Codify A New Crime Which Would Declare That A War Crime Can Also Consist Of Recklessly Attacking Civilians
By Zunaira Inam Khan
January 21,
2021
The recent
news of the Australian troops perpetrating alleged war crimes on civilians and
combatants within Afghanistan sparked major outrage and uproar all over the
world.
Australia
has been part of the US-led military coalition in Afghanistan since 2001. It is
also a state party to the Rome Statute since 2002. As such, it is bound by the
International Humanitarian Law (IHL). The principle of complementarity in
Article 17 of the Rome Statute specifies that the International Criminal Court
(ICC) “will only exercise its jurisdiction if a state fails to genuinely
investigate and prosecute a situation in which crimes against international
humanitarian law have been committed.” Essentially, it implies that until and
unless Australia is unable or unwilling to prosecute, the jurisdiction remains
with the state in question.
This
horrifying report has reasserted the reality of the gross injustices, torture
and killings that are occurring in all conflict zones, including Afghanistan.
It also sheds light on the miscarriage of justice within the international
system where in certain circumstances the ICC does not have jurisdiction, it
cannot force compliance by states and sometimes the crime cannot be proven due
to the limited scope of the Rome Statute.
It cannot
be denied that the ICC is a remarkable innovation and demonstrated the
willingness of countries to have amicable relations. However, the foundation of
the ICC is the Rome Statute and a few provisions within the Rome Statute can be
viewed as retrogressive. Certain provisions of the statute lead to
uncertainties. The issue arises specifically in cases of war crimes due to the
omission of recklessness as sufficient mens rea under this article. It would
seem that recklessness should be enough to demonstrate criminal responsibility.
Undoubtedly,
in cases of genocide or crimes against humanity, recklessness would fail to be
sufficient mens rea due to the severity of these crimes, which could not have
been committed without intent and knowledge. However, in crimes of lesser
severity, which include war crimes, it stands to reason that recklessness be
included within the Article. Hypothetically, a person could bombard a town
without taking into consideration the high civilian casualty risk. This person
could then be acquitted by the ICC on the basis that they acted recklessly but
did not have intent to kill the civilians. This provides an undue level of
flexibility to the military to operate. This issue with the statute can be
illustrated with the example of the Kunduz Hospital bombing in Afghanistan.
The bombing
of a hospital in Kunduz, Afghanistan on the 3rd of October in 2015 killed 42
people. The US military held an inquiry and declared that 16 of the military
personnel involved would be ‘disciplined’. Furthermore, they announced that,
since the violations were not committed with an ‘intent’, the military
personnel would not be charged with criminal charges. This presents the
question: can recklessness be sufficient to prove war crimes? It also
highlights the limit of international criminal law in its ability to provide
justice to the victims of the horrendous results of conflict and war.
There are
two precise definitions of war crimes in the Rome Statute that are relevant to
this discussion: The first provision addresses violations of the principle of
distinction, which is regarding the intentional killing of civilians. The second
provision addresses the principle of proportionality. The first war crime is a
violation of the principle of distinction: intentionally killing civilians. The
second war crime is a violation of the principle of proportionality: causing
disproportionate collateral damage.
If we apply
the first definition of war crimes from the Rome Statute to the Kunduz bombing,
the issue is that the attack was not intentionally directed against the
civilian population. What really complicates matters, however, is that the word
‘intentionally’ is mostly understood in common law countries as the same as
purpose or knowledge, based on the circumstances. However, in certain cases,
criminal lawyers trained in civil law jurisdictions tend to give the phrase
‘intentionally’ a broader definition. This definition would not only encompass
‘purpose and knowledge’ but also include recklessness.
In the case
of the Kunduz bombing, what would be the difference if the standard of
recklessness was applied to the case? Could the US military personnel be
prosecuted for an intentional attack against civilians, in the case that
‘intentional’ includes mental states such as recklessness. The bombing of the
hospital that led to the deaths of 42 individuals would definitely be a strong
case for recklessness; however, it cannot be the only factor to consider. The
prosecutors will have to take into consideration the level of information
available to the soldiers, their motivations, the structure of decision-making,
the chain of command, the perceived threat, and the level of control the
soldiers actually had over the situation.
Recklessness
cannot be under-inclusive as it will not have credibility in the view of the
victims. However, it can also not be over-inclusive as it will be considered
illegal by the soldiers, which is the main group that International Criminal
Law tries to control.
The issue
with equating intent with recklessness is that any case of collateral damage
would be considered a violation of the principle of distinction. This is due to
the fact that in the case of collateral damage, civilians are killed with full
knowledge that they will die due to the actions of the attacker. However, this
is allowed as far as the collateral damage inflicted is not disproportionate
and the attack was intended for a legitimate military target. This would be an
issue as the attacker in any hypothetical situation would be aware and have
knowledge that civilians will be killed during the attack.
Essentially,
all cases of disproportionate collateral damage would automatically be
considered as violating the principle of distinction without putting the onus
of proof on the prosecutor. This would also be a careless way to handle such
sensitive cases.
The best
option would be to codify a new crime which would declare that a war crime can
also consist of recklessly attacking civilians. The word ‘recklessly’ should be
used explicitly as opposed to ‘intentionally’. This would hold military
personnel up to a higher standard and they could be prosecuted for choosing or
being unable to live up to it. The creation of a new war crime would also
demonstrate that there is a clear difference in the morality of killing
civilians intentionally or killing them recklessly.
As the law
stands now, was this a war crime? Unfortunately, no. The issue being that the
killing was not intentional, it was accidental. Considering this with the lens
of criminal law, it was reckless and even negligent but there was no intention
or purpose. This does highlight the grim reality that even though IHL is
offering protection to civilians, it still allows for them to be killed.
The Kunduz
hospital bombing never went to trial in the ICC and had it even been subject to
the ICC jurisdiction, it would not have been deemed a war crime. This was due
to the fact that there was no intent to kill civilians; it serves as a stark
reminder of the limitation that exists within international criminal law.
There are
uncountable horrors and realities of war that will fail to be addressed by the
statute of the ICC. Furthermore, IHL actually allows civilian casualties in
certain situations, as long as the laws of proportionality are kept in
consideration. Hence, it is almost certain that civilians will be killed,
maimed or will suffer immense losses of lives and property due to the ravages
of war and, sadly, in most cases, no crime will ever be proven or charged.
Additionally, any investigation by the ICC faces severe challenges, even before
we include the issues or loopholes within the provisions of the statute. The ICC
does not have a police force. Hence, it relies on the member states to
cooperate with the court during investigations.
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Zunaira Inam Khan is an associate research
analyst at the Institute of Regional Studies.
Original Headline: The recklessness of war
crimes
Source: The News International, Pakistan