Session 1: International Crimes – Current and Emerging Issues
A More Limited War Crimes Law: Better for IHL and for ICL
Rogier Bartels, International Criminal Court and University of Amsterdam
The University of Nottingham’s inaugural International Criminal Justice Conference began with a gripping talk from Rogier Bartels. Providing his insight from his experience at the International Criminal Court, Bartels presented a paper entitled A More Limited War Crimes Law: Better for IHL and for ICL.
Chair: Mando Rachovitsa, University of Nottingham
Panel Report by: Nima Nikkhah and James Chennells
The talk firstly considered the short-comings of international humanitarian law (IHL) – that it was not intended for domestic courts, but rather the battlefield, and that its purpose was to limit human suffering, but not to eliminate it.
This creates two problems: (i) military officials advise the commanders, not lawyers, and (ii), in modern use, IHL is strained by the perception that it can be used to eliminate suffering. These issues blur the line between international criminal law (ICL) and IHL, since it creates the false perception that an act must either be a war crime or is lawful, when in fact the act may still be prohibited.
Additionally, IHL is not designed to account for conflicts based on particular characteristics, such as race, gender and ethnicity. However, Bartels observed that the answer to resolving the gaps in IHL is not to expand war crimes law (as a branch of ICL).
The purpose of ICL and war crimes law is not to regulate armed conflict and it lacks the conceptual tools and normative structure to enable it to account for the practical exigencies of armed conflict and to balance the various objects and purposes that IHL attempts to reconcile.This is particularly in light of the broader scope of non-international armed conflicts since 9/11.
Bartels pitched a good remedy to this situation. He argued that we must seek to differentiate between the old Geneva law (regarding people in the belligerents’ power) and the Hague law on the conduct of hostilities (regarding people not within the scope of the belligerents’ power).
This would be a welcome change if it could also open up the way to a more rigorous observation and enforcement of International Human Rights Law (IHRL) in armed conflict. Such a change could have this effect as it would make it easier to limit war crimes to either Hague law or Geneva law, thus necessitating new protections elsewhere.
In the context of conflicts, throughout Asia in particular, the notion of a justified war and justified military action seems to be used to justify putting human rights obligations to the wayside. By highlighting clear restrictions through ICL, IHL and IHRL, it is hoped that the protection that can be afforded by the law is maximised.
The Creation and Sharing of User-Generated Content as the War Crime of Outrages upon the Personal Dignity of Deceased Persons under International Criminal Law
Konstantina Stavrou, University of Vienna
Stavrou explored the material scope of war crimes under the Rome Statute to determine whether the treatment of deceased individuals could be considered an outrage upon personal dignity.
In the European criminal courts, this type of behaviour may lead to conviction if the deceased’s body was used in a demeaning manner (kicked, spat on) or if the body was used as a trophy. While articles 8(2)(b)(xxi) and (c)(ii) of the Rome Statute make no explicit mention of deceased persons, deceased persons are included with the Elements of Crimes at footnotes 49 and 57. However, whilst article 21(1) suggests that the Elements of Crimes would be binding, there is heavy suggestion that the Rome Statute negotiations were conducted on the proviso that they would not be enforceable.
Whilst the courts may not be ready to interpret the core crimes in such a manner, there has been enforcement of a similar idea in the ICTR and the ECtHR, where actions perpetrated against the dead have had consequences on the living – this could result in conviction.
Rethinking Corporate Liability in International Criminal Law – The Case of Ecocide
Jonatan Rigo Garcia, Universitat de les Illes Balears
Garcia’s presentation discussed the culpability of corporations in the commission of ecocide. He highlighted the lack of a consistent international definition but offered the definition proposed by ‘Stop Ecocide International’. This proposed definition states that ecocide is an unlawful or wanton act committed with the knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts. Jonatan also provided examples of private corporations complicit in acts that amounted to ecocide. For instance, in the Vietnam War, the US military was supplied the chemicals used in Agent Orange by Monsanto, a private company. Similarly, private companies developed and supplied the Zyklon-B used in Gas Chambers in WWII. Jonatan highlighted that there has been a desire to implement provisions holding private companies liable for acts of ecocide. Currently, 133 domestic jurisdictions recognise corporate liability, and 17 international instruments contain provisions on corporate liability. The 2014 Special Tribunal for Lebanon handed out the first conviction of corporations for criminal offences. Despite these positive advances, a comprehensive framework that assigns liability to corporations that commit ecocide is lacking.
"Jonatan highlighted an area of international criminal law I hadn’t previously considered. Before, I had focused closely on the actions of states and the liability associated with these actions when they contravene international law. This presentation made me realise private companies’ role in the international community and the importance of implementing provisions that attribute liability to wrongful acts committed by private corporations."
Are mixed heritage identities recognised and protected in the international crime of genocide?
Sandhiya Sophie Argent, independent researcher and lawyer
Argent discussed whether mixed heritage identities are protected in the international crime of genocide. She highlighted that historically, mixed heritage identities were targeted for extinction in the Nazi regime and were the first people to be attacked in the Rwandan genocide. Little acknowledgement has been paid to the existence of mixed groups, as evidenced by the fact that it was not recorded in Rwanda. Argent then spoke about how the International Criminal Tribunal for Yugoslavia (ICTY) and Rwanda (ICTR) approached the question of race and ethnicity in cases of genocide. These criminal tribunals acknowledged that there was no international definition of what a protected group is within the crime of genocide set out in the Rome Statute. The tribunals initially applied an objective definition of race, looking at skin colour. However, following criticism, they emphasised perception and more subjective identification factors. Argent argued that it is important to consider objective factors, but relying too heavily on them fails to acknowledge the complexity of identity. Moving away from a more rigid concept of race allows for the recognition of discrimination experienced by mixed heritage. This will allow for more protection of mixed heritage, which might not necessarily be covered by the protected groups.
Argent then discussed the complexities of determining whether a group qualifies as one of the protected groups under Article 6 of the Rome Statute. She highlighted the significance of acknowledging the mixed heritage identities within the context of genocide.
"This is an aspect I had yet to consider in my studies of international law. It demonstrates the importance of considering subjective factors when determining if a group qualifies for protection. Additionally, it underscores the importance of having flexibility within the law to ensure that the experiences of those with mixed heritage identities are not overlooked."