The series of airstrikes that levelled entire neighbourhoods of Mosul and left residents shell-shocked is, by now, old news. The Pentagon has followed up with the usual platitudes of taking “allegations of civilian casualties very seriously,” a promise that such incidents will be looked into and that there will be an “investigation” into the incident, with the U.S. admitting a ‘probable’ contribution. None of this is new. The Pentagon, and any other military authorities involved, will complete their investigation, concluding that it was either a result of “human error” or of “procedure not being followed” and the world will move on. Except of course, for the loved ones of the dead, whose lives will be irretrievably damaged.
This satellite image released by the UN shows damaged houses in the Ayn at Taé district of Aleppo, Syria in September 2016.
Grief in journalism is of little use except to bemoan our fate. This latest one, however, is a useful reminder that the States is arguably doing the most damage to human life across the world, and has also led the charge in crippling and tying down every institution sought to be created that has attempted to impose accountability for such actions. Whether the actions that led to this unconscionable loss of human life constitute ‘war crimes’ or not, at the very least, the decision-making that culminated in this shelling is subject to scrutiny under international humanitarian law. This area of law, contrary to popular perception, is not meant to serve as merely a set of guidelines for the US to reject at their will. The First Additional Protocol to the Geneva Conventions of 1949 provided in Art 90, for the creation of an International Fact Finding Commission that would be permanently instituted and that was supposed to have the power to enquire into allegations of violations of humanitarian law.
While the Commission has been “constituted,” in that experts have been recruited and can be called upon to commence an inquiry, the Commission has never been used or even activated. This is because the Commission may conduct an investigation only with the consent of the parties involved. This consent can either be given permanently through a declaration or for a particular instance. The First Additional Protocol, dealing as it does with international armed conflicts between States, therefore requires the States at fault to consent. For obvious reasons, obtaining the consent of States to this jurisdiction has proved impossible, and therefore the Commission has continued to be dormant. Attempts by Medecins Sans frontiers to demand accountability through the Commission after the bombing of the hospital in Kunduz, Afghanistan, also did not bear fruit, with the U.S. insisting on carrying out it’s own investigation. It must also be noted that this is a Fact-Finding Commission, and therefore not capable of imposing punitive sentences, of handing down a sentence of imprisonment, or of imposing penalties. These realities may evoke a reaction of disillusionment, especially with the idea of international legal constraints, but it is also a reflection of the fact that international institutions are as powerful as States choose to make them, and the supremacy of the nation-state has not, thus far, allowed for many forums in which States voluntarily subject themselves to the jurisdiction of international experts.
The other, and perhaps better known institution that has the capacity to be able to hold States accountable for their conduct during war, is of course, the highly maligned International Criminal Court. Established by the Rome Statute in 2002, the Court, with it’s permanent seat in the Hague, is not within the framework of the United Nations, but it’s jurisdiction is based on the State having signed and ratified the Rome Statute. The ICC has jurisdiction over war crimes, crimes against humanity, and the crime of genocide. It also has jurisdiction over the crime of aggression, although jurisdiction over it has to be consented to, separately by States, that are already parties to the Rome Statute. Within the sub-division of war crimes, the ICC can try individuals for specific and limited violations of rules of international humanitarian law which does include intentional launching of an attack that can cause excessive incidental injury to civilians.
Will these recent incidents constitute war crimes? It would be improper to speculate, but should there be good reason to believe that a war crimes allegation should be credibly explored, ideally, the ICC can look into it. It must be highlighted that the ICC, being an institution that applies criminal law, is not restricted to handing down judgements that a State institution should obey or implement. Rather, it tries individuals for their role and involvement in the commission of these crimes and sentences them, if found guilty, to imprisonment. In that sense, being tried before the ICC has very real and immediate consequences for those within its jurisdiction.
For obvious reasons, since the Rome Statute is built on the consent of State Parties, very few large and powerful countries have signed and ratified the treaty. The United States, although a vocal participant during the negotiations that led to the adoption of the Rome Statute, refused to ratify it, and has extended support when it served U.S interests. The George W. Bush administration even went to the extent of concluding agreements with several countries where the U.S. armed forces operate, to the effect that American soldiers would not be handed over to the ICC. The economic and military muscle that the U.S could bring to bear upon many of these countries served it well, and the U.S has since spent considerable effort shielding its soldiers from the ICC. The same is true of Russia, which, although a signatory to the Rome Statute until last year, refused to take the step to ratify it and withdrew it’s signature, days after the ICC submitted a report on the Crimea situation. Russia cited ‘concerns’ that the Court was not living up to its expectations. An accusation that is as ironic as surprising, given the reality that the Court’s activities have been restricted and frustrated almost exclusively by the action of the two former superpowers. By refusing to ratify or support the Court, they are effectively reducing the legitimacy and reach of the international legal framework.
The above is not meant to function merely as a primer on two well-intentioned but sadly hogtied international institutions. It is a reminder that at a point in human history when States sought to move beyond the rhetoric of the ‘supremacy of the nation-state’, the States most suited to shore up and strengthen this basic framework have ripped the pillars from their foundations. It is an opportunity for populations in powerful countries to confront the fact that the simmering grief and helplessness they feel when reading these news snippets need not have been so, but that their own governments have repeatedly stymied the overtures to reduce human brutality. Most recently, carried along with the Brexit momentum and the anti-EU sentiment that the vote implied, British PM Theresa May promised that British soldiers would not be subjected to such ‘human rights standards’ and that the armed forces will be able to demand more loyalty and protection going forward. As one of the only two permanent members of the security council who are parties to the Rome Statute, this signalling from May forebodes a time of even less accountability to come.
The impetus to provide accountability for such actions is not merely to assuage our humanity and to fulfil an ideal of civilisation that we believe ourselves to have reached. Accountability in war is fundamental to mitigating the vicious cycle of violence and hatred that sustains and breeds conflict. In what has now become a mini social media incident (in comparative terms), Reza Aslan, controversial religious scholar and host of the CNN show ‘Believer’, tweeted a veritable taunt, asking his followers what they would do if their country was repeatedly bombed, and their children shredded before their eyes. It would seem that Aslan believes such bombing campaigns form the roots of radicalisation and fuels extremism. Aslan irresponsibly legitimises extremism and conflates nuanced issues into simple revenge, while also attempting to validate the theory of western neo-imperialism as the primary cause for all of our problems, all of which should be criticised and scrutinised. But this reckless massacre of civilians in cities and regions who have been suffering under a brutal religious regime is nothing short of inhumane and is not going to bode well for either the Middle East, or the countries involved in the bombing campaigns in the future. It is bound to create resentment, despairing helplessness and rage, and leave the moral psyche of the people under attack crippled, with little thought being given to the recovery and rehabilitation of the region. In another decade, the world may well find itself back here today. Encouraging accountability on the part of warring forces, especially on the part of the more powerful States involved, is vitally necessary, both to influence the behaviour of armed forces accordingly and for affected populations to believe in an idea of justice. The voting public of countries should be aware that, in addition to demonstrations and editorials, there needs to be a significant effort towards creating a domestic political consciousness and a political alternative more open to international systems.
Readers may well wonder, why put in the effort to create and shore up these systems that are perceived to erode sovereignty? Why must countries be open to being regulated and judged by others? If anything, the above narrative could be construed as confirming everyone’s worst suspicions about international law and may even spur some to abandon it altogether. Those critical of international and regional legal systems will point to these as profound failures that prove their point, and the reading public may be compelled to shrug their shoulders and accept the inevitability of asymmetrical power in international relations. But we would do well to remember that threats to safety and security emerge frequently across borders, and regions. Attempts through military or other forces to counter these threats are bound to be confronted with allegations of unfair interventionism and infringement of sovereignty. If the West, its allies and like-minded countries want a future in which democracy and rule of order can be restored without being caricatured as evil invaders, that can only be done through a robust international system that can build upon its legitimacy by bringing to account developing and developed countries, the East and West, Global North and South. Creating institutions just to cut them off at the knees is not leading to a safer world for anyone – either the nationalists, elites or the globalists.
Lawyer, activist against sexual violence and exploitation. You can follow her on twitter @lblwcri.