Humanitarian Law and the International Criminal Court

Humanitarian Law and the International Criminal Court

The International humanitarian law presides over armed conflicts and/or war as well as the resultant effects. The goal of its implementation is to minimize the effect of war on people and protect property. The main universally accepted tools of the International Humanitarian law are the four Geneva Conventions. They protect the wounded, the sick, captured civilians, prisoners of war, medical personnel, and medical establishments. However, the four conventions contain a common article that stipulates the key principles that apply to all parties in non-international armed conflicts. They include the prohibition of maltreatment of victims, non-discrimination in the humane treatment towards victims, and the prohibition of hostage-taking. However, until recently, the prosecution of the transgressors of human rights relied on the prosecution within countries. Therefore, the International Criminal Court (ICC) was established in1998, by the Rome Statute to fill the gap by providing a means of prosecuting the culprits if the local courts fail. The jurisdiction of the court includes four varieties of crimes; war crimes, crimes against humanity, genocide, and crimes of aggression. The essay below discusses the connection between Humanitarian Law and the International Criminal Court.

The international humanitarian law, as well as the international criminal court, derive their origins from the Geneva conventions and additional protocols. Despite the comprehensive nature of the Geneva conventions, they do not cover the human suffering inflicted by war in totality (Sassoli and Bouvier, 1999). The 1949 conventions leave gaps in crucial jurisdiction aspects of humanitarian law, such as the provisions related to the protection of civilians from the adversities of the hostilities and the behavior of the combatants. Therefore, the two protocols were adopted in 1977 to supplement the Geneva conventions. The Additional Protocol 1 relates to the protection of the victims of international Armed Conflicts while the additional protocol 2 relates to those affected by the national armed conflicts (International Committee of the Red Cross, 1983). Additional protocol 1 regulates the manner in which military operations should be conducted and act as a reminder to the combatants that the use of war arsenal may inflict unnecessary suffering or superfluous injury. This protocol also regulates the military attacks by suggesting the potential targets and prohibits indiscriminate attacks and reprisals against innocent civilians. The application of additional protocol 2 has progressed recently due to increased conflicts of non-international character after World War 2. This protocol only applies to internal conflicts perpetrated by dissident armed forces that assume control of a certain region within the territory. Some of the attacks that are considered discriminate by the protocols include the one that can cause the incidental loss of civilian life or actions that may be detrimental to the welfare of humans.

International humanitarian law is increasingly being applied in solving cases related to armed conflicts. According to Arnold & Quénivet (2008), the trend can be linked to the 1968 United Nations Human Rights Conference held in Tehran that not only proposed the application of the humanitarian law but also enhanced the application of this law by the United Nations. The consequences of the violation of international human rights are incumbent not only on the individuals but also upon the involved states. The conventions of 1949 indicate that all states are liable to the responsibilities meted upon those that flaunt human rights regardless of their economic orientation. The relations of the human rights and humanitarian law can also be seen in the bodies responsible for monitoring and implementation of international law. Thus, the Security Council has increasingly been citing humanitarian law when undertaking its mandate. International criminal law is a relatively new concept of humanitarian law. Traditionally, most states exercised jurisdiction over the prosecution of the crimes committed within their territory by their citizens (Arnold & Quénivet, 2008). However, the increase in international crime, such as piracy made many countries exercise jurisdiction regardless of where the crime is committed or the nationality of the pirates. This encouraged states to develop treaty laws that regulated and defined how the international laws were interpreted, especially laws of the armed conflict (LOAC), genocide, crimes against humanity, and terrorism. The universal principle is exercisable by states.

The moral perspective of humane and inhumane treatment of victims and prisoners is enshrined in the Geneva Conventions of 1949, which proposes that unlawful combatants should be handled humanely and should not be denied their rights to a fair trial (International Committee of the Red Cross, 1949). The 1948 Universal Declaration of Human Rights indicates that people should not be tortured or exposed to inhuman treatment. The 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment portends that there is no reason that should justify the application of torture, whether internal, political, or threat of war (U.N. High Commissioner for Human Rights, 1984). The fact that these conventions condemn any form of torture indicates that the military personnel serving in the US Navy should set higher moral standards through neglecting any acts that dehumanize people. Another crucial development that enhanced the development of humanitarian law is the establishment of the international labor organization in 1919. This enhanced the humanitarian efforts through the establishment of treaties and supervisory mechanisms geared towards improving the social and economic well-being of workers. Most of the developing states have stated that empowerment, for instance, the provision of economic resources is crucial in their attainment of the right to acquire and own wealth. Thus, the general observation is that the humanitarian law protection accorded to people facing a humanitarian crisis should not compromise their rights or discriminate against them (Aspremont, Reisman & Noortmann, 2011). The humanitarian law prohibits the application of torture in the form of starvation as this destroys their means of survival. The core humanitarian right is that no person should be exposed to inhumane or painful treatment. The international humanitarian law also includes an absolute prohibition on such behaviors. Of importance is the protection of children and family life from both the international and national threats to human rights.

The humanitarian law also respects the religious freedoms of people by allowing the detained civilians to exercise their own religion and providing the religious minister special protection. The dead are also supposed to be given a decent burial in accordance with the propositions of the Geneva Convention. According to Arnold & Quénivet (2008), the crucial aspect of human rights that is totally absent from humanitarian law is the political rights and the mode of government. However, the law is always in play because the political reasons make the states insist on its implementation while ignoring it on other occasions depending on the situation and the protection of various rights. It is hoped that the increased interest in Humanitarian law will lead to increased demand for the law to be respected in all conflicts. The need for an international organ capable of implementing the laws related to human rights led to the establishment of the ICC.

The ICC was formed under the ratification of the Rome Statute to prosecute the perpetrators of human rights, especially those responsible for serious crimes against humanity like genocide and war crimes (Stephan, 2000). The International criminal court was created as an instrument for aiding in the application of the international Humanitarian Principles and upholding the humanitarian laws. This court exists as a defender of human rights at the international level. This is inclusive of the rights of prisoners under detention for various international crimes. According to the article published in the Economist, on Terrorism and civil liberty: Is torture ever justified? (2007), the law the international humanitarian law indicates that even the tragic events of 9/11 events should not make any rich democracy reverse its legal instruments and legalize torture, especially severe torture. The idea is that they might lead to the extraction of misleading information as well as death that may aggravate the situation instead of looking for a solution. The thought of applying severe torture measures, such as the use of a rack and pulling off toes makes civilized people and defenders of human rights squirm. Many would rather use less severe measures, such as a little sleep deprivation or even water dunking for interrogation.

Although studies have shown that the majority of public support the application of less severe measures for torture, Webster (2006) supports the propositions of the humanitarian law and warns that allowing even less severe forms of torture to encroach into the legal systems encourages the legalization of the vice as well as increased human suffering (Webster, 2006). After all, the military and other security organs do not exist to torture people or kill potential suspects, but to enforce the law that condemns torture. In fact, Barry, Hirsh, and Isikoff (2004) opine that torture was supposed to be a normal method of military interrogation but was only allowed within the confines of a highly secretive special security operation designed to interrogate highly-potential targets. In a humanitarian view Roth, Worden and Bernstein reject any form of torture in their book Torture: Does It Make Us Safer? Is It Ever OK? : A Human Rights Perspective. They argue that the lesser forms of torture act as the gateways for more severe forms to the extent that all forms of mistreatment of torture should be banished. Although these authors admit that humans have managed to craft admissible forms of interrogation methods, any form of torture is criminal and punishable, especially the cases involving the international jurisdictions, “I accept that a slap is not the same as beating, but I still do not want interrogators to slap detainees, because I cannot see how to prevent the occasional slap deteriorating into a regular practice of beating” (Roth, Worden, and Bernstein, 2005, p. 22). In line with this perspective, it is clear that liberal values imply that it is wrong to torture prisoners. However, various provisions in the statute do not inspire confidence in the ICC as an impartial and non-political instrument for the protection of human rights (International Criminal Court, 2005).

The various in-built limitations may lead to selective justice whereby the more influential countries might use it for determining which cases should be prosecuted. For instance, the atrocities committed during the Palestine-Israel war have not been investigated or brought before the council although there is a lot of evidence of the contravention of human rights. The limited jurisdiction of the ICC to most serious crimes of international concern as indicated in the statute is the first instance of ambiguity. The court also lacks the practical means of enforcing its orders and decisions because it lacks a police force of its own. The ICC relies on the transfer of suspects to the court after the individual states have investigated the cases. The prosecutors have also limited powers for undertaking investigations, for instance, he is not allowed to undertake exhumations or compel witnesses.

Despite these limitations, the court has helped in bolstering international humanitarian law through the provision of various benefits, such as certainty through the definition of the various legal notions that were previously not understandable; specificity through the enumeration of the instances of the and war crimes; predictability with the likelihood of more consistent jurisprudence; universality thorough the adoption of a universal approach against international crimes; representativity whereby its formation involved input from both developing and developed countries; victim-sensibility and remedial measures.

The existence of conventions and international legal instruments, such as the ICC that inhibit any form of abuse to human life has not reduced the persistence of human rights violations in many countries. According to Hathaway (2004), countries that have ratified treaties related to outlawing torture are more likely to apply torture compared to those that have not joined such international conventions (Hathaway, 2004). One of the causes of the increase in the violation of human rights during suspect interrogation of terrorist suspects has been linked to the increased support of the public towards forceful interrogation of suspects. The 9/11 terrorist invasion increased the public support use of inhumane treatment during the interrogation of terrorists. The supportive opinion is based on the fact that interrogation of key suspects through torture can assist in thwarting terrorism activities at a reduced cost to democracy and civil liberties

Conclusion

The International humanitarian law is a section of international laws that regulates armed conflicts and protects victims from inhumane treatment. Some of the benefits of the ICC in the implementation of humanitarian law include certainty, specificity, predictability, universality, representativity, victim-sensibility, and remedial measures. The three main challenges that the ICC faces include Exceptionality as most countries strive hard to stay well beyond its reach, Security due to the growth in global terrorism, and enforceability as most of its provision does not conform to the legal jurisdictions for most countries. All states that are conscious of the necessity of upholding the humanitarian principles should ratify and accede to the Statute of the ICC and commit to enforcing its provisions. The capacity-building strategies and education should be carried out to sensitize the public on the importance of international humanitarian law and the ICC. Collectively, these strategies will enhance the global culture that respects human

References

“Terrorism and civil liberty: torture.” The Economist, September 20, 2007.

Arnold, R., & Quénivet, N. N. R. (2008). International humanitarian law and human rights

law: Towards a new merger in international law. Leiden: Martinus Nijhoff Publishers.

Aspremont, J., Reisman, W. M., & Noortmann, M. (2011). Participants in the international

legal system: Multiple perspectives on non-state actors in international law. Milton Park,

Abingdon, Oxon: Routledge.

Barry, J., Michael, H., & Michael Isikoff. (2004) “The Roots of Torture.” Newsweek, May 24,

2004.

Hathaway, O. A. (2004). “The Promise and Limits of the International Law of Torture,” in

Sanford Levinson (ed.), Torture: A Collection. New York: Oxford University Press.

International Committee of the Red Cross, (1949). Geneva Convention relative to the

Protection of Civilian Persons in Time of War. 75 UNTS 287.

International Committee of the Red Cross. (1983). Basic rules of the Geneva Conventions

and their additional protocols. Geneva: The Committee.

International Criminal Court. (2005). Rome Statute of the International Criminal Court. The

Hague: International Criminal Court.

Roth, K., Minky, W., & Amy D. B. (2005). Torture: Does It Make Us

Safer? Is It Ever OK? : A Human Rights Perspective. New York: New Press.

Sassoli, M. and Bouvier, AA. (1999). How Does Law Protect in War? Cases and Documents and Teaching Materials on Contemporary Practice in International Humanitarian Law. ICRC.

Stephan, N. (2000). The International Criminal Court. Tilburg Foreign Law Review, 8, 4,

297-312.

U.N. High Commissioner for Human Rights, (1984). Convention Against Torture and Other

Cruel, Inhuman or Degrading Treatment or Punishment, GA res. 39/46, annex, 39 UN

GAOR Supp. (No. 51) at 197, UN Doc. A/39/51; 1465 UNTS 85.

Webster, E. (2006). “Book Review. Torture: A Human Rights Perspective.” Human Rights

Quarterly, 28(2): 546-551.