Dr. Edward Slavko Yambrusic, International Lawyer/Consultant
Did the Croatian Pilots in the Legal Self-defense Against Serbian Aggression Commit "Grave Breaches" of the Geneva Conventions of August 12, 1949 and became "Enemies of Mankind" - “hostes humani genesis?”
The somewhat provocative title of this article is intended to alert the reader of the absurd situation, wherein Serbia, the aggressor and the source of "self-evident" evil-the supreme jus cogens crime of aggression, has invoked universal jurisdiction to prosecute and convict in its courts, pursuant to its laws, certain Croatian pilots participants in the legal self-defense against Serbian aggression, This is the crux of the matter.
To further elucidate this example of an aberration of the international public order, it is necessary to analyze and examine the nature and purpose of contemporary international criminal law jus ad bellum and jus in bello, the nature and the purpose of the universal jurisdiction, as well as, the specific relevant provisions of the Geneva Conventions..
Each war and use of force in international relations has moral implications and consequences. In other words, the fundamental question is not only whether a war crime has been committed, but even more importantly, what was the goal and purpose of the perpetrator of the crime, that is, "macro" and "micro" accountability.
Beginning with the Nuremberg Charter and the Charter of the United Nations, specifically Article 2(4), an aggressive force renders the attacking state subject to the laws of the international community. Prior to the UN Charter, war was considered as a meta legal consideration out of the realm of the positive law and within the absolute competence of the sovereign to wage war competence de guerre. The horrors of war were mitigated only by the jus in bello governing the actual conduct of hostilities.
Under the UN Charter, the legal vacuum which once existed within the limits set up by the jus in bello has now been filled by the jus ad bellum, that is, a branch of law governing the use of force in international relations. The jus ad bellum governs the issue of the legality of force in a broader sense of the causus belli. It relates both, to the responsibility of the state belligerents and to the individual responsibility of heads of state and officials for crimes committed in a "joint criminal enterprise".The legal theory of "joint criminal enterprise" provides a bridge or nexus between state's delict -wrongful act- and the direct responsibility of the individual participants in the commission of war crimes.
The underlying dichotomy of the international criminal law reflects the corresponding moral dichotomy in the nature and scope of impune conduct, requiring different penal sanctions and calibrations of norms, that is, jus cogens war crimes. "grave breaches" and serious or "simple violations" of international humanitarian law- jus in bello.
The ultimate purpose of international humanitarian law is the protection of vulnerable, that is, individuals, their properties, and the reduction of force in armed conflict by the principles of military necessity and proportionality. In essence, it makes the right to use force in international relations a meta legal consideration regressing the law of war to the pre-UN Charter period. This is the major fault line ofthe Hague ad hoc international tribunals, especially International Criminal Tribunal for the former Yugoslavia (ICTY). In its narrow jus in bello context it ignores the law of human rights, and the general principles of customary international law expressed in the Nuremberg and the UN Charter.
Although there is not much state practice to support it, popular views among legal scholars and commentators maintain that the jus in bello, or international humanitarian law, must be applied equally both with respect to the aggressor and the defended, that is, indiferrent to the nature of the force used in an international conflict, that is, legal or illegal use of force.
Conversely, there are scholars and commentators, who argue with a great deal of persuasion that the military advantage anticipated, to which any collateral damage must be in bello proportionate, cannot be artificially divorced from the underlying goals , that is, aggression or self-defense. This implies that jus in bello judgments must logically and normatively depend on ad bellum judgments. ln this context, the jus ad bellum applies not only to the initial decision to resort to force, but also, to all the conduct involving the use of force which occurs during the course of the hostilities. In order to determine the various modalities of responsibility and guilt, it is necessary to show a continuous nexus from jus ad bellum to jus in bello, that is, from the supreme war crime of aggression and war crimes committed in war. Moreover, the overall conduct of hostilities must be necessary and proportionate to the overall causus belli and not only to a particular battle,
As for Universal Jurisdiction, it is well settled under customary international law that the scope of governance or authority-civil or criminal-of one sovereign state cannot be invoked in another state as a matter of right.The principle of universal jurisdiction derogates from this fundamental principle of international law. This derogation is justified by the noble purpose of the universal jurisdiction to prosecute conduct that is "self-evidently" evil. The scope of its authoritative reach, however, extends only to "macro" accountability, that is, it should be invoked only in the jus cogens crimes under customary international law, and "grave" breaches under positive law- "lex latat' of international treaties or conventions. Jus cogens crimes offend humanity and shock the conscience of the international community. Their perpetrators, therefore, are deemed "enemies of mankind"- "hostes humani genesis".
"Grave" breaches and "serious crimes" that justifie the invocation of universal jurisdiction are embraced within the principle of jus cogens crimes, that is, there can be no derogation from them by any state. States, as members of the international community, are bound to punish, under the due process of law, individuals alleged to have committed "serious" crimes. Those who commit wanton acts of attrocities- genocide, and crimes against humanity must be brought to justice. Impunity is no longer acceptable within the overall framework of the new international public order.
Scholars and commentators have defined the principle of universal jurisdiction as a "legal principle allowing or requiring a State to bring criminal proceedings in respect of certain (serious) crimes irrespective of the location of the crime and the nationality of the perpetrator or the victim." ( Kenneth C. Randal, "Universal Jurisdiction Under International Law" Texas Law Review, No. 66, (1988) pp 785-788) The rationale behind it is based on the notion that certain crimes are so evil and fundamentally grave or serious that they affect the fundamental interests of the international community as a whole..ln essence, universal jurisdiction "allows for the trial of international crimes by anybody, anywhere in the world." (Mary Robinson, THE PRINCETON PRINCIPLES OF UNIVERSAL JURISDICTION, Princeton University Press, (2001) p. 16.
Basically, there are four necessary steps to get the principle of universal jurisdiction applicable. (l)" the existence of a specific ground for universal jurisdiction, (2) a sufficiently clear definition of the offence, (3) an enumeration of the constitutive elements (of the crime), and (4) national means of enforcement allowing the national judiciary to exercise its jurisdiction over the crimes".(Xavier Phillipe, "The principles of universal jurisdiction and complementarity; how do the two principles intermesh?" International Review of the Red Cross, Vol. 68, No. 862,(2006) p.379.
To date, international jurisprudence has failed to give us a precedent with a clear definition of universal jurisdiction. There are two landmark cases. In Lotus, universal jurisdiction is a meta legal consideration" "there is no recognition under international law of universal jurisdiction. (E)very State remains free to adopt the principles which it regards as best and most suitable:(PCIJ), Series A, No. 10, p. 19. In a more recent case before the International Coun of Justice, Arrest Warrant (Kongo v. Belgium) ICJ 14 February 2002, the majority of the Court refrained in dealing with the issue of universal jurisdiction. It merely assumed that Belgium had jurisdiction over the Foreign Minister of Kongo. Conversely, seperate and dissenting opinions laid out a plethora of opinions on the meaning of universal jurisdiction, each reflecting the background, intellectual discernment, and subjective tendencies of the judges.
Thus, for example, judge Ranjeva in his "Declaration" does not recognize the universal and/or absolute nature of the universal jurisdiction. "Enforcement of jurisdiction can take a form of a state acting within the borders of another state in order to enforce its laws. (However} (t)he general rule of international law is that any such action requires consent by the other state.States have full competence to prescribe and enforce their laws only within their own territory. " (Declaration, Ranjeva, ICJ Reports (2002) pp. 54-57.
The lack of a clear meaning of universal jurisdiction is somewhat alleviated by the negative approach to its meaning, that is, what it is not. In other words, there is no linkage to the classical requirements of criminal justice, to the territoriality and nationality, that is, between the location of the crime, and the nationality of the perpetrator or the victim. Moreover, the jurisdiction mandated by the relevant international treaties and conventions is, by implication, universal jurisdiction, since there is no the territorial or nationality requirement in their enforcement. Thus, for example, the Preamble of the Statute of the International Criminal Court (ICC) contains the universal jurisdiction principle-aut dedere aut judicare- which provides: "Affirming that the most serious crimes of concern to the international community, as a whole, must not go unpunished and that the effective prosecution must be ensured by taking measures at the national level and by enforcing international cooperation." Furthermore, "(r)ecalling that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes" (Rome Statute, ICC, UNTS vol.218, No.2,) Even more conspicuous and relevant to this inquiry are the provisions in the Geneva Conventions of 12 August 1949.(75 UNTS 31.85,135, 287 (hereinafter "Geneva Conventions).
There is, however, a basic consensus on the dual nature of the universal jurisdiction, that is (a) jurisdiction to prescribe or legislate and criminalize the impune conduct, and (b) jurisdiction to enforce. The two are logically independent In practical application, however, they are intermeshed; there is a natural nexus between them. In order to enforce, state must have national legislation, which provides substantive and procedural measures and mechanism necessary for enforcement
As for Geneva Conventions, the four Conventions require that signatory countries enact appropriate legislation criminalizing the commission of "grave breaches". Moreover, "each signatory country shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality before its own courts. It may also, if it prefers, hand such persons over for trial to another signatory country, provided 7 such country has made out a prima facie case." (Convention IV, Article 146).
Specifically, Convention IV protects civilians in time of war. It states: "Grave breaches shall be those involving acts, if committed against persons or property protected by the present Convcntion: willful killings, torture, or inhuman treatment...and extensive destruction of property, not justified by military necessity, and carried out unlawfully and wantonly. (emphasis added, Article 147) In addition, Protocol I to the Conventions, expands protection to civilian population. Specifically, in article 51, it outlaws indiscriminate attacks on civilian population"."lndiscriminate attacks are those which are not directed at a specific military objective" (Article 51 (3). And, in article 85, it outlaws "making the civilian population or individual the object of the attack." lnterestingly enough. there is a caveat to these basic rules. "Civilian population shall enjoy protection, unless, and for such times, as they take direct part in hostilities.(Article 51 (2).
Geneva Conventions reflect the dualistic axiom of the"macro" and "micro" accountability of individual responsibility. "Grave breaches" presume "unlawful wanton"- "self-evident"- evil conduct. In other words, Geneva Conventions make the essential distinction between "grave breaches" -genocide, torture, and crimes against humanity- and those "micro" "simple" offenses, that is, "all other acts" in violation of the Conventions
Here, it is important to underscore that the responsibility for enforcement of such "all other acts" is different from the enforcement of "grave breaches" The scope of accountability and the non-border reach of universal jurisdiction, within the framework of the Geneva Conventions, will lie only with respect to "grave breaches". As for "micro" "all other acts" or "non-grave" breaches in violations of the Geneva Conventions and the Protocols thereto, state practice has shown that most states, that is, the majority of the members of the United Nations, consider themselves not to be bound by the obligations under the Geneva Conventions and Additional Protocols. This is in line with the contemporary tendencies of the general international law, reflected in the "facts of law" of the international community, to tolerate more "collateral damage" if the alleged causus belli is either (a) broadly perceived as a clear case of self-defense, and (2) formally illegal, but still perceived as legitimate, in the sense that furthers broadly shared international values of preserving peace and security or stopping and/or preventing attrocities, that is, humanitarian intervention. (e.g. NATO bombing Serbia to stop genocide in Kosovo.)(See, Jesse Medlong. "All Other Breaches: State Practice and Geneva Conventions' Nebulous Class of Less Discussed Prohibitions", 34 Michigan Journal of International Law, 829 (2013) at 831, 834.
In line with this rationale, the responsibility for enforcement of offenses committed in a legal self-defense are first, and foremost, within the discretion of the defending state. In other words, universal jurisdiction does not apply to such "non-grave breaches" in violation of the Geneva Conventions and Additional Protocols. Perhaps, this fundamental dichotomy between legal and illegal use of force, and different levels of individual accountability and/or responsibility has, best, been summed up by a prominent American lawyer, Harvard law professor, Alan Dershowitz: "The failure to understand this fundamental difference between deliberately targeting civilians (in the course of an aggression) and accidentally killings of civilians in the course of self-defense reflects moral obtuseness at best and outright bigotry at worst." (Alan Dershowitz, THE CASE FOR ISRAEL, (2003) p.92.
In view of the foregoing, I, respectfully, submit that:
• Serbia has no legal ground to invoke universal jurisdiction, in general, and universal jurisdiction in absentia, in particular.
• Even assuming arguendo, that Serbia could invoke universal jurisdiction to prosecute Croatian pilots, it has failed to make out a primafacie case that the alleged attack on a moving convoy (target) by the Croatian pilots- Borovic, Raduje, Mikac, and Jelenic-in the course of the military-police "Operation Storm, "was a "direct", "willful," "wanton, "and "indiscriminate" attack on Serbian civilians, since (a) the civilians were deliberately intermeshed with the military personnel, and military equipment tanks,trucks,e.t.c.-serving as a "protective shield" and camouflage assisting the military in achieving its military objective; as such, (b) the civilians assumed the risk, and, under such circumstances, (c) the civilians could, objectively, be viewed as "combatants", especially, considering the overall make up of the rebel forces, and (d) under such circumstances, the civilians could not be viewed, and, indeed, they were not the "object" of the attack by the Croatian pilots.
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