To what extent is international criminal law still primarily concerned with prosecuting crimes connected to the state?

About the author(s):

Victoria Priori

Victoria Priori is a PhD Candidate in International Law and Teaching Assistant at the Geneva Graduate Institute (IHEID), specialising in international criminal law and the application of such norms to members of non-state armed groups. Her latest research has involved extensive work on the crime of torture (see here and here).

In 2018, the Appeals Chamber of the International Criminal Court (ICC) acquitted Jean-Pierre Bemba, President and Commander of the Movement for the Liberation of the Congo, in relation to charges for war crimes and crimes against humanity. Similarly, Bosco Ntaganda, the leader of a Congolese militia group fighting in the Ituri Region of the Democratic Republic of the Congo (DRC) has been charged to thirty years of imprisonment for charges of war crimes and crimes against humanity and in 2021, the Appeals Chamber ruled the decision as final.

These are only a few examples of international criminal cases brought before the ICC against members of non-state armed groups. Moreover, aside from the cases brought before international tribunals or courts like the ICC, it is worth acknowledging that most of the prosecutions of members of non-state armed groups for international crimes takes place before domestic courts (see here and here). Irrespective of whether the prosecution happens at the international or domestic level, members of non-state armed groups are being accused and charged for crimes under international law. However, international criminal law (ICL) originally arose in the aftermath of the Second World War to punish criminal behaviours somehow connected to the state machinery.

In light of these developments, this post discusses the evolution of ICL from a branch of law specifically envisioned to tackle behaviours linked to the state to a system of norms nowadays mostly used to hold members of non-state armed groups accountable and enforce human rights. The post concludes by claiming that caution is required when dealing with members of non-state armed groups, as these were not the original protagonists for whom ICL norms were developed.

International Criminal Law as a Tool to Punish Crimes Linked to the State

The idea that ICL developed as a field of law specifically envisioned to deal with crimes committed by individuals somehow linked to state is no novelty. This was the rationale of the Post-World War II trials, where the main objective was to punish the German and Japanese regimes for initiating an aggressive war.

The rationale supporting the perception that crimes committed by state agents or individuals acting on behalf or in connection with the state had to be punished at the international level arose as, in these instances, the national penal machinery would be inefficient or unable to pursue justice adequately (Gaeta 2009). This inappropriateness of domestic criminal prosecutions for individuals somehow connected with the state is exemplified by the Post World War I trials of German war criminals, also known as the Leipzig trials. While these trials represented the first-time individuals could be punished directly at the international level, the Allies ultimately agreed for Germany to punish its own war criminals before the Supreme Court in Leipzig, mostly in accordance with the norms provided for in the German military criminal code. This ‘domestic approach’ to justice after World War I revealed itself as an enormous failure since out of 895 individuals (Bassiouni 2002) listed by the Allies, only 12 eventually faced trial (Meron 2006).

After World War II, a similar failure could not be replicated and, this time, prosecution of the major war criminals had to take place at the international level. So it happened. Nuremberg and the International Military Tribunal for the Far East (IMTFE) represented the first occasion when individuals were held directly responsible before international tribunals. Given the ultimate objective of punishing the German and Japanese regimes, the link with the state and its apparatus was easily established during these proceedings. Consequently, post-World War II, ICL went hand in hand with the idea of punishing conducts associated with the state. Eventually, the norms contained in the London Charter and its quasi replica for the IMTFE were endorsed by the international community with the adoption of the Nuremberg Principles by the International Law Commission, forming the skeleton of what came to be known as ICL.

International Criminal Law becomes an Enforcement Mechanism for Human Rights

The second half of the 20th century was a flourishing moment for international law. Human rights started to increasingly gain momentum and, as a result, human beings became subjects of international legal rights and obligations (Bassiouni 2012). The centrality acquired by the individual as a subject of rights gradually prompted a shift in the perception of ICL. Initially perceived as an instrument to tackle state impunity, ICL began to be understood as a useful tool to fight impunity irrespective of state involvement and as a measure to enforce the protection of human rights (Bassiouni 1982 & Clapham 2006 & Pinto Soarez and Kreutzer 2018). The most tangible effect of this new purpose for ICL can be detected in the calls for the application of its norms to situations where impunity involved acts and conducts by non-state armed groups.

This perception of ICL as an enforcement mechanism for human rights irrespective of the entity behind the most heinous crimes was shaped and influenced by many elements, all putting justice for victims and individuals at the centre, such as the human rights movement and civil society, victimology, the revolution in communication technologies and globalisation, the increase of non-international armed conflicts (NIACs) with the respective almost disappearance of international ones (IACs) (Palik, Rustad, Methi 2020), among others. Importantly, all these elements were feeding into each other, making it hard to establish any sort of causal relationship between any of these factors and the perception of ICL as a mechanism to enforce human rights, which in any case would be beyond the scope of this post.

Notably, the abovementioned forces all pushed for the application of ICL norms envisioned to tackle crimes linked to the state to situations such as Rwanda and Bosnia Herzegovina since inaction was no longer acceptable. This, however, did not automatically imply a detachment from the idea of punishing crimes committed with the involvement of the state and those acting in connection with the state apparatus. International documents adopted in the late 20th century like the UN Convention against Torture (UNCAT) still referenced the state apparatus when mentioning who could be a qualified perpetrator, meaning that torture “is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity”. Interestingly, even crimes that were not explicitly mentioning the state in their definitions were still perceived as state crimes, as was the case for genocide (Rodenhäuser 2018 & Schabas 2008) and the crime of apartheid (Bantekas and Nash 2007 & Schabas 2016). Additionally, the first cases under the principle of universal jurisdiction dealing with international crimes were all against state officials (e.g. General Pinochet or members of the Argentinian military junta), flagging once again the priority associated to fighting crimes associated with the state (Wilson 1996).

Going beyond Crimes Linked to the State in an Attempt to Universally Enforce Human Rights 

On an opposing note, while the attention on state impunity was still high, attempts were made to broaden the definitions of international crimes to cover situations beyond those somehow connected to the state. For example, the regime of individual criminal responsibility for violations of the laws of war, originally associated with the concept of grave breaches of the Geneva Conventions applicable only in IACs was expanded to deal with NIACs when the International Criminal Tribunal for the Former Yugoslavia (ICTY) decided its first case in 1995 (see here). Prior to that judgment, war crimes were implicitly linked to the notion of the state, following Nuremberg’s footsteps. Crimes against humanity defined in article 5 of the ICTY Statute were also expanded compared to post-World War II, as for the first time, this category of crimes covered acts committed during NIACs (the Statute of the International Criminal Tribunal for Rwanda does not refer to armed conflict, but due to its jurisdictional basis, it covered conducts in NIACs, see here).

Another major turning point in the application of the definitions of international crimes to individuals committing crimes with no link to the state came with the adoption of the Rome Statute of the ICC in 1998. With the Rome Statute, the legal framework for war crimes applicable in NIACs was extensively detailed and built upon. Along the line, the definition of crimes against humanity lost the nexus to an armed conflict; instead, a requirement of “state or organizational policy” was added to the definition in article 7 of the Rome Statute. This requirement of an organisational policy was discussed in 2010 by the ICC Pre-Trial Chamber, concerning the post-electoral violence exploded in Kenya, to understand whether entities other than the state can provide the necessary contextual elements for crimes against humanity (see here).

At the domestic level, an important endeavour to expand crimes’ definitions was the R v TRA Case before the UK Supreme Court in 2019. This case against Agnes Reeves Taylor highlighted the need to understand whether torture committed by or with the indirect involvement of members of a non-state armed group could satisfy the requirement of an individual acting in an official capacity. The answer “was in the affirmative, but only limited to members of non-state armed groups exercising de facto governmental control over a territory” (Priori 2021). More recently, individuals that are members of Daesh (Islamic State of Iraq and Levant) were convicted before German Courts for genocide against the Yazidis community. Next, in 2006 the crime that par excellence is considered a state crime, i.e. the crime of aggression, was defined as applicable to acts by members of non-state armed groups in the Protocol on Non-Aggression and Mutual Defence in the Great Lakes Region.

Members of Non-State Armed Groups are the New Protagonists of International Criminal Law

ICL is at a crossroads between efforts to expand the applicability of its norms to members of non-state armed groups and the more traditional understanding according to which such norms should punish conducts somehow related to the state. The result is a schizophrenic regime characterised by an unresolvable tension between those still envisioning ICL as conceived in Nuremberg and others who see a broader need for the fight against impunity. The latter suggest that ICL should care about perpetrators even for the crimes where a state is not involved, as the most noble objective for ICL would be putting human beings and human rights at the forefront, something that can hardly be condemned.

Still, while these mentioned expansions of ICL norms have been a response to end impunity and enforce human rights, they also have the potential to represent a threat to the foundational principles on which ICL has been constructed. In fact, since non-state armed groups were not the addressees of these norms, when ILC norms are applied to members of these groups, many questions emerge, for instance relating to the principle of legality (see here and here) or the rights of the accused. Notably, addressing these issues is of utmost urgency and importance since, as demonstrated by the examples, proceedings are increasingly initiated against members of these groups possibly turning them into the future protagonists of ICL.

In conclusion, while the role for ICL as a tool to enforce human rights can hardly be contested from an ethical standpoint, from a practical viewpoint, caution should be warranted, as there is the potential risk of drowning a system initially envisioned to deal with only the most exceptional instances of crimes linked to the state.  

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