Is the ICC in danger?

Authored By: Elena Sakelaris

The International Criminal Court was established by the Rome Statute to exercise jurisdiction over some of the most serious international crimes.  As of last Friday, there is one less country under the Court’s jurisdiction.  South Africa decided to withdraw from the ICC after Burundi left the ICC.  Justice Minister Michael Masutha along with other South African officials argued that the Rome Statue conflicts with South Africa’s law that gives sitting leaders diplomatic immunity.  Support for the ICC in Africa has been waning over the past few years as the majority of individuals convicted are African.

Diplomatic immunity is not a new concept; a vast majority of States exercise this principle.  However, many States also recognize the need to limit diplomatic immunity from extending to grave crimes, such as the crimes over which the ICC has jurisdiction.  Throughout history, the severity of a crime generally relates to the position held by the individual committing the crime, and the more powerful a person is the more severe the crime can become.  The atrocities committed during World War II under Hitler’s reign came from the top down.  Powerful individuals, sitting leaders, have the ability to commit the greatest horrors—genocide, war crimes, crimes against humanity, crimes of aggression.  The crimes that the ICC seeks to prosecute are only those of the most serious nature.  The ICC serves an important purpose in preventing or mitigating mass atrocities in places where authorities are unable or unwilling to bring the violators to justice.

South Africa ignored an order by the ICC to arrest President Omar Hassan al-Bashir of Sudan, who faces charges of crimes against humanity, genocide in the Darfur region of Sudan, and war crimes.  Under the Rome Statue countries are obliged to arrest anyone sought by the tribunal.  In refusing to arrest Mr. Bashir, South Africa failed to uphold its obligations under the Rome Statute. 

Many individuals will surely ask why does it matter that South Africa is withdrawing from the ICC when the United States is not under the Court’s jurisdiction?  At this point the biggest fear surrounding South Africa’s withdrawal is that this will begin a trend that other African countries will also leave the ICC.  Furthermore, many human rights advocates were appalled by the decision as well.  Withdrawal from the court could have devastating effects on individuals who have been victims of these grievous crimes.  Leaving the ICC also represents a digression from the advances made by South Africa in promoting human rights within the continent.  Human rights advocate groups within Africa have also argued that the decision to withdraw from the ICC without parliamentary approval is in violation of domestic law. 

It is too early to say whether or not there will be a mass exodus from the ICC, especially of other African Countries following South Africa’s example.  This does mean that South Africa will be accountable for virtually nothing as the country will no longer be subject to jurisdiction under the ICC.  International cooperation is already a delicate topic, and having a prominent country leave the ICC furthers unease internationally because it creates a fear of accountability regarding serious violations of international law and human rights.  

The Candidates' Take on National Security

Authored By: Matthew Goepfrich

“Whatever happened to the element of surprise? We announce we are going after Mosul…for about three months. These people (high profile ISIS leaders) have all left. Douglas MacArthur [and] George Patton [are] spinning in their graves when they see the stupidity of our country”

The above is a Donald Trump quote from the last presidential debate giving significant insight into the ignorance many nonmilitary focused minds have with regard to defeating and combating ISIS. From a pure strategy point it no doubt speaks to many as being a sound argument. Why are we announcing for three months the target of our coalition’s planned military operation? As Donald Trump points out, doing so allows all high value ISIS leader targets to move out.

But people who accept and promote this view point are failing to understand the laws of war at play regarding the announcement decision, and further overvaluing the strategy that surprise would gain for ground forces involved on a sustained attack of Mosul. Indeed, from a purely strategic point, announcing for three months that Mosul will be attacked drains the enemy to exhaustion psychologically in anticipation and constant guard for the inevitable attack. Meanwhile, coalition forces for three months’ practice, improve and verify points of attack and rules of engagement for protection of citizens all while getting a good night’s sleep knowing the attack isn’t that day. And it is this overarching desire for minimizing civilian deaths that makes the three-month announcement both legally sound and more so legally demanded under IHL.

Customary international law obligates countries to give advance warning prior to an attack which may affect the civilian population. Additionally, this has been codified in Protocol I, Article 57(2)(c), specifically calling all warring parties to take the precaution of giving “effective advance warning…of attacks which may affect the civilian population.” This principle, while limited to international armed conflicts, is expanded to include non-international armed conflicts like the attack on Mosul specifically by the Amended Protocol II to the Convention on Certain Conventional Weapons.

Limiting civilian casualties is a principle of IHL and even human rights law as much as it extends and exists in the framework of armed conflicts. Warning then for three months that Mosul will be attacked allows citizens - to the extent possible - to take precautions to move out of the city. But we know how unlikely this is at this point.

ISIS is using citizen populations as human shields. Further, Mosul is being used as the sex slave capital for ISIS. Minority Christian Yazidi women, as many as 3,500, are being held in Mosul as hostages. This three-month period has allowed coalition forces to work on strategic engagement plans to both identify the locations of the hostages, the locations of the human shields, and further practice movements for funneling and protecting these noncombatants out of harm during the assault on Mosul. In this regard, coalition forces, including the Iraqi Army, are living up to the duties of IHL.

Ignorance of these facts is dangerous for anyone seeking the office of the President. MacArthur and Patton are not spinning in their graves. Rather, they are applauding our efforts to live up to the international expectations regarding civilians in times of war.

The Future Application of IHL and ICL

Authored By: Teresa M. Dettloff

International Humanitarian Law (IHL) and International Criminal Law (ICL) have been extraordinarily successful in bringing to justice war criminals who have committed some of the worst atrocities in history, including the genocide in Rwanda, the civil war and genocide in the Former Yugoslavia, and the conflict in Sierra Leone and Lebanon, all of which still have active prosecutorial tribunals. Each of these conflicts has one thing in common—they were predominantly state to state  or intra-state conflicts, and the criminals indicted held positions of power within their respective governments, whether it be political or military positions.

While this has been a success for IHL and ICL, the international landscape has changed, and these bodies of law will have to as well to adapt and continue to be successful and relevant. The most important distinction between conflicts then and now are the parties. In the past conflicts have been between states or warring factions within a state, most conflicts and violations of IHL now occur in confrontations between states and non-state actors. ICL and IHL need to be applied to non-state actors.

For example, Al-Shabab has been wreaking havoc in Somalia, attacking a military base outside of Mogadishu last July. More recently, an individual in Nice, France drove through a crowd during Bastille Day celebrations. What was most alarming about this attack was that there was nothing patently illegal in the preparations; the perpetrator rented a lorry, and drove it himself through a crowd full of people, killing and injuring hundreds of people before shooting himself.

Who do we hold accountable in these attacks? Who could we bring before a tribunal?

ICL is now firmly establishing the principles of joint criminal enterprise (JCE) liability, but whether or not there are more conflicts where this will be applicable remains to be seen. The fascinating part about international law is the fact that the area is so grey; it is a constantly changing and developing area of the law. The issue, however, is that the landscape to which the law applies is rapidly changing as well, and developments in international law lag behind what’s happening out there in the world.

This is not to say that we should abandon international law; in fact, I would argue quite the opposite. International law is a fundamental body of law that not only creates a dialogue about issues between nation-states, but it has resulted in tangible successes. However, to continue to be successful, we need to develop principles of international law that also apply to non-state actors. How that is to be done remains to be seen, but if we continue to develop principles of international law within tribunals, adapting those principles to the changing landscape of the international community, I have no doubt that we can resolve the current issues through tribunals successfully, as we have with the ICTR and ICTY. But if the law can’t keep up with what’s going on out there, it may be years before IHL has an application to modern-day war criminals.

Drone Base in Niger: Diplomacy or Neocolonialism?

Authored By: Alison Davis

Niger – not to be confused with its neighbor, Nigeria – is a West African nation in the Sahel region known for onion and livestock production. It is also ranked 188 of 188 nations on the United Nations Human Development Index (UNHDI) meaning it is the least developed country in the world.[1] The nation’s people are plagued by poverty, illiteracy, food insecurity, and literally  plagues of locusts.

So, why is the US building a $100 million drone base there? From a US national security perspective, it makes sense – in closer proximity to Boko Haram and Al Qaeda in the Islamic Maghreb (AQIM), the location demonstrates an increased emphasis on counterterrorism operations in the region. This is especially relevant considering Boko Haram’s increasing collaboration with ISIS. Why, however, has Niger allowed the US to use its territory to conduct drone operations? Was this decision calculated to align itself with a military superpower or was it a decision coerced through decades of development and aid promises to the impoverished nation?

Aligning with a superpower sounds like an excellent way for a small nation to make its mark and protect itself. Niger has sent troops to battle Boko Haram in Nigeria, and is presently coping with an influx of over 115,000 displaced Nigerians in the Diffa region. There is no doubt that the country certainly stands to benefit in the short term through the ongoing training of its own armed forces and improved intelligence gathering in order to prevent attacks by Boko Haram. The long-term consequences deserve analysis, however, considering the US’s long history of finding itself in precarious situations once instability descends on a country – as is prone to happen when leaders attempt to retain power, and as happened only six years ago in Niger.  In cases like these, the US finds itself with a dilemma: prop up a dictator or lose a military ally – the former promises disastrous consequences for civilians (as in the case of Hissène Habré), but the latter compromises US national security interests.

Even if Niger remains politically stable despite having many of the risk factors for instability as outlined in the UNHDI, it is unclear how aid-dependent countries like Niger are freely able to engage in such high-stakes diplomacy with western nations at all. If they are, then when an MQ-9 Reaper inevitably strikes its first target in the region, Niger should be prepared to make its alliance permanent. And with the accuracy of drone strikes in question yet again, Niger may have taken on more than it can manage.

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[1] Somalia and North Korea are not in the rankings. Find the full 2015 UNHDI report at http://hdr.undp.org/sites/default/files/2015_human_development_report.pdf.