Governments have attacked and killed civilian protesters across the Middle East. These attacks have resulted in action by the International Criminal Court and international military forces against Libya but inaction against similar atrocities in other Middle Eastern states. This discrepancy in response by the I.C.C., international community, and the U.S., have drawn cries of hypocrisy. Are these criticisms against the I.C.C. in particular warranted? The answer is not as simple as it would seem.
First, there has to be an armed conflict. In situations where peaceful protests are met with undiscriminating government violence the Rome Statute is not automatically applicable. There seems to be a level of severity of widespread and systematic violence that needs to be met for one-sided violence perpetrated by an organized political unit to qualify as ‘armed conflict’ under the I.C.C. purview.
Then there is a distinction of applicability in the Rome Statute between crimes committed in an international armed conflict and armed conflicts not of an international character. Rome Statute applicability for crimes committed in international combat kicks in when ‘grave breaches of the Geneva Conventions of 12 August 1949’ and ‘Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law’ have occurred. This includes willful killing or targeting of unarmed civilians.
This threshold is considerably lower than for conflicts not of an international character because the Rome Statute adds the disclaimer that it ‘does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature’ in domestic situations. So somewhere there is a line drawn where government suppression of ‘situations of internal disturbances and tensions’ and peaceful protests become more than ‘riots, isolated and sporadic acts of violence or other acts of a similar nature’ and become war crimes and crimes against humanity.
It is unclear which Middle East situations meet the first qualification for ‘armed conflict’. Do Jordanian stone throwers count? What about A.Q.A.P. militants in Yemen that also support the overthrow of Saleh? As for the second element, how widespread and systematic do attacks against unarmed civilians have to be to meet the crimes against humanity threshold? Hundreds are dead from attacks in cities across Syria and Yemen. Saudi troops have aided the Al Khalifa regime in the killing of dozens of civilian protesters in Bahrain, does that lower the threshold for war crimes to the international armed conflict standard?
According to I.C.C. precedent, once a determination that the element of armed conflict has been made, the threshold for atrocity is relatively low. For example Bahar Idriss Abu Garda, former J.E.M. leader in Darfur was indicted on three counts of war crimes for attacks on African Union troops that killed only twelve peacekeepers.
For widespread and systematic atrocities to have taken place against unarmed civilians the sufficiently grave death toll seems to be somewhere around one thousand. This was the case in the post-election violence in Kenya; and more recently in the conflict in Libya.
The Bemba case seems to suggest that situations where external forces are brought in to assist in the execution of illegal violence in an internal conflict, that conflict retains its non-international character.
Based strictly on Rome Statute language, and I.C.C. precedent only Libya has met the qualification for an official investigation by the Office of The Prosecutor of the I.C.C. Still, situations in Yemen, and Syria are extremely close to qualifying for official scrutiny for war crimes. Syria and Yemen are increasingly approaching the ‘sufficiently grave’ death toll threshold if they are not there already. As protests continue unabated, unless these nations undergo regime change, it appears it will only be a matter of time until ‘sufficiently grave’ violations become the case. Saudi Arabia’s participation in the ‘domestic disturbances’ in Bahrain resulting in multiple violent deaths and allegations of systematic and widespread torture may be able lead to classifying this conflict as international in character, but only if an evolution occurs in the classification of character of armed conflicts by the I.C.C. Situations in other Middle Eastern nations do not seem to meet the requisite elements to qualify for I.C.C. involvement. Unfortunately, it is necessary to add to the previous statement the qualification, ‘yet’.