Efficiency of international tribunals in addressing war crimes
Authored By- Syeda Khizra rizvi
Keywords: international community, war, criminal courts, tribunals.
What difference does it make to the orphans, the dead and the homeless, whether the mad destruction is wrought under the name of totalitarianism or in the holy name of liberty or democracy? These concerns of Mahatma Gandhi have found echo in the International Humanitarian Laws formulated to govern the conduct of states and individuals during dispute. War or armed disputes among nations have been a part of the world history since time immemorial. Though, war can squarely fall under the definition of crime, there are specific acts on part of the opposing troops, that are detested by international community as being violative of human rights.
Though several efforts have been made by the international community to avoid such war like situation, not all efforts have proved to be fruitful and thus there arises a need to regulate the conduct of the states during such times. War in any form has disastrous ending results. Uncodified rules of conduct have to some extent proved to act as cushion thereby facilitating the aftermath on civilians. Upon a microscopic view of the humanitarian laws, one would come to know that these laws to a great extent form a part of jus cogens principle of international law.
There seems to exist no substantial definition of war crimes which could be used by criminal tribunals and courts while handling with war crimes. Till date the commonly widely used approach about a war crime is an act which is considered as violative of the law of war and has been criminalized.
The rules governing war/dispute finds its roots way back in the eighteenth century. However, the concept of war crimes has evolved at a much later time. The earliest traces of the concept of war crimes takes back to 'the Lieber Code, issued by President Abraham Lincoln in 1863 to regulate the conduct of Armies of the United States in the Field.
Though it did not refer to war crimes, the Lieber Code formulated that the law of war disclaimed all cruelty and bad faith concerning engagements concluded with the enemy during the war, and that violations shall be severely penalized. The Code provided for prosecution of soldiers who infringed the law of war.'
Origin of International Tribunals handling with war crimes
In the post-World War – II period, Allied powers had sought to establish an International Tribunal to prosecute Nazi Officials for crimes performed against humanity. This tribunal was termed as the Nuremberg Trials. The trial had extended over for 13 days but with no effective outcome. It failed to act as a deterrent against future war crimes and was thus perceived as being ineffective and inefficient in performance. However, it is considered as a milestone in the idea of creation of such an international establishment dealing with war crimes and crimes against humanity.
In wake of the gruesome crimes against humanity in Yugoslavia in 1990, the United Nations took it upon its responsibility to set up an International Criminal Tribunal for Former Yugoslavia (ICTY) which provided victims an chance to voice the horrors they witnessed and experienced, and proved that those suspected of tolerating the greatest responsibility for atrocities committed during armed conflicts can be called to account.' It may be noted here that ICTY was operative for a period of 24 years commencing from 1993 to 2017. During its mandate, it has greatly contributed in handling with crimes against humanities and war crimes.
Formation of International Criminal Court
Owing to the success of ad hoc criminal tribunals in dealing with war crimes, a need was felt by several nation states for establishment of a permanent judicial body so as to deter prospective war criminals, bring justice to the victims of atrocities and to establish the rule of law in virtue of peace Accordingly, the Rome Statute of International Criminal Court was taken up by the United Nations whereby the permanent International Criminal Court (ICC) is established.
'The Rome Statue grants the ICC war crimes jurisdiction over grave breaches of the Geneva Conventions of 1949, serious infringement of Common Article 3 to the Geneva Conventions, and other serious violations of the laws and customs applicable in international armed conflict and NIAC (non – international armed conflict). The ICC having been found entirely under the watchful eye of the UN Security Council, thus giving increment to various apprehensions regarding fair play. The Rome Statute has been adopted and ratified by 111 countries and it is pertinent to note that the non – signatories to the Statute contributing to most of the world's population.
Working of international tribunals
Upon a microscopic analysis of these tribunals, one would experience an epiphany, that these tribunals had been set up by specific nation states to deal with crimes performed within a specified territorial jurisdiction. Even the concept of establishment of a permanent international judicial forum was promulgated by the superpowers and thus arises criticism, in respect of independence of these tribunals. However lopsided the working system of these tribunals may seem, the efforts of the world community in creating a new threshold for dealing with gruesome crimes cannot be disregarded. One such example is the formulation of International Criminal Court.
Though there exist various roadblocks in efficiently dealing with war crimes by international forums, the efforts in this behalf are noteworthy and have till a large extent acted as a deterrent against commission of war crimes. The core concept of establishment of an international criminal forum is itself an achievement and further, the responsibility of such crimes was transferred from state to that of an individual. This paradigm shift from state responsibility to individual responsibility has largely helped in decrease of war crimes. Though there exist various apprehensions with context to the impartiality and efficiency of these tribunals in dealing with war crimes, there is data which records a conviction rate of 36%.