INTERNATIONAL HUMANITARIAN LAW:

CHALLENGES TO INVESTIGATING AND

PROSECUTING VIOLATIONS

Larry Maybee
Regional Legal Adviser
ICRC Delegation for East Asia
 VIOLATIONS OF IHL & THE
RESPONSIBILITY OF STATES
IHL Enforcement & Accountability: State
Obligations…

• IHL requires states to enact any legislation necessary

to prosecute and punish persons guilty of grave
breaches of the GC & AP I (GC 49/50/129/146; AP I 80)

• States are bound to search for and prosecute any

person suspected of committing a grave breach of the
convention or to hand over that person for judgement
to another state (GC 49/50/129/146; AP I 88).

• State law normally applies only within the territory of

the state, while IHL requires the state to seek out and
punish any person who has committed a grave
breach, irrespective of nationality or place where the
offence was committed (Universal Jurisdiction).
 IHL violations & terminology (war
crimes, grave breaches, serious
violations, etc.)…

• Grave breaches of the Geneva Conventions

(Articles 50/51/130/144)

• Without prejudice to the application of the Convention

and of this Protocol, grave breaches of these
instruments shall be regarded as war crimes.
AP I Art. 85(5)

• Serious violations of international humanitarian law are

war crimes. (ICRC Customary IHL Study, Rule 156)
Crimes covered by the ICC…

• ICC Statute Article 8 (War Crimes) – 4 x types:

Article 8(2)(a). "Grave breaches of the Geneva Conventions of 12
August 1949, namely, any of the following acts when committed
against persons or property protected…"

Article 8(2)(b). "Other serious violations of the laws and customs

applicable in international armed conflicts."

Article 8(2)(c). "In the case of an armed conflict not of an

international character, serious violations of article 3 common to the
four Geneva Conventions of 12 August 1949, namely, any of the
following acts committed against persons taking no active part in the
hostilities, including members of armed forces who have laid down
their arms and those placed hors de combat by sickness, wounds,
detention or any other cause:"

Article 8(2)(e). "Other serious violations of the laws and customs

applicable in armed conflicts not of an international character."
War Crimes not covered by the ICC…

• War Crimes listed in Art.8 of the ICC not exhaustive

• Art.8 does not include many of the provisions/rules

contained in AP I (IAC) & AP II (NIAC)

• Weapons provisions seriously lacking in ICC Statute:

 no limitations/prohibitions at all for non-international conflicts
 very limited for international armed conflicts (Art.8(2)(b)(xvii-xx)
 reference to annex containing weapons subject to a
comprehensive prohibition – but doesn't exist (Art.8(2)(b)(xx)
 nuclear weapons & other WMD not dealt with (except poisons)

• Other issues left out (i.e. direct participation in

hostilities, combatant status, reprisals, combatant
status, etc.)
THE ICC: JURISDICTION &
ADMISSIBILITY
When ICC can investigate & prosecute:

• Three jurisdictional requirements must be met before a

case may begin against an individual: (1) subject-
matter jurisdiction (what acts constitute crimes; (2)
territorial or personal jurisdiction (where the crimes
were committed or who committed them); and (3)
temporal jurisdiction (when crimes were committed).

• Only for crimes committed after the ICC Statute

entered into force (1 July 2002) – Art.11

• Only for crimes committed after a State becomes party

to the ICC Statute (unless a declaration is signed by
a State accepting the jurisdiction of the Court over the
specific crime in question) – Art. 11(2)
 When ICC gets jurisdiction over a crime
(what preconditions):

• the State on whose territory the crime was committed

is a party to the ICC Statute – Art.12(2)(a); or

• the State where the person accused of the crime is a

national is a party to the ICC Statute – Art.12(2)(b); or

• a State that is not a party to the ICC Statute signs a

declaration accepting the exercise of jurisdiction of the
ICC over a specific crime – Art. 12(3)
Cases are inadmissible in the ICC where…

• The case is being investigated or prosecuted by a

State with jurisdiction – unless the State is
unwilling or genuinely unable to act – Art.17

• A State has investigated & decided not to prosecute

• The person has already been tried for the matter in

question (and the case has been 'disposed of')

• ‘Unwilling or genuinely unable’ (Arts.17(2)&(3)):

 proceedings undertaken with the purpose of shielding the
person from criminal responsibility
 unjustified delay in bringing proceedings
 proceedings not conducted independently or impartially
 due to a total or substantial collapse of the judicial system
Responsibility of States in IHL…

 States must take measures to implement IHL obligations,

through legislation, sanctions and repression of breaches
(Slide #3 above, CIHL Rules 141-143, 157-161)

 Repression of breaches regime based on individual

accountability for war crimes (criminal responsibility)
(GC CA 49/50/129/146, AP I Arts. 85-89, CIHL Rules 151-153)

 States not criminally responsible for IHL violations, BUT

 States are responsible for violating IHL obligations, AND
(AP I Art. 91, CIHL Rules149-150…)

 States responsible for IHL violations attributable to them

 States liable to make full reparation for loss or injury caused
 States are further required to “respect and ensure respect”
for IHL (GC CA1, AP I Art.1, CIHL Rules 139-140)
THE ICRC’s ROLE IN ACCOUNTABILITY
& REPRESSION OF BREACHES
ICRC’s mandate (150 years of history)

"The ICRC is an impartial, neutral and independent

organization whose exclusively humanitarian mission
is to protect the lives and dignity of victims of armed
conflict and other situations of violence and to
provide them with assistance.“
ICRC as guardian & promoter of IHL

“…to work for the faithful application of IHL applicable

in armed conflicts and to take cognizance of any
complaints based on alleged breaches of that law.”
“…to work for the understanding and dissemination of
knowledge of IHL applicable in armed conflicts and to
prepare any development thereof.”

Statutes of the International Red Cross

and Red Crescent Movement, Art 5(c)&(g)
 Challenges to ICRC & other IHL
‘assessments’ (investigations):
• Lack of access to incident areas (both sides)
• Rejection of ICRC’s mandate (in this area)
• Rejection of mandates & TOR of investigations
• Rejection of individual members of investigative
teams/commissions
• Lack of clarity of rules
• Disagreement on rules
& legal framework
• Lack of knowledge
and/or good faith
• Privileges & immunities
Even wars (in urban areas)
have limits!
www.icrc.org
COMMAND RESPONSIBILITY
Command responsibility:

“Commanders who fail to prevent or punish

the illegal acts of their subordinates are
liable under the doctrine of command
responsibility”
Command responsibility:

A Commander is responsible if:

• He/she commits or orders the commission of

war crimes; or

• If he/she fails to take all possible steps to

prevent and/or punish war crimes.
The Yamashita Principle…
 Post - WW II:

• AP I (1977) - Art. 86 (failure to act). Superiors are

responsible “if they knew or had information which
should have enabled them conclude in the
circumstances at the time”, that their subordinates
were committing or were going to commit such a
breach of IHL. Superiors must take “all feasible
measures within their power to prevent and repress
the breach”

• AP I - Art. 87 (duty of commanders). If under their

command and/or control then a superior has a duty to
prevent, suppress and report breaches of GC & AP.
There is a further duty to educate subordinates on their
obligations under GC & AP.
Responsibility of commanders (bottom line):

• Superior commanders are personally responsible “if they

knew or had information which should have enabled them
conclude in the circumstances at the time”, that their
subordinates were committing or were going to commit a
breach of IHL.

• A superior commander has a duty to prevent, suppress and

report breaches of IHL.

• Superiors must take all feasible measures within their power

to prevent and repress breaches of IHL

• There is a further duty to educate subordinates on their

obligations under IHL.
AP I Arts 86 & 87
DEFENCE OF SUPERIOR ORDERS
Responsibility of subordinates :

• Subordinates are obliged to obey the lawful commands

of superiors

• Subordinates are not justified in obeying manifestly

unlawful commands

 A manifestly unlawful command is one that would

appear to a person of ordinary sense and
understanding to be clearly illegal, i.e. “offends the
conscience of any reasonable, right-thinking
person... obviously and flagrantly wrong”

• A subordinate commits a crime if he/she complies with

a manifestly unlawful command from a superior officer