Prosecution of Violations of IHL

International Humanitarian Law April 2011

Since World War II, a number of methods for investigat‌ing and prosecuting war The Red Cross under international humanitarian law (IHL), and International and have become prominent. Four of the most common methods are Humanitarian Law discussed below. The Red Cross and the were born when Henry Tribunals and Although U.S. courts have tried Dunant witnessed the devastating Courts in the enemy nationals since the American consequences of war at a battlefield Military tribunals and courts administer Revolution, the term “military in Italy. In the aftermath of that battle, justice for members of the United commis‌sion” was first used during the Dunant argued successfully for the States (U.S.) Armed Forces under Mexican War (1846-‌1848). It was used creation of a civilian relief corps to respond to human suffering during the U.S. Uniform Code of Military to distinguish “commissions,” which tried conflict, and for rules to set limits on Justice (UCMJ). These tribunals have enemy nationals, from military tribunals/ how war is waged. over crimes ranging from courts, which tried American soldiers. Inspired in part by her work in the domestic criminal acts to violations of That distinction has continued to the Civil War, Clara Barton would later IHL. All nations that are parties to the present day. found the American Red Cross and Geneva Conventions are required to also advocate for the U.S. ratification Historically, military commissions‌ have pass domestic legislation that provides of the first Geneva Convention. been used to try persons not otherwise penalties for IHL violations. They are sub‌ject to military law, including U.S. obligated to prevent breaches of the citizens, for violations‌ of IHL and Geneva Conventions and to investigate other statutory offenses (such as and prose‌cute them when they occur. ter‌rorism). Military commissions can In the U.S., each branch of the Armed be established either in the U.S., on Forces is responsible for investigating territory occupied by the U.S., or on and prosecuting violations of the foreign territory with consent of the Geneva Conventions com‌mitted by local authorities. U.S. military personnel. The U.S. has tried members of the military for IHL The recent U.S. military commissions violations, such as in the My Lai trials of have undergone various alterations the 1970s. since their inception. On November 13, 2001, President Bush issued a military Military Commissions in order decreeing that foreign nationals

the United States detained for terrorist acts would be tried B. Schaeffer/ICRC A military commission is a type of by military commissions. In June 2006, military court. The U.S. has used military the U.S. Supreme Court ruled in the commissions for three basic purposes: case of Hamdan v. Rumsfeld that the To Learn More military commissions were not expressly To learn more about international 1. To try enemy belligerents for humanitarian law, and find opportunities authorized by any congressional act, violations of IHL; to promote these rules through the and violated the legal protections for 2. To administer justice in territory free curriculum Exploring Humanitarian individuals set forth in the UCMJ and www.redcross.org/ihl occupied by the U.S.; and Law, visit . Ask the Geneva Conventions. As a result, your local Red Cross chapter for more 3. To replace civilian courts where the U.S. Congress passed the Military information about IHL classes. martial law has been declared. Commissions Act (MCA) of 2006 H20980-3

www.redcross.org/ihl 1 Prosecution of Violations of IHL International Humanitarian Law April 2011 with new rules for the commissions. Ad hoc international criminal tribunals to set up the Extraordinary Chambers Under the MCA of 2006, a new have received renewed attention with in the Courts of Cambodia (ECCC) for executive order dated February 14, the establishment of the International the prosecution of Khmer Rouge-era 2007, established military commissions Criminal Tribunals for the former crimes in Cambodia. Lebanon and the to try individuals designated as “alien Yugoslavia (ICTY) and Rwanda (ICTR) U.N. entered into an agreement in 2007 unlawful enemy combatants.” by the (U.N.) Security to establish the Special Tribunal for Council in 1993 and 1994, respectively. Lebanon (STL) in order to prosecute On January 22, 2009, President These tribunals have been granted individuals responsible for the attack Obama issued an executive order that powers to hear cases addressing: of February 14, 2005, resulting in the suspended the military commissions death of former Prime Minister Rafiq in order to review the status of each 1. Grave breaches of the Geneva Hariri and in the death or injury of other individual detained by the U.S. at Conventions, including willful persons. Guantanamo Bay. On May 15, 2009, killing, torture and inhumane President Obama announced that treatment; For more information, please see the military commissions were appropriate 2. Violations of the laws and customs websites of: for trying individuals who violated IHL, of war; • International Criminal Tribunal for provided that the commissions were 3. Genocide; and the former Yugoslavia properly structured and administered, 4. Crimes against humanity, such as (http://www.icty.org) and that several changes to the rules murder, deportation, torture and • International Criminal Tribunal for governing them would be sought. rape. Rwanda (http://www.ictr.org) Subsequently, Congress passed the Although they are both still in place, • Special Court for Sierra Leone Military Commissions Act (MCA) of these tribunals are not permanent (http://www.sc-sl.org) 2009. Attorney General Holder, on international criminal courts. They only • Extraordinary Chambers in the November 13, 2009, announced that have jurisdiction to deal with crimes Courts of Cambodia he had decided to refer five defendants committed in, respectively, the former (http://www.eccc.gov.kh) back to the Department of Defense to Yugoslavia since 1991 and in Rwanda • Special Tribunal for Lebanon face military commission trials. or by Rwandan nationals in neighboring (http://www.stl-tsl.org) International Criminal coun‌tries in 1994. Although these tribunals have faced many challenges, International Criminal Tribunals their work has renewed interest The most well-known form of Court (ICC) and efforts toward making judicial The ICC is the first permanent prosecution for violations of IHL is an mechanisms a vital component of IHL that has the right international war crimes tribunal. The implementation. to investigate and bring to justice‌ first tribunals were the International individuals who commit the most Military Tribunals held in Nuremberg Recently, hybrid or mixed courts serious violations of IHL, as well as (1945-1946) and Tokyo (1946- with both international and domestic war crimes, genocide, crimes against 1948) after World War II. These ad components have been established. humanity and the of aggression. hoc tribunals were exceptions to the The Special Court for Sierra Leone was Unlike the International Court of Justice general means of IHL enforcement. established in 2000 by an agreement (the World Court) in The Hague, which More commonly, war crimes trials were between the government of Sierra hears only cases between States or conducted by States in accordance with Leone and the U.N. to prosecute provides advisory opinions, the ICC tries their domestic legislation. For example, violations of both international and individuals. The ICC is also located in after World War II, trials of German domestic crimes committed since 1996 The Hague. war criminals were held in France, in the conflict in Sierra Leone. In 2003, Netherlands, Poland and Israel. an agreement between the government of Cambodia and the U.N. was signed

www.redcross.org/ihl 2 Prosecution of Violations of IHL International Humanitarian Law April 2011

The ICC was created based on the Definition of crimes:The Rome Rome Statute, a treaty adopted in Statute and its subsidiary document, Rome, Italy, on , 1998. On April The Elements of Crimes, give detailed 11, 2002, the Rome Statute received definitions of genocide, war crimes its 60th ratification and entered into and crimes against humanity. On force on July 1, 2002. The inaugural June 11, 2010, the ASP adopted a session of the ICC took place on March resolution at the Review Conference in 11, 2003. As of February 2011, 114 Kampala, Uganda, regarding the crime countries are States Parties to the of aggression, including the definition Rome Statute. All the members of the of the crime. However, pursuant to European Union and the North Atlantic the resolution, the ICC will not have Treaty Organization (NATO), except for jurisdiction over the crime of aggression the United States and Turkey, are party until certain conditions are met. to this treaty. These conditions include ratification or acceptance by 30 States of the As of February 2011, three States proposed amendments to the Rome party to the Rome Statute, the Central Statute, and a decision to take place African Republic, Democratic Republic after January 1, 2017. of the Congo and Uganda, have referred situations occurring on their For more information, please see: respective territories to the Office of the • American Red Cross fact sheet on Prosecutor (OTP). The OTP has opened the ICC (www.redcross.org/ihl) investigations into all three situations. • International Criminal Court website On March 31, 2005, the United (http://www.icc-cpi.int) Nations Security Council referred the situation in Darfur, Sudan, to the ICC. Furthermore, in November 2009, the OTP requested authorization from the Pre-Trial Chamber for an investigation regarding post-election violence in Kenya. The OTP, as of November 2009, is conducting preliminary examinations in a number of countries including Colombia, Côte d’Ivoire, Afghanistan, Georgia, Palestine, Guinea, Honduras, Nigeria and the Republic of Korea. On January 26, 2009, the ICC began its first trial for the case of Thomas Lubanga Dyilo regarding his involvement in the situation in the Democratic Republic of the Congo. The trial continued into 2011.

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