A video surfaced last week documenting a massacre of unarmed men in the Tigray region of Ethiopia, near the ancient city of Axum. The gruesome footage confirmed the widespread reports of mass killings, sexual violence and other war crimes taking place in that region. Through the meticulous work of human rights groups and journalists, enough details have emerged to warrant a careful investigation to hold those responsible to account.
On March 7, scores of helpless migrants, mostly Ethiopians, burned to death in Yemen after Houthi militiamen fired missiles into a tightly packed immigration detention center in Sanaa. Hundreds more suffered serious injuries when the militiamen blocked their escape from the raging inferno. Here too there is enough evidence to warrant an investigation with the aim of bringing those responsible to justice. However, other than reporting by human rights groups, very little has been done in that direction, despite the presence of a considerable number of staff from the UN and other international organizations.
In Myanmar, dozens of unarmed protesters were killed on March 27, following weeks of protests and deaths blamed on security forces. Other than the US describing the killings as the “murder of civilians” and UN Secretary-General Antonio Guterres saying he was “deeply shocked,” very little has been done.
It would be a mistake to think of these events as isolated incidents; they appear to be parts of a global trend: Lack of accountability has emboldened wrongdoers everywhere. Take the case of Myanmar, for example. Years of repression of its Muslim minorities resulted in wholesale killings, wanton destruction of their ancestral towns, and the uprooting of whole communities. The perpetrators went unpunished and now they appear to be turning on new victims.
Hundreds of unarmed protesters were gunned down in Iran in 2019, but little has been done to account for those killings. In their rush to resume nuclear talks with Iran, the P5+1 are overlooking this issue, together with numerous other large-scale human rights breaches in Iran.
When the International Criminal Court (ICC) was set up in 2002, many thought that the new judicial structure could be mobilized to address mass breaches of human rights, especially those crimes listed in Articles 6 and 7 of the Rome Statute, the ICC’s founding document. However, the court has been hamstrung by limited resources, restricted jurisdiction, and a lack of cooperation from some countries, if not outright hostility.
Article 6 of the Rome Statute defines the crime of genocide as “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.” The acts include killing members of such a group, causing them serious bodily or mental harm, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction, imposing measures intended to prevent births within the group, and forcibly transferring children of the group to another group. The definition of these crimes in the statute is similar to their definition in the old Convention on the Prevention and Punishment of the Crime of Genocide of 1948. The innovation lies in the establishment of a permanent court to deal with them and revitalized apprehension and prosecution mechanisms.
A convincing case has been made that at least some of these acts were committed against the Muslims of Myanmar, but no credible investigation into those acts has taken place and nobody has been held accountable.
While the high threshold required for conviction by Article 6 has made it difficult for the ICC to successfully prosecute cases of genocide, Articles 7 and 8 do not require that the crimes are directed against an ethnic or religious group.
Article 7 deals with crimes against humanity, “committed as part of a widespread or systematic attack directed against any civilian population.” It lists murder, extermination, enslavement, torture, deportation or forcible transfer of population, and the imprisonment or other severe deprivation of physical liberty. It also includes sexual violence, rape, sexual slavery, enforced prostitution, forced pregnancy and enforced sterilization, along with persecution, enforced disappearance, apartheid and “other inhumane acts.”
Article 8 defines war crimes, whether the armed conflict is between states or involves non-state actors. It covers a wide range of crimes, including willful killing, torture, inhumane treatment, “willfully causing great suffering,” the destruction and appropriation of property, compelling service in hostile forces, denying a fair trial, unlawful deportation and transfer, unlawful confinement, and taking hostages. The ICC and the Geneva Conventions have also identified many other crimes that are serious breaches of the rules of armed conflict and can be legally prosecuted by the court.
Unfortunately, many of these offenses are committed on a regular basis both during armed conflicts and in times of peace. However, the ICC has done little to stem the proliferation of crimes against humanity or war crimes since it was founded in 2002. Since then, it has started only 12 official investigations and nine preliminary examinations. Just 45 individuals have been indicted and a mere handful convicted and sentenced.
While detractors blame the ICC for these limited results, it is important to remember that its limited resources and the lack of cooperation from some states have dulled its impact as a deterrent against war crimes, crimes against humanity and other breaches of international law.
The ICC has done little to stem the proliferation of crimes against humanity or war crimes since it was founded in 2002.
Dr. Abdel Aziz Aluwaisheg
It is also important to remember that the ICC was not granted “universal” territorial jurisdiction; it may only investigate and prosecute crimes either committed within the borders of its 123 member states or by the nationals of its signatories, some of which are now threatening to withdraw from the treaty. In addition, by design, the ICC may exercise its jurisdiction only when national courts are unwilling or unable to prosecute suspects.
The onus remains on the international community as a whole and on individual nations, whether ICC members or not, to either investigate and prosecute the perpetrators of these large-scale breaches of law through their own legal system or hand them over to the ICC. In addition, the UN Security Council has the authority to refer any suspected breach to the ICC.