual Violence at the International Criminal Tribunal for Rwanda.” Signs 38, no. 2 (2013): 253–77. https://doi.org/10.1086/667200.

14. International Criminal Court. “Al Bashir Case.” International Criminal Court, 2009. https://www.icc-cpi.int/darfur/albashir.

15. Ibid.

16. Human Rights Watch. “United States 'Unsigning' Treaty on War Crimes Court.” Human Rights Watch (blog), May 6, 2002. https://www.hrw.org/news/2002/05/06/united-states-unsigning-treaty-war-crimes-court.

17. Ochs, Sara. “The United States, the International Criminal Court, and the Situation in Afghanistan.” Notre Dame Law Review Reflection 95, no. 2 (December 1, 2019): 89.

18. Ibid.

19. International Criminal Court. “Warrant of Arrest for Joseph Kony Issued on 8th July 2005 as Amended on 27th September 2005.” International Criminal Court, September 28, 2005. https://www.icc-cpi.int/court-record/icc-02/04-01/05-53.

20. Human Rights Watch. “Q&A on Joseph Kony and the Lord's Resistance Army,” March 21, 2012. https://www.hrw.org/news/2012/03/21/qa-joseph-kony-and-lords-resistance-army.

21. Human Rights Watch. “Q&A on Joseph Kony and the Lord's Resistance Army,” March 21, 2012.