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ABSTRACT
If the substantive truth, the actual situation in a war and post-war recovery based on the consequences of the war, is seemingly easy to determine in law, the judgments of international courts deciding on cases which occurred during the war do not attest to this. Substantive law is important, but procedural law is perhaps more significant with regard to rulings on war and post-war recovery. Only the highest degree of certainty is sufficient for a final and enforceable judgment. One of the key conditions for reaching a final and enforceable judgment is the consideration of the substantive and procedural conditions of proof, which is not possible without legal, relevant and legitimate evidence. This article argues that it should not be forgotten that in cases of legal proceedings against a certain military commander, the country whose armed forces they commanded is also always involved. If a member of a certain armed forces is legally convicted or acquitted, the country on whose behalf they acted as a military person in a military unit of that country is also legally convicted or acquitted. So, in international judicial proceedings, the implementation of procedural legislation and the will of legislators in war and post-war recovery has a different meaning from ‘ordinary’ criminality.
War, as an extreme form of human violence which results in the biggest and most tragic events experienced by a country and its population, requires special forms of proving the consequences of war actions. The International Humanitarian Fact-Finding Commission should perhaps play a much greater role in this than it currently does.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
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7 Article 90, para. 2a of Protocol I additional to the Geneva Conventions of 1949: ‘The Commission shall be competent to: (i) enquire into any facts alleged to be a grave breach as defined in the Conventions and this Protocol or other serious violation of the Conventions or of this Protocol; (ii) facilitate, through its good offices, the restoration of an attitude of respect for the Conventions and this Protocol’.
8 A fact expresses what actually happened.
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18 United Nations Security Council Resolution 827, adopted unanimously on 25 May 1993.
20 Ibid. Article 2.
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22 Statute of the International Criminal Tribunal for Former Yugoslavia, Article 4.
23 ‘In order to secure the guarantees afforded to the victims of armed conflicts, Article 90 of the First Additional Protocol to the Geneva Conventions of 1949 (AP I) provides for the establishment of an International Fact-Finding Commission. The International Humanitarian Fact-Finding Commission (IHFFC) was subsequently established in 1991.’ https://www.ihffc.org/index.asp?Language=EN&page=home.
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28 Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field. Geneva, 27 July 1929. Art. 30: On the request of a belligerent, an enquiry shall be instituted, in a manner to be decided between the interested parties, concerning any alleged violation of the Convention; when such violation has been established the belligerents shall put an end to and repress it as promptly as possible.
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32 Swedish Penal Code: Brottsbalk (1962:700). Om brott och brottspåföljder, Om brott av krigsmän. https://www.riksdagen.se/sv/dokument-lagar/dokument/svensk-forfattningssamling/brottsbalk-1962700_sfs-1962-700#K1. Israeli Penal Code: חוק העונשין, תשל’ז. https://www.nevo.co.il/law_html/law01/073_002.htm#med0. Dutch Penal Code: Wetboek van Strafrecht. https://wetten.overheid.nl/BWBR0001854/2023-01-01. Slovenian Criminal Code: Kazenski zakonik. http://pisrs.si/Pis.web/pregledPredpisa?id=ZAKO5050.
33 Statute of the International Criminal Tribunal for Former Yugoslavia. Art. 2.
34 Rules of Procedure and Evidence. https://www.icty.org/en/documents/rules-procedure-evidence
35 CC/PIO/133-E, The Hague, 29 November 1996. https://www.icty.org/x/cases/erdemovic/tjug/en/961129_Erdemovic_summary_en.pdf
36 The Prosecutor v. Jean-Paul Akayesu. ICTR-96-04. https://ucr.irmct.org/scasedocs/case/ICTR-96-04#appealsChamberJudgement
37 The Prosecutor v. Jean-Paul Akayesu. ICTR-96-04. Akayesu – Appeal Judgement on 1 June 2001. https://ucr.irmct.org/LegalRef/CMSDocStore/Public/English/Judgement/NotIndexable/ICTR-96-04/MSC15451R0000621563.PDF
38 ‘The trial of Jean-Paul Akayesu begins. On 2 September 1998, the Trial Chamber found Akayesu, the former bourgmestre of Taba commune, guilty of genocide. With this case, the ICTR becomes the first international tribunal to enter a judgement for genocide and the first to interpret the definition of genocide set forth in the 1948 Geneva Conventions. In the same judgement, the ICTR also for the first time defined the crime of rape in international criminal law and recognised rape as a means of perpetrating genocide.’ https://unictr.irmct.org/en/genocide.
40 ECHR. Case of Kononov v. Latvia. (Application no. 36376/04). https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-98669%22]}.
41 Ibid., p. 63.
42 ICY. Legality of Use of Force (Yugoslavia v. Belgium) (Yugoslavia v. Canada) (Yugoslavia v. France) (Yugoslavia v. Germany) (Yugoslavia v. ltaly) (Yugoslavia v. Netherlands) (Yugoslavia v. Portugal) (Yugoslavia v. Spain) (Yugoslavia v. United Kingdom) (Yugoslavia v. United States of America). https://www.icj-cij.org/en/case/114
43 Convention on the Prevention and Punishment of the Crime of Genocide. https://www.un.org/en/genocideprevention/genocide-convention.shtml
46 Christopher Greenwood, ‘International Law and the NATO Intervention in Kosovo.’ (2000) 49(4) International & Comparative Law Quarterly 926–34.
48 The Prosecutor v. Thomas Lubanga Dyilo. ICC-01/04-01/06. https://www.icc-cpi.int/court-record/icc-01/04-01/06-2842
49 Letizia Lo Giacco, Judicial Decisions in International Law Argumentation: Between Entrapment and Creativity (Bloomsbury Publishing, 2022).
50 Shane Darcy, Judges, law and war: the judicial development of international humanitarian law. Vol. 107. (Cambridge University Press, 2014).
51 If two countries are at war, or at least one of them is, it is not realistic to expect either of them to follow the judgments of each other’s courts.
52 Linda J. Silberman, ‘Judicial jurisdiction and forum access: the search for predictable rules.’ (2019) Private International Law; Guy Harpaz, ‘The European Court of Justice and its relations with the European Court of Human Rights: the quest for enhanced reliance, coherence and legitimacy.’ (2009) 46(1) Common Market Law Review.
53 ICTY, Prosecutor v. Tadić, Case No. IT-94-1-AR72, Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995 (‘Tadić Interlocutory Appeal Decision’).
54 Manisuli Ssenyonjo, ‘State Withdrawal Notifications from the Rome Statute of the International Criminal Court: South Africa, Burundi and the Gambia.’ Criminal Law Forum. Vol. 29. No. 1. (Springer Netherlands, 2018).
55 Richard H Steinberg, ‘The Issue of State Party Withdrawal.’ The International Criminal Court: Contemporary Challenges and Reform Proposals, (Brill Nijhoff, 2020) 112–14; Sandy Kurnia Christmas, ‘Impact of Withdrawal State Parties in 1998 Rome Statute of the Existence of International Criminal Court.’ (2020) 4(1) Nagari Law Review 28–37.
57 Ibid., para 13: ‘The Trial Chamber must satisfy itself that this offence with which the accused is charged was defined with sufficient clarity under customary international law for its general nature, its criminal character and its approximate gravity to have been sufficiently foreseeable and accessible. When making that assessment, the Trial Chamber takes into account the specificity of international law, in particular that of customary international law. The requirement of sufficient clarity of the definition of a criminal offence is in fact part of the nullum crimen sine lege requirement, and it must be assessed in that context.’
58 With completely predictable judgments, we would perhaps or at least be in conflict if, for example, the ICJ wanted to apply one of the other provisions of Article 38 of the ICJ Statute, except as specified in paragraph 1/a: ‘The Court shall apply: international conventions, whether general or particular, establishing rules expressly recognized by the contesting states.’ Also, with completely predictable judgments, we would perhaps or at least be in conflict if the ICC wanted to apply any of the other provisions of Article 21 (1) of the ICC Statute, except as provided: ‘The Court shall apply: In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence. In the second place, where appropriate, applicable treaties.’
59 Statute of the International Court of Justice, Article 38. Géza Herczegh, ‘The General Principles of Law Recognized by Civilized Nations.’ (1964) 6(1) Acta Juridica; Pierre-Marie Dupuy, Literature Review Article: Customary International Law, (Edward Elgar Publishing Limited, 2021).
60 ICTY. Krstic (Appeal) (IT-98-33-A). https://ucr.irmct.org/scasedocs/case/IT-98-33#appealsChamberJudgement
61 ICTR. ICTR-00-55B. Trial Chambere II, 6. December 2010.
62 Fergal Gaynor, ‘Prosecution at the ICTY: Achievements and Challenges.’ (2012) Südosteuropa Mitteilungen 03 18-31.
63 ICC. ICC-01/12-01/15.
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66 ECHR, Applications nos. 2312/08 and 34179/08.
67 ICJ. Armed Activities in the Territory of the Congo (Democratic Republic of the Congo v. Uganda). 9. February 2022.
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69 Mikhail Pozdniakov, ‘The Courts and the Law Enforcement System: The Price of Compromise.’ (2016) 54(2-3) Russian Politics & Law 164–90.
70 Certain Iranian Assets (Islamic Republic of Iran v. United States of America), Preliminary Objections, Judgment, I.C.J. Reports 2019 (I), pp. 42-43, para. 113.
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74 Guy Harpaz, ‘The European Court of Justice and its relations with the European Court of Human Rights: the quest for enhanced reliance, coherence and legitimacy.’ (2009) 46(1) Common Market Law Review.
75 Article 90, para. 2d of Protocol I additional to the Geneva Conventions of 1949.
76 Article 90, para. 2c of Protocol I additional to the Geneva Conventions of 1949.
77 The IHFFC made two statements regarding the war in Ukraine in 2022 (on 10 March 2022 and 25 April 2022). Unfortunately, we can see that these initiatives are ineffective, on both the Ukrainian and Russian sides.
78 Following the decision of the Committee of Ministers on 16 March 2022 the Russian Federation is no longer a member of the Council of Europe.
79 The Convention for the Protection of Human Rights and Fundamental Freedoms: https://www.echr.coe.int/Pages/home.aspx?p=basictexts&c. Müller, Amrei. ‘Domestic authorities’ obligations to co-develop the rights of the European Convention on Human Rights.’ The International Journal of Human Rights 20.8 (2016): 1058-1076.
80 Antoine Buyse, ‘The pilot judgment procedure at the European Court of Human Rights: possibilities and challenges.’ (2009) 57 Nomiko Vima (The Greek Law Journal) 1890–1902.
81 Kosovo is recognized as a country, but not by all members of the European Union, let alone all members of the United Nations General Assembly. This presents a major challenge not only for the future of Kosovo and its neighbouring countries, but for the entire Balkan region. Historically speaking, the Balkans are the ‘melting pot’ of most wars in Europe.
82 Colter Paulson, ‘Compliance with final judgments of the International Court of Justice since 1987.’ (2004) 98(3) American Journal of International Law 434–61.
83 Teresa Barnes, ‘‘The Best Defense is to Attack’: African Agency in the South-West Africa Case at the International Court of Justice, 1960-1966.’ (2017) 69(2) South African Historical Journal 162–77.
84 The ICC prosecutor became relatively quickly involved in the situation in Ukraine in 2022, but, unfortunately, the ICC has not yet been operationalized to the point where he could actually do something.
85 George Ginsburgs, ‘Laws of War and War Crimes on the Russian Front during World War II: The Soviet view.’ (1960) 11(3) Soviet Studies 253–85.
86 Olsen Henrik Palmer, ‘International Courts and the Doctrinal Channels of Legal Diplomacy.’ (2015) 6(3-4) Transnational Legal Theory 661–80.
87 Evelyne Schmid, ‘A few comments on a comment: the UN Human Rights Committee's General Comment No. 32 on Article 14 of the ICCPR and the question of civilians tried by military courts.’ (2010) 14(7) The International Journal of Human Rights 1058–71.
88 At the time of writing, Russia still has not declared war on the entire area of Ukraine, but only a ‘special military operation’. Russia, as a permanent member of the Security Council with a veto power which it can exercise at any time, is certainly causing a lot of confusion in international law for enforcing the distinction between a ‘special military operation’ and ‘war’, seeing as the international community will have to first internationally regulate whether there is a war going on in Ukraine or not. From a purely legal point of view, the situation is easier to determine. However, provided that the Statute of the court will not clearly and unequivocally determine what this war is, it will not be so predictable with certainty from the point of view of the court, which can be claimed on the basis of the case law of international courts which have tried cases of war crimes and post-war recovery. In the event of the establishment of a special court responsible for Ukraine, its Statute will need to state at least whether this is a war or an armed conflict, and explain in detail the key components of a war crime.