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Challenges to the Rule of Law in Times of Crisis Series: Prosecuting war crimes – Some thoughts for the new Prosecutor of the ICC

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The Permanent Premises of the International Criminal Court. Photo Credit: United Nations, licensed under Creative Commons

This article is part of our series on Challenges to the Rule of Law in Times of Crisis. Read the series introduction at this link.

From 16 June this year, the International Criminal Court (ICC) will have a new Prosecutor, Karim Khan QC. The change provides a good opportunity to ask some questions about the ICC’s approach to prosecuting war crimes, as he takes over from Fatou Bensouda, at a time when two recent decisions of the ICC have been receiving much criticism. On 9 December 2020, the Office of the Prosecutor (OTP) announced that it would not be conducting a formal investigation into war crimes committed by British forces during the Iraq conflict (2003-09). The Prosecutor said that, although she had established that there was a reasonable basis for concluding that war crimes had been committed, she had been unable to conclude that the UK had been unwilling genuinely to investigate and prosecute those crimes. In the second decision, the Pre-Trial Chamber (PTC) approved the OTP’s request to open a formal investigation into war crimes committed in the Palestinian Occupied Territory controlled by Israel.

Much of the criticism in the international legal press has involved pouring over the 1998 Rome Statute, that established the ICC and governs its proceedings. I should like to take a step-back from that, although it is impossible to avoid it completely, and ask what we should expect of the ICC in its attempts to investigate and prosecute war crimes. I shall begin by explaining in broad terms how the ICC was set-up to prosecute war crimes, for those who are not familiar with it. I will then look at some of the main issues that are, or will be, significant for the decisions involving the UK and Israel.  First, what level of war crimes the ICC was established to investigate and prosecute and, second, how national and international responsibility for prosecuting war crimes was apportioned through the concept of ‘complementarity’.

The purpose of the ICC is set out in the Preamble to the Rome Statute as being to ensure ‘that the most serious crimes of concern to the international community as a whole must not go unpunished [and]…to put an end to impunity for the perpetrators of those crimes’. As well as war crimes, these include genocide, crimes against humanity, and aggression. At the same time, the Preamble recognized that it was ‘the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes’ and that ‘the International Criminal Court…shall be complementary to national criminal jurisdiction’. The Statute provided a compromise over the division between national and international responsibility through the concept of complementarity. It had been the result of protracted negotiation between those who thought that crimes should only be prosecuted with the consent of the State having jurisdiction over them and those who thought that the Prosecutor should have independent discretion to prosecute war crimes. The compromise left the Prosecutor having to defer to a State’s investigation and prosecution unless it was ‘unwilling or unable genuinely’ to prosecute crimes committed by their citizens or on their territory. However, it was the Prosecutor who would decide after her own inquiry – a decision which is, however, revisable by the Pre-Trial Chamber. The first stage of an OTP inquiry is known as a preliminary examination and it may be initiated by the Prosecutor, often after receiving information from NGOs and victim-support groups. In the Iraq/UK case, the OTP opened a preliminary examination in 2004 after receiving information of alleged war crimes but quickly terminated it after finding that there was no ‘reasonable basis’ for concluding that war crimes had been committed – having a ‘reasonable basis’ is the required standard for it to proceed. However, after receiving further information in 2014, the OPT reopened the inquiry but in 2020 concluded that, although there was a reasonable basis to conclude that certain war crimes had been committed and there had been few prosecutions and only one conviction, the UK was not unwilling genuinely to investigate and prosecute those responsible. If we put this case together with the opening of the Palestinian investigation, they raise a fundamental question over what we expect of the ICC in these cases, which it would be worth addressing before the Prosecutor spends years on assessing whether Israel is unwilling genuinely to prosecute war crimes in the Palestinian Occupied Territory.

The first issue is what level of war crimes the ICC should prosecute. There is little history of the prosecution of war crimes but it is clear enough that there have been few domestic prosecutions within the UK and Western States generally and that the main forums for prosecution have been the international tribunals set up after the Second World War and then after the atrocities committed in the former Yugoslavia and Rwanda, which included very serious war crimes. There was a wide divergence of views among the delegates at the Rome conference as to whether the Prosecutor should have complete discretion to investigate all allegations of war crimes or only those that could be said to be particularly serious.  The debate resulted in the introductory words to Article 8 of the Rome Statute which lists the types of war crimes, the ‘chapeau’ as it is called, stating that ‘[t]he Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy of a large scale commission of such crimes’. The wording ‘in particular’ was supposed to represent a compromise that, at least to some, meant that the Prosecutor’s discretion was limited to large scale situations but in practice the Prosecutor has virtually ignored the restriction. Instead, it is common to refer to ‘serious’ cases but serious is even more ambiguous as it may refer to the quantity or the quality of the crimes. This may then lead to an invidious process where crimes are ranked in terms of ‘seriousness’.

The second issue is how the principle of complementarity should work in practice. To some extent this problem is connected to the first as, if the bar is set high at large scale crimes, then those situations falling below that bar will be matters only for the States concerned. However, there is also a more general problem which results from the implementation of the principle in the Statute. The Prosecutor may begin a preliminary examination to establish whether there is reasonable basis to proceed with an investigation (Art. 15(3)). In the Iraq/UK inquiry the Prosecutor interpreted this as there being a reasonable basis to believe that war crimes had been committed. However, the test of that is considerably different from the test required to proceed with a prosecution which is usually stated as being that there is a reasonable or a realistic prospect of conviction. At trial, the test then becomes that the evidence to convict is true ‘beyond any reasonable doubt’. The Prosecutor decided that these differences required her to determine whether there were decisions not to prosecute in the cases she had identified that showed that the UK was unwilling genuinely to do so, and she concluded that they did not. The allegations which were at the heart of Iraq/UK issue were, therefore, being tested from two different standards, the evidence that a crime has been committed and the evidence that would be necessary to have a reasonable prospect of a particular conviction. The difference in standards is not only a practical matter of the use of limited court resources and funding but also one of the rights of the accused not to be detained for trial unless there is reasonable suspicion that he or she has committed an offence.

It seems, therefore, that the uncertain compromises made in the Rome Statute remain unresolved and problematic in practice.  The appointment of a new Prosecutor provides an opportunity to address these issues. He might begin by attempting to resolve the uncertainties through a policy statement that addresses the disparity in evidential standards required between preliminary examination and prosecution. This could, for example, be achieved through the exercise of Prosecutorial discretion to decline to pursue investigations that have no reasonable prospect of securing convictions as it is not in the interests of justice to do so. At a more technical level, he could require legal organizations submitting evidence to include a legal opinion that it meets the evidential standard of proof. He might also seek an interpretation from the Court of the chapeau to Article 8 and whether the words ‘in particular’ are words of limitation to large-scale cases.

Sri Lankan War Crimes: Will victims ever receive justice?

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by Prachi Aryal

A tank rusting by a tree in the area around Elephant Pass. The area is strategically significant – it has a military base which controls access to the Jaffna peninsula – and has therefore been the site of several battles between Tamil rebels and the Sri Lankan Army in the Sri Lankan civil war. The area is currently under the control of the LTTE, which captured it from the Sri Lankan Army following a fierce battle in April 2000. Photo by Thomas Berg is licensed with CC BY-SA 2.0

The United Nations Human Rights Council recently passed a resolution allowing the collection, consolidation, and preservation of information and evidence surrounding the gross violations of human rights that occurred in Sri Lanka during the Civil War. Sri Lanka’s Civil War was a protracted conflict that took place between 1983 and 2009 resulting in over 100,000 deaths and 60,000 enforced disappearances.

The Origin of Ethnic Violence

Having gained independence from British rule in 1948, Sri Lanka has since been in a constant struggle for peace, with its Sinhalese-Buddhist majority in near-perpetual tension with its minority populations, who have been systematically excluded through discriminatory practices. The government, in a series of attempts to disenfranchise minority populations, made Sinhala the official language and Buddhism the nation’s primary religion. The actions taken by the government reduced the scale of civic participation for minority groups that spoke other languages. The Tamil migrant plantation workers and Muslim minorities had reduced access to education and government jobs, relegating their position in society. The Sinhalese government, who were wary of British favouritism towards Tamils during colonial times, enacted these discriminatory procedures, ultimately sowing the seed for prolonged ethnic strife.

The growing feud, divided along ethnic lines, concurrently led to the formation of the Liberation Tigers of Tamil Eelam (LTTE) under the leadership of Velupillai Prabhakaran. The organization, formed in 1976, began campaigning for a Tamil homeland in the northern and eastern parts of Sri Lanka. Started initially to campaign for an independent Tamil homeland, the LTTE morphed into an armed group as members became increasingly convinced it was the only way to affect change. In 1983, the LTTE ambushed an army convoy thereby triggering to a fully-fledged armed conflict between the group and the government.

The LTTE employed tactics of suicide bombing and guerrilla warfare to coerce the government into negotiations. The conflict waxed and waned through fragile peace processes brokered by third-party mediators and finally came to an end in 2009 when the government employed a ferocious military offensive against the group.

The conflict witnessed a period of gross human rights violations from both the LTTE and the Sinhalese majority government. Lasting almost 30 years, it resulted in over 100,000 deaths of which almost 40,000 were civilians. The war also led to over 60,000 disappearances and internal displacement.

Aftermath of the conflict: scars of the past

Following the end of the conflict in 2009, the Sri Lankan government has faced increased scrutiny from the international community. Some attempts have been made to promote reconciliation in the country but without much effect. Tamil families are still searching for thousands of people who disappeared during the war.

The government has attempted to promote national cohesion and integration through the introduction of bilingual policies and civic education. The bilingual policy essentially establishes Tamil as a national language alongside Sinhala, with the aim of fostering communication and integration between ethnic groups. Similarly, through the introduction of civic education, the school curriculum is instrumentalised to promote cohesion amongst different ethnic groups. However, the policies seem to have had little effect on inter-communal relations and are concentrated only around the urban areas, rather than in rural spaces where the conflict was mostly conducted.

Similarly, the reparation program, limited only to education, seems to have done little to heal the scars of families who continue to search for their missing loved ones. A report by Amnesty International states that Sri Lanka has one of the world’s highest number of disappearances, with a backlog of investigations on over 60,000 enforced disappearances.

In 2015, The Sri Lankan government committed to establishing four mechanisms of transitional justice: a Commission for Truth, Justice, Reconciliation, and Non-Recurrence, the Office on Missing Persons, the Office for Reparations, and a Judicial Mechanism with a special counsel by co-sponsoring Resolution 30/1 at the UNHCR. However, despite multiple efforts, the commission is yet to achieve any substantive result. Furthermore, with the initiatives led by the same nationalist politicians and generals who were in office at the end of the war, the commission finds itself in a place with reduced freedom of operation.

Sri Lanka Today

The Human Rights Watch World Report 2021 has highlighted that the human rights situation in Sri Lanka has deteriorated under President Gotabaya Rajapaksa’s administration. Rajapaksa was the defence secretary during the civil war period, and with his election reconciliation looks like a far-flung goal. The government revoked its commitment to the UNHCR and is continuing to appoint individuals implicated in war crimes into the administration.

There is a rise in Sinhalese Buddhist nationalism fuelling sectarian divides and the country is witnessing new waves of violence. The systematic prejudices that resulted in the conflict remain unaddressed and a new fear of sectarian policies continues to trouble minorities. Various reports have highlighted the shrinking civil society space and the increased surveillance and intimidation of human rights activists, victims of past abuses, lawyers, and journalists. Furthermore, the government has taken several decisions, for instance, banning the Burqa and Niqab alongside targeted closures of Madrasas (Islamic educational institutions), stoking the fear of another ethnoreligious rift.

Hopes for accountability

The UN Resolution passed on the 23rd of March, offers some hope in the reconciliation process for victims. The resolution grants the UN human rights office (OHCHR) permission to gather evidence for future prosecutions and make recommendations to the international community. It thereby significantly ramps up international scrutiny and gives hope to the victims waiting for justice. The resolution, if upheld, may herald the beginning of an end to the culture of impunity in Sri Lanka.

The resolution comes at a time when the Sri Lankan government is, yet again, being criticised for marginalising various minority communities and targeting civil society actors. It is hoped that the report will pave the way for a process of accountability and reconciliation amongst the people in Sri Lanka.

Prachi Aryal is an MA student in the Department of War Studies at King’s College London. Her research interest is inclined towards Gender, Human Rights, and Cross border conflicts in transitioning nations and how visuals from conflict zones play a role in communicating the realities of conflict to the broader world.

She completed her BA in Journalism from the University of Delhi, India.

Interview – Iain Morley QC on prosecuting war crimes

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By Dora Robinson:

Iain Morley QC speaking to the War Studies Society at King's College London in early December.
Iain Morley QC speaking to the War Studies Society at King’s College London in early December.

On 5 December the Prosecutor of the International Criminal Court (ICC) withdrew the charges against Kenya’s President Uhuru Kenyatta, who had been charged with crimes against humanity in the wake of the disputed 2007 Kenyan elections, when over 1000 people were killed. This has renewed scrutiny into the challenges of prosecuting international crimes. Iain Morley QC, an international criminal law expert, is well positioned to discuss some of these challenges. He has both defended and prosecuted on the international circuit, working at the International Criminal Tribunal for Rwanda (ICTR), the Special Tribunal for Lebanon (STL) and the International Tribunal for the former Yugoslavia (ICTY). He is also the current chair of the Foreign Office pro bono panel.

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Why did you decide to start practising and then continue practising international criminal law?

I had long been interested in international criminal law. I first researched war crimes while a Pegasus Scholar to the Bar of New Zealand in 1993. I was present for the opening of the first trial at the ICTY of Duško Tadić in 1996 [a former local leader of the Serb Democratic Party who was convicted of persecutions, inhuman acts and cruel treatment] and through regular attendance at conferences and in The Hague developed many contacts. I was asked to help Steven Kay QC in October 2004, who was then defending in the Milošević trial. Once inside international criminal law, I found other opportunities, which led to my prosecuting four genocide trials at the ICTR, and to writing the Hariri indictment at the STL. I returned to domestic practice in January 2013.

What are the main differences between how you approach defence and prosecution in international criminal law?

There should be no differences in the approach between domestic and international trials – the prosecutor should be an ‘impartial minister of justice’ and the defence should always apply their instructions, and test the evidence fearlessly. However, in international criminal law there are lawyers from many different jurisdictions, and sometimes the prosecutor wants to win too much, and so a case can become ‘personal’, or the defence will fight too hard, arguing over everything, including matters on which they have no instructions, taking every point, just to mess up the prosecution case. The big difference therefore is that it can be tricky to get though a case swiftly, and to keep things professionally friendly between the parties.

The former President of Yugoslavia, Slobodan Milošević, was charged in 1999 by the ICTY on 66 counts relating to the wars in Bosnia, Croatia and Kosovo in the 1990s. These included ‘complicity in genocide’ relating to the 1995 Srebrenica massacre in Bosnia, where over 8000 Muslim men and boys were executed. You were the assistant to Stephen Kay QC, the court-appointed defence counsel for Slobodan Milošević, what are the biggest challenges when defending somebody who has committed war crimes, like Milošević?

Well, Milošević was not convicted, as he died, so we need to be careful about concluding he did commit such offences. I also think he had quite a good defence to the Kosovo allegations, which was the area I was working on in 2004. The biggest challenge is that too many people in international criminal law cases assume the defendant is guilty, so it can be difficult to feel he is getting a fair trial.

How important do you think it is to have a broad understanding of conflict when working as an international criminal lawyer?

It is not important to have a broad understanding of conflict when working in international criminal law. Instead, you need to be a good lawyer; able to sift large quantities of information for what is probative, and to be able to comprehend what evidence is needed to prove offences. However, in-depth knowledge of the specific conflict in the case is important, so you need to be able to read up efficiently, if you are to get onto the case, as you will not be able to create a rapport with co-workers if you know too little.

In 2010 the International Criminal Court (ICC) charged the current President of Kenya, Uhuru Kenyatta, with crimes against humanity relating to the violence that erupted following the 2007 Presidential elections. After the incumbent President Kibaki declared himself the winner, over 1000 people were killed and 350,000 people were displaced. Whilst Minister for Local Government in Kibaki’s cabinet, Kenyatta allegedly commissioned the Mungiki criminal organisation to carry out widespread attacks against the non-Kikuyu populations in Nakuru and Naivasha. The ICC Prosecutor recently dropped these charges due to a lack of evidence. What do you think this says about the future of international criminal law?

Dropping the case against Kenyatta is a great success for international criminal law, as it shows the Prosecutor to be acting properly like a minister for justice. This means that when the case is weak, there will be no grandstanding by the prosecution, no politics played out in maintaining proceedings for fear of loss of face if not, causing vast expense by requiring a trial and the judges to acquit, rather than making the right decision on the evidence not to trouble the court.

What changes do you think international courts and tribunals should make to move forward in the twenty-first century?

Cases should be shorter, with time limits. Inexperienced lawyers should go. There should be less money paid (which is partly what makes the cases longer). There should be no trials in absentia. Judges should not be academics, but practising domestic trial judges, and ought to be more scrutinized before appointment. Trials should be as local as possible. After a major civil conflict, with 100,000 dead, it is arguable that 10,000 people convicted at a cost of $1000 per trial in a system with a 100 flaws is probably better than 100 convicted at a cost of $10m per trial in a system with only 10 flaws – now there’s something to discuss in class…

Do you think that international criminal law’s focus on ‘individuals who bear the greatest responsibility’ is the best approach to take when the distinction between high and low-level perpetrators is often blurred?

There is no other way – where there are war crimes, there are usually thousands of perpetrators, and international criminal law cannot currently cope with pursuing so many. In choosing who to pursue, we aim for the biggest fish, particularly so that there is not a sense of grievance created by easily convicting those lower in the chain (like the shooters at Srebrenica), and letting off the overall commanders, like Ratko Mladić. [The former Commander of the Bosnian Serb Army was indicted by the ICTY for genocide, crimes against humanity and war crimes in 1995 and is currently on trial after being arrested in 2011.] International criminal law seeks to remove impunity, and this means that if you can’t get everyone, then you go after those at the top.

How compelling do you find the claims that the ICC is a continuation of Western colonialism and that it applies selective justice?

Allegations of colonialism and selective justice are nonsense. Selective justice is the fault of the United Nations Security Council, not the ICC. It is easier to pursue crimes in Africa because there are no geopolitical games at play there. And Africans want their bad leaders held accountable: this is not colonialism.

Dora Robinson is a third year BA War Studies student at King’s College London.  Her main interests include international law, international organisations and their roles in contemporary conflict.​  She is Academic Secretary of the War Studies Society.  Like them on Facebook here and follow them on Twitter here @WarStudiesSoc.