The following is an interview with Professor M. Cherif Bassiouni. Professor Bassiouni has held many positions with the United Nations including Chairman of the Drafting Committee for the Establishment of an International Criminal Court, and Chairman of the Security Council’s Commission to Investigate Violations of International Humanitarian Law in the Former Yugoslavia. He is currently a Distinguished Research Professor of Law and President of the International Human Rights Law Institute at DePaul University College of Law. The interview was conducted at his office in Chicago.
In an article in Opinio Juris recently Mark Osiel discussed the context requirements of I.C.C. crimes. War Crimes have to be committed within the nexus of an armed conflict; Crimes Against Humanity have to be widespread and systematic and reflecting of a State or organizational policy; Aggression must me linked to State policy; for Genocide as Osiel put it, “the contextual element would be the defendant’s knowledge of, and/or contribution to similar acts of genocide in the relevant political environment.” – What is the purpose of the context requirement?
What is meant by the text in the Rome Statute is the delineation of substantive and jurisdictional criteria for the crimes committed. For instance a traffic violation on a highway may fall under a local jurisdiction but at the same time may also fall under State level jurisdiction. A crime may fit the requirements of a lesser State crime, but once it fulfills the requirements of a Rome Statute law it also falls under international jurisdiction if the relevant States are signatories and are unable or unwilling to hold the perpetrators accountable. Also, there is no War Crime if it is only a lone killer releasing poison gas on the subway with only the motivation to kill; it has to be a part of a political conflict, otherwise there are generally other appropriate state level mechanisms to prosecute the crime. This is not to say that the philosophical discussion engaged by Mr. Osiel is of no value – it is useful to examine our foundational motivations in the prosecution of war crimes. However, it has no real bearing to the purpose the contextual requirements serve in the Rome Statute.
Recently ICC Prosecutor Luis Moreno Ocampo announced preliminary investigations into situations into countries where the context is perhaps pushing the boundary of what the Court has previously considered. Let me ask you your opinion on a couple of these situations.
Afghanistan and Colombia – You have a unique perspective here as former U.N. Human Rights Commission’s independent expert on human rights in Afghanistan – Are civilian Afghan casualties caused by the U.S. on a grave enough scale to be considered by the I.C.C.? And are FARC activities systematic and widespread enough to qualify as Crimes Against Humanity?
Well, there are two things I would point out. The first is that I don’t consider the scale of the offense to be an issue. If an American commander called for the bombing of a single Afghan wedding party we need to find out if that was done based on bad intelligence, which would be terrible but not a War Crime, or if it was a result of purposive action which would make it a War Crime. Then again even if it is based on bad intelligence but it happens over and over again, then it becomes systematic and would then possibly fall under the definition of War Crimes.
The second is that it is also important to acknowledge that there is no legal justification to expand the jurisdiction of the ICC for Crimes Against Humanity to cases that don’t fit the definitions in the Rome Statute. As such, many investigations currently considered by the ICC Prosecution would not fall under the jurisdiction set out by the Rome Statute. So, the ICC has no technical jurisdiction over the F.A.R.C.’s crimes in Colombia. That is not to say that they haven’t committed crimes that are worthy of prosecution before the ICC from a gravity standpoint. It is just to say that the current language of the law does not allow for it. Now, we can twist the language and pretend that it does, but that would be disingenuous. Some people point to the phrase concerning Crimes Against Humanity: any “attack directed against any civilian population means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack” to mean that organizational policy could subsume an organization other than a State. As the person that suggested that text for the treaty I can say that I had meant it only in the context of sub-national organizations that were under government control but had a degree of autonomy. The text of the Rome Statute simply does not support the notion that the scope of War Crimes can be expanded. However, that is a gap in International Law that should be addressed.
How can it be addressed?
The Rome Statute could be amended, which is almost impossible (requiring 7/8 of signatories’ approval), or prosecutors could skirt the actual definition of ICC crimes as has been increasingly the case. I will not denigrate this practice; many terrible offenses that probably should be considered War Crimes are committed outside of the purview of the ICC and if the only recourse is to bend the definition of War Crimes then we should look at the situation very carefully before we admit or dismiss such a case before the ICC.
You recently discussed a dichotomy in legitimacy outcomes for State and non-State actors when they violate International Humanitarian Law in internal conflicts. The dichotomy is that as a State actor that violates IHL becomes less legitimate in the eyes of the public, non-State IHL violators’ – so-called terrorists – legitimacy is (perceived to have) increased by engaging in such acts. This dichotomy is an important reason why weaker, non-State actors engage in ‘asymmetrical’ warfare. To force them to comply with IHL would condemn them to defeat at the hands of more powerful State actors. At some point these IHL violations become War Crimes and Crimes Against Humanity. How do we reconcile the humanitarian values behind prosecuting IHL violations, War Crimes, and Crimes Against Humanity; and the effective condemnation of some (this is not to say the majority or even many) marginalized groups that have legitimate political grievances and that are oppressed and unable to redress their grievances through the political process and cannot attain a successful conventional military outcome?
In the current environment we can’t. In the future when we consider issues like this it will be necessary to consider incentives for non-State actors to comply with humanitarian regulations. If we don’t then we are indeed further marginalizing groups that don’t have the resources to fight their own marginalization. Even though Crimes Against Humanity are set up to prevent and prosecute perpetrators of severe injustice, they also functionally serve the interests of the strong over the weak. It will take a concerted effort to work toward a more equitable system of law.
