Innocent civilians, prisoners of war need better protection
In conflict situations from Syria to South Sudan to Yemen, civilians still die and prisoners are still tortured. There still exist vast stockpiles of weapons of mass destruction in various parts of the world. Was not humanitarian law and the broader humanitarian movement not supposed to bring an end to all this suffering, abuse and destruction?
The body of rules and norms known as international humanitarian law (IHL) is premised on the sad but pragmatic realisation that armed conflict is part of the human condition. So, instead of turning a blind eye to this reality, IHL tries to humanise and soften the impact of armed conflict. This is done by means of two important strategies, one political and one legal.
The political strategy is to get states, and in some instances non-state actors, to sign on to treaties like the Geneva conventions of 1949 and the Additional Protocols of 1977, which deal with the protection of persons and property in times of armed conflict, as well as various treaties dealing with the prohibition of the use of certain weapons, including chemical and biological weapons, cluster munitions, anti-personnel mines, etc.
And while nuclear weapons, the most destructive of all weapons of mass destruction, are not yet banned under international law, a significant step towards that was taken last year with the conclusion of negotiations on the Treaty on the Prohibition of Nuclear Weapons. The legal strategy is to hold states and individuals accountable for violations of IHL.
Individual criminal liability for violations of IHL forms an important component of the legal strategy.
The creation of the post-World War II criminal tribunal at Nuremberg firmly established the principle that individuals can be held criminally liable for violations of IHL, also known as war crimes. The various successors to Nuremberg, now including the world’s first permanent International Criminal Court (ICC), serve as a reminder that war crimes are not committed by abstract entities but by human beings.
But international tribunals such as the ICC can only hear a small number of cases. The idea is that states must take the primary responsibility to implement and enforce the norms of IHL. South Africa has made the Geneva conventions and the Additional Protocols part of domestic law and war crimes are crimes under South African law because South Africa, currently still a member of the ICC, has implemented the Rome Statute of the ICC in terms of which individuals can be prosecuted for war crimes in South African courts regardless of where in the world the war crimes were committed.
This principle of universality is an important tool in the fight against impunity for the violations of the norms of IHL. Unfortunately, the ANC, at its December 2017 national convention, has reconfirmed the political decision to withdraw South Africa from the Rome Statute of the ICC, thus taking this country out of an important IHL enforcement mechanism.
The International Crimes Bill, which aims to repeal the implementation of the Rome Statute of the ICC Act, provides for war crimes but will not have the strong enforcement mechanism of universality and irrelevance of official capacity and non-applicability of immunities which distinguishes the Rome Statute from other enforcement mechanisms.
Some commentators point to the possibilities presented by a regional African Criminal Chamber as an alternative to the ICC. While regional mechanisms for the enforcement of international law, including humanitarian law, are certainly to be welcomed in principle, one should be careful not to overlook the evident disadvantages of the proposed African Criminal Chamber.
For one, African states thus far don’t seem to be very enthusiastic about the project, with only a small number of states having signed the Malabo Protocol (the foundational document of the envisaged African Criminal Chamber). There is also a lack of commitment in terms of resources.
In addition to several drafting flaws, it should also be mentioned that the Malabo Protocol provides for immunity from prosecution of heads of state, as well as senior government officials, which means that the proposed African Criminal Chamber will not be able to try leaders suspected of war crimes while they are in office.
Given the African continent’s unfortunate history of “presidents for life”, this simply means impunity for war crimes and other serious international crimes like genocide and crimes against humanity. This is exactly why it is important that states who are serious about the enforcement of IHL should insist on keeping everybody, including the most senior political and military leaders, accountable for violations of the rules and norms of IHL. And because states are sometimes unwilling or unable to enforce these norms, there is a need for an international tribunal (such as the ICC) which can step in and try those responsible for the violations of IHL.
South Africa will serve as a non-permanent member of the UN Security Council for the next two years (2019 to 2020). This will present the country with a good opportunity to illustrate that it is serious about the enforcement of international law, including IHL, despite its controversial stance on ICC membership.
International law enforcement depends on political will, and it is therefore imperative that states in a position to act - notably, the members of the Security Council must move beyond rhetoric and use every opportunity to advance the ideals of IHL.
Indeed, the killing of innocent civilians and the mistreatment of prisoners of war anywhere affect all of humanity and should concern all of us. This is the fundamental principle of universality and a common humanity which runs as a bright, red thread from Solferino through Syria and beyond.
* Gerhard Kemp is professor of law at Stellenbosch University and also assistant editor of the African Yearbook on International Humanitarian Law.
** The views expressed here are not necessarily those of Independent Newspapers.