Illegal Use of Armed Forces

INTRODUCTION

International Criminal Court is a gift of hope to future generations and a giant step forward in the march towards universal human rights and the rule of law. - Kofi Anna[1]

To maintain international peace and security, it was of utmost importance that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation with the further focus on the Purposes and Principles of the Charter of the United Nations, and in particular the principle that all States shall refrain from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations (“UN”).

The furtherance of above stated affirmations indicates on the requirement of having a body that has power to prosecute serious crimes against international law and humanity with no consideration to the aspect that who committed them; it must concern it to try people for gross violations of human rights, such as those committed during military conflicts or in instances of illegal use of armed forces. After the establishment of International Criminal Court (“ICC”) through the enactment of Rome Statute, it was felt that long pending requirement of International Community has been realized, at last.[2]

But deplorably, “the supreme international crime” i.e. Crime of Aggression[3] has been kept out of prosecutable and punishable power of ICC because the Rome Statute which regulates ICC does not contain the definition of Aggression. Recently, in Kampala Conference, definition of aggression was agreed upon but ironically implementation of the same is postponed till 1917. This scenario questions the very purpose of Rome Statute and most importantly asks,

“Can in the whole spirit of Rome Statute, ICC has the power to deal with the supreme international crime or it simply has to wait till 2017, to be more effective and fulfill its purpose in actual sense?”

Answer of these questions lie in the purpose of establishment of ICC which emphasis that the basic purpose of establishment of ICC is to ensure that all persons who knowingly allow illegal use of armed force cannot be allowed to immune from the prosecution. In light of this purpose, the author firmly believes in the spirit of Rome Statute, ICC can very well deal with supreme international crime because much of the conditions requisite for Crime of Aggression vis-à-vis Use of Force can very well be dealt under the ambit of Crime against Humanity as provided in Article 7 of Rome Statute[4].

ICC is an inhibiting factor for individual’s setting out to use force which is a kind of aggression.[5] We should also keep in mind that the fundamental right to life is enshrined in all human rights conventions and for the purpose of maintaining International Peace and Security; the important obsession is prosecutionfor the crime and not the title of crime under which you have to prosecute.

Simultaneously, we also need to understand that the very basic goal is to deter the unlawful use of armed force that kills or injures countless innocent men, women and children. Deterring use of force should not depend on catalog. Any sort of life loss caused by use of any manner is a Crime against humanity and should be punished. Author firmly supports the viewpoint of Benjamin Ferencz, who says[6]:

“The illegal use of armed force is the soil from which all human rights violations grow. It must be condemned as a crime against humanity.”

The present essay is an attempt to analyze the whole situation in light of questions presented with special focus on understanding and scrutinizing the definition and conditions which can give jurisdiction to ICC to prosecute those Individual’s who are responsible for illegal use of force in the present spirit of Statute. Before that, it is very important to know the current position of International Law on use of force outside the spirit of Rome Statute and the same has been discussed in the following part.

INTERNATIONAL LAW AND THE USE OF FORCE

In International law the notion of ‘use of force’ has always been concerned with the relationship between states. The two aspects, one is individuals and the other is use of force by state against its own individuals has never found any requisite importance in such an important notion of International law. It is to be of surprise for many jurists that individual’s responsibility for the illegal use of force and harm committed because of it generally goes without prosecution and punishment.

As of know, the use of force is prohibited and the prohibition is enshrined in the UN Charter and even considered as a customary principle of the International Law. Article 2(4) of the UN Charter provides that[7]

‘All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations’

This article is considered to be jus cogens[8] principle of international law, in that, no state has the right to depart from the rule prohibiting the use of force.[9] This prohibition has to be seen in light of General Purposes of UN Charter and also in the background of characteristics of a Sovereign State. The principle of sovereign equality in itself puts all the states at par with each other and therefore also one state cannot commit an act of aggression against the other. The prohibition imbibed is not limited to member states only, by virtue of Article 2(6) of UN Charter[10], it extends even to non-member states also. Even, in the case of Nicaragua v. United States[11], it has been held that the prohibition against use of force has become permanent norm and there is no derogation possible and therefore, in no circumstances will the unilateral use of force by state be permissible unless it is expressly provided for in the UN Charter.

The derogation from this principle in the name of Anticipatory Self Defense (Oppenheim and Antonio Cassesse, Jurist of International Law, recommended for limited use of this defense) and Presumptive Self Defense (Given by George W Bush, was not accepted as a reason of US attack on Iraq) have been widely debated in the arena of International Law but no definite conclusion was arrived at. Now, derogation from the norm has become factual and point that any endeavor to modify established principle must satisfy the elements of state practice and opinio juris before it can be applied to international customary law is emphasized.  Here, it is important to mention that, Robin Cook, the secretary of state for foreign and commonwealth affairs of the UK in 2002 has justified use of force as a last mean of restoration of International peace and security. 

At present, the only two recognized situations in which force can be used against states are:

a. Under a United Nations Security Council (UNSC) resolution under Article 42[12] for the purpose of giving effect to its decisions and use of force as may be necessary to maintain or restore international peace and security.

b. In Self Defense under Article 51[13]: The right to self-defense is an essential attribution of sovereignty of state and it exists in the state by virtue of the fact that the state exists. Therefore, it may not be conferred. The purpose of Article 51 is to merely acknowledge and regulate the existence of this right.

Apart from these two recognized grounds, in all cases where force has been used and in future, will be used without any legal justification, the person responsible for the use of force should be prosecuted and punished by the ICC. Here observation made by Reisman[14] is of great relevant who said:

Use of force cannot be allowed to a despotic ruler as a shield to continue to commit gross violation of human rights.[15]

This observation indicates the important of punishment for illegal use of force to protect human rights and rule of law for all but here, the first thing to be focused is actual meaning of illegal use of armed forces. Here, it is equally important to know the relation of Use of Force with Crime of Aggression. The following part briefs about the same. 

CRIME OF AGGRESSION VIS-À-VIS ILLEGAL USE OF ARMED FORE

After decades of wrangling by UN committees, definition of aggression was finally agreed by UN on 14 December, 1974 through its Resolution No. 3314.[16] In the Preamble to the Definition of Aggression, the General Assembly expressed the view that ‘aggression is the most serious and dangerous form of the illegal use of force’.[17] In defining what this most dangerous form of illegal force is, the General Assembly incorporated two approaches:

Firstly, General Approach where one single definition of act of aggression in the form of single descriptive formula has been provided under Article 1 which says that Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.[18]

Secondly, Enumerative Approach where a list of acts of aggression though not exhaustive has been provided under Article 3 of the Resolution wherein the various individual instances of aggression has been enumerated.[19] These instances include:

a. The invasion or attack by the armed forces,

b. Military occupation,

c. Bombardment,

d. Blockade of ports etc.

The definition discussed in the Kampala Conference further clarify the term ‘Crime of Aggression as Article 8 bis, Article 8bis (1) defined it as, 

The planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the UN.[20] Further Article 8bis (2)then defines ‘act of aggression’ as referred to in Article 1 of the resolution. It also contains the list of individual instances as enumerated in Article 3 of the Resolution.[21]

The above two fold approach necessitate the use of force as an important requisite of Crime of Aggression but simultaneously, this approach enumerates the possible legal consequences of the use of force i.e. loss of lives which is a violation of very fundamental right of a human being. Moreover, the enumeration of individual instances is very useful to consider the conditions under which ICC can prosecute illegal use of force in the spirit of Rome Statute under the provision of Crime against humanity.

These conditions has been explained in detail, in the following sub-part in light of pre-requisites of Crime against Humanity as provided in the Article 7 of Rome Statute, 1998.

Crime against Humanity vis-à-vis Use of Force: Prosecutable Conditions

Until now, when powerful men committed crimes against humanity, they knew that as long as they remained powerful no earthly court could judge them. - Kofi Anna

One of the crime for which ICC has the jurisdiction is Crime against Humanity. This crime has been defined under Article 7 of the Rome Statute. To bring a successful charge of this crime, the following five general elements are required to be proved[22]:

(i) There must have been an attack;

(ii) The attack must have been directed against a civilian population;

(iii) The acts of the perpetrator must have been part of the attack that was directed against a civilian population;

(iv) The attack of which the perpetrator’s act formed a part must, in turn,  been  part  of  a  widespread  or  systematic pattern of attacks; and

(v) The perpetrator must have been aware that his or her acts constituted part of the widespread or systematic attack.

Requirement of Attack

Generally, an attack would entail violence against the victims so this element has usual presence in all those instances where armed force has been used. With respect to the notion of singularity or plurality of attack, it is to keep in mind that multiplicity of victims affected rather than the number of acts is an important consideration to bring a successful charge.[23]

Directed Against Civilian Population

While explaining the second element, the expression ‘directed against’ is considered as an expression which ‘specifies that in the context of a crime against humanity the civilian population is the primary target of the attack’. In order to determine whether the attack may be said to have been so directed, the court will consider, inter alia[24],

a.The means and method used in the course of the attack,

b. The status of the victims,

c. Their number,

d. The discriminatory nature of the attack,

e. The nature of the crimes committed in its course,

f. The resistance to the assailants at the time and the extent to which the attacking force may be said to have complied or attempted  to comply with the precautionary requirements of the laws of war etc.

In the The Prosecutor v. Fofana and Kondewa (CDF Case)[25], undue importance to the word ‘primary’ by Trial Chamber may have resulted into miscarriage of justice if appeal chamber would not reversed the order. The pre-occupation with the word primary is not appropriate interpretation to further the very purpose of Rome Statute. Moreover, we need to keep in mind the cardinal principle of International Law that is the protection of the civilian population and civilian objects is of utmost priority as held in the Nuclear Weapons Case[26] and loss of civilian population in the instances of use of force is against this cardinal principle of law.

Moving further, the term ‘civilian population’ is identified as particular national, ethical, political and regional group[27] and use of force in each instance ultimately has its impact on population of certain specified territory of the state where the use of force has been carried. So this particular proposition of attack on civilian population is manifest in every instance of use of force because in every such instanceultimate and prime bearer (physical or mental harm) will be population of the state where such instance takes place.

Interpretation of word ‘Primary’

Here, it is a humble submission that in instances of use of force, the primary object may be different but prime target always remains a civilian population of the country. Such instances which ultimately affect the people of the country and act against international peace and security should not be absolved because of narrower interpretation of the provision. The prosecution of offenders of such crimes should be in spirit of Rome Statute as whole. The question of incidental attack, target and loss deviate the very spirit of the Statute.

Widespread and Systematic Attack

It is very important to have a look at the term ‘widespread or a systematic attack’ which is considered to be an important term to distinct between personal and publically harmful crimes.[28] Presence of this term ensures international scrutiny of a crime because any widespread or systematic attacks create danger for international peace and security. In lieu of this submission, illegal use of force always creates ruckus in the civilian population of the state which ultimately leads to danger to international stillness and safety. Moreover, use of modern means of warfare by armed forces always planned with systematic attack and always contains widespread attack on the population of concern state.

Apart from all these, requirement of guilty mind is considered as an important requisite to be proved for the punishment under Crime against humanity. Article 7, Rome Statute emphasizes upon the requisite condition of knowledge of the attack on the part of individual responsible for the attack. But the author believes, such offences are offences of absolute liability where knowledge on the part of offender his implied and merely failure on the part of prosecution to prove direct knowledge cannot daunt the punishment of the offender.  

Requisite of Guilty Mind- Knowledge

Knowledge is to know a thing, is to have the mental cognition of it.[29] It is a state of mind entertained by a person with regard to the existing facts which he has himself observed or the existence of which has been communicated to him by persons whose veracity he has no reason to doubt. In the instances of use of force, having knowledge of the consequences is a manifested aspect because of the purpose, target and means involved in the commission of Crime.

Looking from the other aspect, in Criminal jurisprudence, Mens Rea along with Actus rea is considered as an essential element or ingredient of a crime, although this proposition is a universally accepted principle but the same has certain limitations. There are many crimes which do not require mens rea to be proved in respect of at least one element of actus reus. These are known as strict liability/absolute liability offences. Here the prosecution is relieved of the duty of proving mens res in relation to actus reus. In many cases of state criminal jurisprudence the legislature has dispensed with mens rea and has accepted principles of strict responsibility where liability of criminal is specified into following two parts:

a. Vicarious responsibility; crimes requiring mens rea on the part of someone but not on the accused.

b. Strict responsibility; Absolute prohibitions- those not requiring fault on the part of any one.

The illegal use of armed forces should be categorized in the second category. Having this approach in mind, prove of guilty mind in each case is not a pre-requisite for the prosecution to ensure punishment of the person responsible for the crime.

At last, in the case of crimes against humanity, the provisions of Article 7, Rome Statute omit any deliberate link to armed conflict.[30] Although the article contains a lot of words such as murder, sexual crimes, apartheid or enforced disappearance etc. along with the residuary clause that includes other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.[31] Such wide provision has everything in itself to incorporate the prosecution and punishment for those who illegally use force and endangers international peace and security.

Specific Prosecutable Conditions

Below is the enumeration of certain conditions which are result of illegal use of armed forces in light of interpretation of Crime against humanity discussed above for the purpose and prosecution in the ICC.

1) Violation of Right to Life:

The killing of human being has been strongly condemned by all religions and philosophies. In the Criminal Jurisprudence, killing somebody is a Murder which is even prosecutable under Rome Statute, Art. 7 (1) (a).  Even the International humanitarian law (IHL) has sought to uphold this most sacred of rights in a number of treaties[32] with special emphasis that right to life is non-derivable.[33] The life of an individual is clearly protected from being arbitrarily taken. This right has its applicability even during all armed conflicts alongside other basic rights. In lieu of this, in any instance of use of force which leads to killing of people and loss of human life, without falling under any established exception, has to be treated within the ambit of Crime against Humanity in the following situations:

1.1.When mass destruction means are used

At present, use of force is a danger not only for warriors but for the humankind as whole. The modern means of warfare with the optimum use of chemical, biological and nuclear weapons are directly impacting upon the whole human civilization. In brief, right to life as it has been progressively developed in the International Law, includes the protection against the use of weapons of mass destruction.[34] Today, the difference between military and civilian population and objects has been completely diminished.  This all resulting into loss of lives of many innocent peoples in every instance whenever force is used but irony is the individuals responsible for such use of force is not being prosecuted because of the simple arguments by earthly powerful people that such innocent people were not the primary target and secondly, such acts are more of act of aggression which is not punishable in the ICC. Such an approach needs a new approach by inclusion of such crimes in the ambit of crime against humanity in lieu of above discussion.

While using these means, preparatory is very clear that his act will surely kill civilian population/national population; such means are direct encroachment upon right to life of a population so such encroachment whenever is committed should be covered under the ambit of Crime against Humanity.  

1.2.When Violation of some Ancillary Rights take place

The right to life has very close association with right to peace, right to safe and healthy environment and right to development. Any attack by modern warfare means ultimately result into widespread legal consequences on the civilian population of the country. Use of modern warfare means can never be incidental, they are always systematic because of the technique and cost involved in the warfare means. To protect these very rights properly, a strong punishment for those who violate or even attempt to violate these rights without any lawful justification should be imposed and specially in those cases where the violation is the net result of use of force, the individuals responsible for such use of force should be prosecuted and punished before ICC in lieu of Crime in the spirit of Rome Statute.

1.3 Act of State Authority against its own citizen

Coming to state domain, when we see their jurisprudence/case-laws upon the right to life than common thread in all of such jurisprudence enumerates the distinction between planning of police operation and actual use of force by police officers.[35]  This distinction highlights the point that in number of instances, use of force by state authorities against its own person is ultimately an attack on its person and lead to loss of many lives. In such instances, there is no necessity to put human life at risk because every person is aware that the opposite party poses no threat to life or limb and even is not suspected of having committed a violent offence but in the present tendency of vote bank politics in the developing countries to please certain ethnic or religious groups, leaders don’t mind to put their own people at risk, tendencies of such attacks in the form of riots are alarmingly increasing. To control this, prosecution in some instances is must to deter any threat to international peace. Such large scale riots or killing of people in riots should be beyond domestic jurisprudence and whenever and wherever such riots take place, the individuals responsible should be prosecuted before ICC because protection of human rights is cardinal principle of international law.   

2) Violation of Right to Self Determination:

Self-determination is defined as free preference of one’s own acts without any compulsion. It is also referred as the ability or power to make decisions for one. In essence, this aspect embodies the right for all peoples to determine their own economic, social and cultural development. Even the International Court of Justice endorsed this right and defined it as: 

“The need to pay regard to the freely expressed will of peoples.”[36] 

The right of self-determination of peoples is a fundamental right in international law. It is embodied in number of international charters and covenants.[37] Common Article 1, paragraph 1 of these Covenants provides that:

“All peoples have the rights of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.” 

The right of self-determination has also been recognized in other international and regional human rights instruments.[38] This concept of self-determination is a very powerful one. As Wolfgang Danspeckgruber[39] put it:

“No other concept is as powerful, visceral, emotional, unruly, as steep in creating aspirations and hopes as self-determination.”[40]

An attempt to violate this right evokes emotions, expectations and fears which often lead to conflict and bloodshed. Such an attempt usually being made with the use of force so any instance where people’s right to self determination is played with, should be considered as Crime against humanity because it fulfills all the criteria’s’ requisite for punishment for Crime against humanity as enumerated in the beginning of this chapter and more importantly, such attempts ultimately leads to disturbance of international peace and security and all individuals responsible for such attempts should be prosecuted and punished.

3) Violation of Other Human Right:

Apart from above rights, there are many other instances of human rights violations which are net result of use of force and cause many physical and mental agony to the civilian population of the state. The list of such violations is too long to enumerate but the important point which needs focus of international community is violation of any sort of human rights as declared in the Declaration of Universal Human Rights, 1948 or otherwise accepted as cardinal principles of International Law, with the use of force fulfills all requisite for Crime against humanity, so whenever such instances take place, they should be prosecuted and punishable before ICC.

In line of present essay entry, it is important to discuss some trending means of use of force other than the existing one which results into Crime against Humanity. A brief about such means is as below:

1. Use of Trained Mercenaries

Mercenaries are refers to a mean of hiring individuals or groups of individuals by a particular state, entity or some individual to serve in a combat role for private gain.[41] They are hired to use force to fulfill specific purposes while primarily targeting civilians of the country. Such hiring has been condemned internationally. But despite growing condemnation, mercenaries continue to exist in many different forms and are involved in diverse activities especially in use of force to commit crime against humanity. In 1987 the United Nations Commission on Human Rights appointed Special Rapporteur Enrique Bernales Ballesteros of Peru to analyze, monitor, and report on all forms of mercenarism. On 4 December 1989, International Convention against the Recruitment, Use, Financing and Training of Mercenaries was also adopted[42] which failed to deter use of mercenaries. In light of this, punishment by ICC for those who are responsible for using these means can yield deterrence effect globally.

2. Cyber Network Attacks

In the modern period, the world dependence on computers and the networks that connect them, such as the Internet, has increased immeasurably. This dependency increased the use of computer networks for the purpose of military command and control, use of force and many other such positive or negative diverse activities.[43] Use of these computer networks as new form of warfare is at increase. One of the approaches of this warfare includes informatics operation, spreading of adversary information in a systematic manner to cause mental agony to the population of particular nation is becoming usual mean of e-force to create the conditions of bloodshed, riots etc. Uses of such means are more dangerous and harmful than the traditional means of use of force.

Even use of logic bombs, transmission of virus and hacking of sites with attack on complex national infrastructure leads to distress and suffering to the civilian population which ultimately result into bitter Crime against Humanity.

A person responsible for use of e-force should be prosecuted before ICC because in all those cases where use of such mean disturbs international peace and security to deter such unavoidable and probable attacks.

CONCLUSION

After submitting the content part, I would like to conclude by saying that new approach in the form of purposive interpretation should run throughout the interpretation of the provision related to Crime against Humanity in light of spirit of Rome Statute. Till the time apparent inclusion of above conditions does not take practical form, the liberal interpretation of existing provisions by ICC should be used to ensure prosecution and punishment of those who are responsible for heinous international crimes.

We should always keep in mind that ICC is established for some important purpose and that purpose is to maintain International peace and security. A mere lack of political determination to expand its power of prosecution should not in any way prevent ICC in fulfilling its purpose of creation.

And most importantly, in about all the conditions or instances of acts that constitute illegal use of armed force as disused in detail above are prosecutable and punishable in the spirit of Rome Statute.