International crimes never die
For this final international law column of 2023, and despite the rising tensions, especially in the Middle East, I wanted to end the year on an optimistic note. Indeed, we owe it to future generations to never give up, but rather to hold high the conviction that, thanks to the application of international law, we are nonetheless moving towards a better world.
At a time when the 123 member states of the International Criminal Court (ICC) are meeting in New York to decide on the budget to be allocated to the ICC’s Office of the Prosecutor in 2024, lawyers and associations of Israeli and Palestinian victims, as well as States, have addressed the ICC for the war crimes committed in Israel and Gaza, underlining the flagship role of this jurisdiction.
Can the Ria Pizza restaurant in Kramatorsk, where military officers and generals were celebrating a birthday, be considered a military target?
On the front of justice for the crimes committed in Ukraine, the non-governmental organization Truth Hounds, recipient of the 2023 Sakharov Prize, has published on its website a very detailed report on an attack by Russian forces against a popular pizzeria, Ria Pizza, in the town of Kramatorsk, on the evening of June 27, 2023. A Russian missile hit the restaurant, killing 13 people, including Ukrainian writer and activist Viktoria Amelina, and wounding many others, including several foreigners.
The day after the attack, the Russian Defense Minister issued an official statement on the attack on the pizzeria, specifying that the restaurant was a military target, since, at the time of the strike, officers and generals from the Ukrainian army’s 56th motorized infantry brigade, as well as foreign military instructors, were present on the premises. Indeed, the Truth Hounds report states that a number of soldiers were present in the basement of the restaurant for a birthday party on the day of the attack, along with many civilians. The question to be raised is of whether the pizzeria could be considered a military target.
The over 100-page report concludes that the attack on Kramatorsk was probably carried out by the Russian 8th Army’s 47th missile brigade, using an Iskander-K cruise missile that flew between nine and eighteen minutes before reaching its target. Based on their study of existing case law in international law, Truth Hounds’ lawyers concluded that the Kramatorsk pizzeria could not legitimately be considered a military target by the Russian army, notably because of the control over a given target required for it to be considered military, as well as due to the use of a ballistic missile that travelled for several minutes before striking a densely populated area inhabited by civilians. It will be instructive to see how judges, possibly outside Ukraine too, assess the nature of this attack.
Legal developments in both Ukraine and Gaza will undoubtedly continue this year, increasing in frequency over the coming months. Another case that gives cause for optimism is the simultaneous activity on several different legal fronts for a situation that has long since fallen out of the headlines – the conflict in Syria.
French justice on the front line against crimes committed in Syria
In November, a judicial source confirmed to Agence France-Presse (AFP) information from plaintiffs that four arrest warrants for complicity in crimes against humanity and war crimes had been issued by the French judiciary, notably against Syrian President Bashar al-Assad, for the chemical attacks perpetrated with sarin gas in the summer of 2013 in his own country.
While these warrants also target Maher el-Assad, the de-facto head of the Syrian Army’s elite 4th Armored Division and brother of the President, as well as two generals, it is the arrest warrant for the man dubbed “the King of the Ruins” by the press that has caused a legal bombshell. Indeed, jurisprudence holds that only the ICC can indict an acting head of state – as, for example, it did this year with the arrest warrant for Vladimir Putin. It also holds that that the immunity of a head of state would prevent a country from indicting the president of another. It will be fascinating to follow this procedure and the arguments that will be put forward by both sides on this issue fundamental for the world legal order.
Canada and the Netherlands are also at the forefront
Still in November, the International Court of Justice (ICJ), based in The Hague since 1946 and which hears disputes between states, issued a ruling on a request for provisional measures. On June 8, 2023, Canada and the Netherlands brought a case before the ICJ against the Syrian Arab Republic for alleged violations of the Convention against Torture, accompanying their application with requests for urgent provisional measures. In particular, both countries asked the Court to order Syria to take immediate steps to cease and prevent all acts which would amount to or contribute to torture or cruel, inhuman or degrading treatment.
On November 16, the ICJ judges, by 13 votes to 2, ordered the Syrian regime to take, pending the development of the case, all measures in its power to prevent any acts of torture by members of its regime or by organizations or individuals under its control, direction or influence.
The only judges to vote against this decision were Russian judge Kirill Gevorgian, Vice-President of the ICJ, and Chinese judge Xue Hanqin. Judge Gevorgian considered that the Court had no jurisdiction over the case, as Canada and the Netherlands had not previously attempted to resolve the dispute with Syria through negotiations. Judge Xue, for her part, questioned the very legitimacy of Canada and the Netherlands in this case, as these countries had no direct jurisdictional link with torture in Syria, and were acting solely, in her view, in an alleged common interest of States in ensuring compliance with the obligations of the Convention against Torture. For Judge Xue, this judicial activism on the part of certain countries, often applied in a selective and biased manner, only serves to weaken the ICJ as an institution.
These two recent and spectacular legal developments by French and international judges at the ICJ, the principal judicial body of the United Nations, come almost thirteen years after the start of the conflict in Syria. They remind us that international crimes, unlike ordinary crimes, never die or become statute-barred. They can be prosecuted for as long as the perpetrators are alive, even if all the victims are dead, as long as the evidence has been preserved.
If international law still seems ineffective today in preventing the most serious crimes, in the Middle East, Ukraine and elsewhere, it is nevertheless still used, and in an increasingly multifaceted way, to prosecute those who commit atrocities. This is even long after the fact, and even at the highest levels of government.
International justice is moving slowly in today’s world, but it is nevertheless moving forward unrelentingly, and that should be a source of hope.
The article first appeared in French on Le Temps on the 18th of December, 2023.
Photo: Kramatorsk after Russian missile strike. Wikimedia Commons.
