6.6: Conclusion - The Future of the Responsibility Regimes

A first conclusion regards the responsibility of states parties to ensure respect for the obligations in international treaties for the protection of war victims, and secondly the prospects for the international criminal justice system for the prosecution of individual transgressors.

As was noted earlier, state parties are obliged to respect and to ensure respect for the principles enunciated in the Geneva Conventions and Protocols. According to the ICRC and a number of states this treaty obligation implies that every contracting party is entitled to request that another contracting party involved in an armed conflict must live up to what the Conventions and Protocols stipulate. Cassese has correctly pointed out that this right or entitlement of a state party:

Accrues to any contracting State from the mere fact of being a party to the Conventions or the Protocol: it is not necessary for it to prove that it has a specific and direct interest in the observance of the rules violated. In other words, the obligations laid down in the Conventions and the Protocol are erga omnes contractantes and consequently each of the latter is endowed with the corresponding right to demand their fulfilment, irrespective of any damage it may have suffered from the wrongful action. … This feature of the obligations at hand constitutes the necessary precondition for the possible characterization of gross breaches of the Conventions and the Protocol as international crimes of States. (Cassese, 2008, p. 409)

A crucial question that arises from this understanding of states parties’ treaty obligations relates to the kind of action considered by states to be authorised by the Conventions and Protocol. A survey on this conducted by the ICRC in 1972 has shown that the majority of states took the view that states parties are entitled to exercise supervision over compliance collectively as well as individually and that measures to ensure compliance could cover both preventive action and reaction to breaches. However, despite this understanding amongst states of their obligations in terms of the Conventions and Protocol, state practice with regard to concrete actions in response to violations confirmed a very cautious approach by states in reacting to serious breaches of IHL principles and that the tendency is to limit reaction to verbal condemnation of the breaches and to appeals to the belligerent parties to comply with their obligations (Cassese, 2008, p. 412). On the reaction by individual states it has been noted that:

If one contrasts the daily perpetration of gross violations of human rights during armed conflicts with the legal reaction of other States, the impression is exceedingly dispiriting. Only in very unique and exceptional circumstances do third States publicly react to them. They normally prefer to keep aloof or, at most, they approach the delinquent State via diplomatic channels when they wish to request that it discontinue the wrongdoing. (Cassese, 2008, p. 413)

From the perspective of state responsibility this remains one of the flaws in the quest for more effective enforcement of IHL norms and it is unlikely that any fundamental change will occur any time soon. It is at the same time also a problem of political leadership which in many instances is strikingly inadequate in the face of gross violations of IHL and other norms which occur so regularly in times of armed conflict.

The international criminal justice system has made considerable progress in ending the impunity of individual perpetrators for war crimes, crimes against humanity and genocide. Apart from the establishment of the two ad hoc tribunals, the ICTY (1993), the ICTR (1994), and the permanent International Criminal Court (1998), the following tribunals are equally noteworthy examples of this progress: the East Timorese Tribunal (2002), the Special Court for Sierra Leone (2002), the Cambodia Tribunal (2003) and the Lebanon Tribunal (2009).

One should not be oblivious to the obstacles that may stand in the way of effectively enforcing humanitarian law principles through an international criminal justice system, especially when considering the future success of the ICC and its potential international role in bringing about an efficient and trustworthy international legal regime for the punishment of individual perpetrators. One obvious obstacle is international cooperation. The ICC cannot function without the assistance of states parties in matters such as the execution of warrants of arrests, the apprehension and transfer of suspects, the gathering and securing of evidence, the making available of witnesses, and financial assistance for the day to day running of the system. After all, states parties have undertaken in Article 89 of the Rome Statute to cooperate fully with the Court in its investigation and prosecution of crimes falling within the jurisdiction of the Court. However, some recent developments have shown how easily this cooperation can be undermined. A case in point is the reaction by the African Union to arrest warrants authorised by the ICC for the arrest of sitting heads of state, namely Al-Bashir in Sudan and the late Muammar Gaddafi in Libya. In both instances the African Union refused to cooperate with the ICC, citing differences of opinion on the issue of immunity against legal process of sitting heads of state and interference by the Court in peace negotiations the African Union were involved in in both instances. Another example is South Africa’s deliberate failure to arrest Al-Bashir in 2015 while attending an African Union summit in the country and to surrender him to the ICC. This failure occurred in clear violation of South Africa’s Rome Statute obligations and the country’s own legislation (see the ruling of South Africa’s Supreme Court of Appeal in the case of Minister of Justice and Constitutional Development and Others v Southern African Litigation Centre 2016 (3) SA 317(SCA).

This is not the place to go into the merits of these claims, but they illustrate the fragile position the ICC finds itself in and how important it is for the international community to address such issues and to find consensus on them, lest the whole effort of building up an international criminal justice system over half a century runs aground on the harsh realities of international politics.

A second obstacle of note relates to the complementary nature of the ICC’s jurisdiction. The Court’s jurisdiction is based on the notion that the primary responsibility for the prosecution of individual perpetrators lies with national courts and that the ICC will only assume jurisdiction if the state concerned is unwilling or unable to proceed with an investigation and prosecution (see Articles 1 and 17 of the Rome Statute). But this approach places the ball squarely in the court of national states to, inter alia, adopt the necessary national legislative and other measures that will empower their national legal systems to conduct the necessary criminal proceedings against persons accused of the crimes listed in the Rome Statute. Although the Rome Statute boasts hundred and twenty two ratifications, there is concern over the relatively low number of states that have adopted national measures for the effective implementation of the Rome Statute. As long as this situation does not improve significantly so long will there be “safe haven” states where fugitives can avoid criminal accountability. If it is accepted that an essential function of criminal prosecutions is the restoration of confidence in the rule of law, then that objective must be vigorously pursued at the national level as well.