War Crimes As One Of The Most Serious Crimes Under International Law

In the light of media reports concerning crimes committed by Russian forces in Ukraine, the terrorist organization Hamas against the population of Israel, attacks by Houthi rebels on merchant ships in the Red Sea, and the ethnic extermination of the Uyghur Muslim minority by the People's Republic of China, it is essential to present an analysis of war crimes—their legal status, definitions, and examples from case law.

    Armed conflicts are not only prohibited by international law because they violate the fundamental rights and freedoms of humans and citizens; they are also inhumane, disrupting global order and peace, which are essential for the development and prosperity of nations. However, one must not forget the inherent  human dignity—a fundamental, inalienable right that is taken away and destroyed during the commission of war crimes, whether by state actors or increasingly significant non-state actors (NSAs).   

       The inspiration for writing this analysis comes from the ongoing war outside Poland's borders, caused by the unlawful aggression of the Russian Federation against the sovereign state of Ukraine. It is important to note that the start of the war in our eastern neighbour is not February 2022, but rather 2014, when Russian "little green men" occupied Crimea, marking the beginning of the illegal occupation of this region of Ukraine by Russian forces.

       Therefore, it is crucial to outline the legal foundations that define and penalize war crimes, which are clearly described in the primary source of international criminal law i.e. the Rome Statute of the International Criminal Court (ICC) of 1998.

International Criminal Law 

       One of the branches of contemporary international law is international criminal law. It consists of a set of international legal norms that form the basis for individual criminal liability (applicable to both states and individuals—whether individual citizens or stateless persons). International criminal liability is enforced before international courts or tribunals. Therefore, international criminal law is a collection of substantive and procedural norms which apply to individuals committing crimes against international law, contrary to criminals violating the domestic laws of a particular state.

       However, unlike domestic law, public international law, including international criminal law, does not operate on the same principles as national criminal law. The principle of state sovereignty lies at the foundation of the international order. Sovereign states constitute the primary entities of international law; they are the main actors of international relations, initiating and shaping international law, and ultimately deciding how many obligations they will impose on themselves. As a result, they have not yet provided for compulsory justice in international law. International courts or tribunals exercise jurisdiction only over states that have signed the statute (or another constitutive treaty establishing the body), or over the states in whose territory the crimes have been committed, provided that these states express a political willingness to establish such an ad hoc tribunal. In both cases, there are risks of avoiding international criminal liability.

       In the first scenario, concerning the states that are parties to the statute of an international court, again, according to the principle of sovereignty, any party may voluntarily join or leave the tribunal without giving reasons. The International Criminal Court (ICC) operates independently of the United Nations (UN) structure and currently has 123 member states, meaning 123 parties to the Rome Statute. Initially, however, as many as 137 states signed the Statute, which is the founding treaty of the Court. Both the Russian Federation and Ukraine are among the states that are not parties to the ICC. Ukraine has submitted two declarations of submission to the jurisdiction of the Court, allowing the current preliminary investigation to proceed. Notably, regarding the subject of international criminal law, Russia withdrew from membership after the Court's unfavorable report in 2016. This document ordered an end to the illegal aggression and occupation of the Crimean Peninsula in 2014 and the immediate withdrawal of Russian troops from Crimea. The Russian side quickly turned the legal situation into what it claimed was a political attack on its internal interests, arguing that the ICC had issued only four judgments during its operation, with Russian participation costing the Federation a billion dollars. Furthermore, Russia contended that the population of Crimea had democratically voted to return to their motherland, and therefore, Russia expected the referendum results to be recognized.

      Why? Besides one of the major flaws of international law, i.e. the lack of international enforcement mechanisms, Russia, which is already outside the ICC system as a non-party state to the Statute, de jure  could not be subjected to the Court’s jurisdiction. Interestingly, Ukraine signed the Statute but never ratified it, which can be interpreted as the Kyiv authorities' reluctance to formalize ICC membership due to fears of potential repercussions from Russia. After all, it was in Russia's interest to keep Ukraine outside the international criminal system.

        As for the second scenario, where there is a lack of political will among states to establish an ad hoc war tribunal, the best example is the criminal case against former Kenyan President Uhuru Kenyatta. This case also serves as a glaring illustration of the (failed) struggle for international justice versus economic benefits. Uhuru Kenyatta was accused of crimes against humanity, including murder, rape, persecution, and deportation. His decisions led to the deaths of over a thousand people, although these are only officially recorded figures, while unofficial sources were not addressed. However, due to Kenya's political interests, witnesses withdrew their testimonies. The official reason for the termination of the investigation in 2015 before the Court was the "lack of evidence and alleged witness tampering".

         It is an infamous fact that, to date, not a single political leader of a country, known as a head of state, has been held criminally responsible in any trial before an international court or tribunal for war crimes. Some international lawyers disagree with this statement, pointing to the famous 2012 judgment of the Residual Special Court for Sierra Leone. This court convicted former Liberian President Charles Taylor of war crimes and crimes against humanity. However, it should be noted that the substantive jurisdiction of this court primarily concerned crimes codified by the internal law of Sierra Leone, whereas the operation of this internationalized court was established in agreement with the UN Secretary-General, based on domestic law and national judges, which is completely different from the establishment of international criminal tribunals. Therefore, some lawyers, including the author, consider the judgments of this court to be  internal ones made in cooperation with international bodies, rather than sensu stricte international judgments. This constitutes a separate category of courts, known as mixed, hybrid, or internationalized courts. In addition to the Sierra Leone dictator, hybrid courts have ruled on war crimes in East Timor, Kosovo, and Cambodia.

Read more