Crimes Against Humanity in International Criminal Law - Case Study Example

Kupreskic et al., Trial Chamber, Judgment, 14 January 2000, Case no. IT-95-16-T Introduction The power of the international organizations and authorities to intervene in the political and military decisions of states has been enforced under the influence of the humanitarian law. On the other hand, when the national law and practices in regard to a specific issue are not clear, the potential prospect of international law to be alternatively applied cannot be ignored. In this case, the international Courts will be asked to decide on the level at which the international law can be used instead of national law and whether the rules of the former can be considered as superior towards those of the latter – also under which terms the above relationship can be justified. The International Criminal Tribunal for the former Yugoslavia was created in the context of the United Nations aiming to criticize the military activities developed in the greater area of Balkans during the 1990s. A particular decision of this Court is examined in this paper: the case Kupreskic et al. (no. IT-95-16-T); the justification of the Court’s decision on the above case is presented and explored. The role of this decision on the development of customary law is also examined; the involvement of humanitarian law in the establishment of customary law is criticized. One of the most important contributions of the above case seems to be its role in the expansion of customary law: it is held that principles of humanitarian law can be applied even when such case is not clearly stated in the national law – the customary law is expected to be used in order to develop such schemes; the relevant initiatives can be justified by referring to the humanity or the public interest – an issue that is analytically explored through the case law developed in the specific field – in addition with the case under examination. 2. ICTY Trial Chamber and determination of rules of customary law in the field of international humanitarian law – the case of Kupreskic et al., IT-95-16-T In accordance with the Court’s decision – par. 531 – in the case under examination ‘a customary rule of the international law has emerged’; the existence of this rule is justified by referring to the ‘requirements of humanity and the dictates of public conscience’1; at this point, it would be necessary to identify the Chamber’s way of determining rules of customary law in the field of international humanitarian law. Of particular importance would be at this point the reference to the view of Kwakwa who mentioned that a reprisal action can be regarded as opposing the international customary law mostly because these initiatives are expected to have ‘injurious effects on a civilian population’;2 in other words, the involvement of humanitarian law in form of customary international law can be justified in this case by referring to the effects of reprisals on the population of civilians – effects in the above study have the meaning of injuries caused to civilians because of these activities. Other studies also support similar views; an indicative example is the study of Bonafe who noted that the prohibition of reprisals against civilians is established in the international customary law – under the influence of the principles of humanitarian law. In the study of Bonafe the value of the case under examination (Kupreskic et al.) as a key case in the specific field is highlighted; however, reference is also made to the case Prosecutor v. Martic (1996) decision of ICTY – a decision through which the absolute prohibition of reprisals was first established. In accordance with Bonafe (2009) the view of ICTY on the absolute prohibition of reprisal of civilians was developed gradually;3 initially, doubts existed in regard to the potential expansion of such practice4. Through the case under examination (Kupreskic et al.) the trend of the ICTY for changing its criteria for evaluating the opposition of an action to the international law was made clear; the methodology and the justification used by the ICTY in the particular case is of significant importance in order to identify and understand the reasons of such differentiation – compared to the ruling of the above Court in similar cases in the past. 2.1 Methods used by ICTY Trial Chamber in the case no. IT-95-16-T in order to find customary international law – critical analysis and concerns The ICTY Trial Chamber has used a specific methodology in order to identify the customary international law applied on the particular case: at the first level, reference is made to the First Additional Protocol of 1977; in the specific legislative text the reprisals against civilians are clearly condemned and prohibited5; reference is also made to the four 1949 Genera Conventions6 aiming to show the opposition of reprisals to the international law but also trying to justify the assumption that the customary international law applied on this case should be related with the principles of humanitarian law. The importance of Geneva Conventions regarding the prohibition against civilians is also highlighted in the study of Henckaerts et al.;7 in the above study, Geneva Conventions are characterized as key legislative texts in the specific field – humanitarian law; it is explained that the civilians protected by the Geneva Conventions should be protected from any potential reprisal against them. However, it is also noted that many states, including USA, even if they have ratified Conventions and other similar texts of the international law that prohibit reprisals against civilians, still they have stated their concerns in regard to these texts’ content – no full prohibition is recognized by these states in regard to the civilians’ reprisals8. Another example of this type is mentioned in the study of Bonafe (2009); in the above study reference is made to the ‘UK reservation to the 1977 Additional Protocol’.9 2.2 Arguments used in the Chamber’s decision The Chamber’s decision in regard to the involvement of the humanitarian law – even in the form of customary international law – is based on a series of arguments: a) it is noted that even if reprisals were permitted in the past as the most effective way for fighting the enemy, such practices cannot be justified in the context of modern international law;10 b) the reprisals against civilians can be characterized as an infringement of human rights; no military decision violating the human rights can be permitted – the credibility of such decision could be doubted as being opposite with one of the important parts of international law, the human rights,11 c) the reprisals against civilians are prohibited in the context of a series of Military legislative texts;12 this is a fact indicating the clear opposition of countries worldwide against any potential violation of human rights in the form of reprisals against civilians; d) It is also mentioned that many countries worldwide have ratified the First Protocol of 1977 – showing the trend developed in the context of the international community towards the prohibition of reprisals against civilians;13 e) the examination of the various aspects of the above case led to Court to the decision that opinio necessitatis14 can be used in order to justify the application of customary international law – being related with the humanitarian law. In any case, the Court’s decision on the opposition of reprisals against civilians to the international law seems to be based on the fact that the International Law Commission has already set its view in regard to the potential establishment of customary international law when a case referring to reprisals against civilians is under examination; reference is made to the article 50 (former 14) of the Draft Articles of State Responsibility where it is clearly noted that any national legislative text violating the human rights should be considered as non binding. 2.3 Implications of the decision on the development of customary law in the specific area The Kupreskic et al. decision of ICTY is part of the Court’s effort to change its practices in regard to the promotion of the international customary law; despite the fact that in the past the Court had justified under certain terms the reprisals against civilians – as analyzed above using the relevant case law – its ruling in the case Kupreskic et al indicated the change in the Court’s ruling on such conflicts; reprisals against civilians are now absolutely prohibited. The fact that certain states have stated their concerns in regard to the absolute prohibition of these practices – see the example of USA and Britain mentioned above – has not affected the Court’s determination to increase the power the customary international law; national rules related with the specific activity – reprisal against civilians – are no longer applicable – at least in the context of international law – as they are considered as opposite to the humanitarian law;15 such opposition cannot be justified; perhaps only if issue of national security is set such practices could be justified; still, their opposition with the humanitarian law would be a problem. In this context, the decision under examination could lead to the revision of national rules that permit the reprisal of civilians; since the prohibition of such practices by the ICTY is absolute countries worldwide – as members of the international community – cannot be differentiated; they have to align their rules with the relevant international customary law – which in this case follows the principles of the humanitarian law. 3. Conclusion In the context of international law, the activities of states may be controlled; their potential opposition with the principles and the rules of international law needs to be periodically examined ensuring that the human rights – in all their forms - are adequately protected. The first initiatives in order to prohibit the reprisals against civilians can be identified in the Four Geneva Conventions of 1949; a series of legislative texts, like the Protocol I to the Geneva Conventions who set stricter rules in regard to the prohibition of the specific activities (Bassiouni, 199916); the article 51(6) of the above Protocol has been also used as a legal basis for the development of the Court’s decision in the case under examination. In accordance with Schabas (2006)17 the ruling of the ICTY in the Kupreskic et al decision can be characterized as a transition from the Court’s past decisions on the specific issues; in the context of the new approaches used by the Court – as explained above – the prohibition of reprisals against civilians is characterized as absolute; no exceptions are permitted or justified. Through this point of view, the Kupreskic et al decision of ICTY redefined the criteria used for the evaluation of an action’s opposition to the international law; moreover, through the above decision the role of international customary law was enforced – even towards the national law of countries worldwide. References/ Bibliography C. Bassiouni. Crimes against humanity in international criminal law (1999) B. Bonafe. The relationship between state and individual responsibility for international crimes (2009) J. Henckaerts, Beck, L., Alvermann, C. Customary International Humanitarian Law: Rules (2005) E. Kwakwa. The international law of armed conflict: personal and material fields of application (1992) W. Schabas. The UN international criminal tribunals: the former Yugoslavia, Rwanda and Sierra Leone (2006) Case Law Prosecutor v Blaskic, ICTY, 2000 (March 3) Prosecutor v Kordic and Cerkez, ICTY, 2001 (February 14) Prosecutor v Galic, ICTY, 2003 (December 5) Prosecutor v Strugar, ICTY, 2005 (January 31) Prosecutor v Martic, ICTY, 2007 (June 12) Online Sources International Criminal Tribunal for the former Yugoslavia, 2010, available http://www.icty.org/sid/135 Read More