Joint Series: Application of IHL by National Courts

Editors Note from Bobby Chesney: Throughout the month of September, a group of blogs including Lawfare, InterCross (the blog of the ICRC), and EJIL:Talk! (the blog of the European Journal of International Law) will be running a series of posts following up on this summer’s 3nd Annual Tansatlantic Dialogue on International Law and Armed Conflict, which took place in Oxford this past July. Today, Professor Jeff Kahn (Southern Methodist University) addresses the role of national courts in interpreting and applying IHL.

The use of national courts to enforce IHL is a recurring historical theme, although not always a theme of successful enforcement. After World War I, Germany insisted on prosecuting its own alleged war criminals in its own courts. This resulted in low rates of conviction and modest punishments. This minimalism encouraged use of international military tribunals after World War II. Still, national courts were far from displaced: the Allied nations prosecuted lower-ranking defendants in national courts they set up in Occupied Germany, in many respects continuing the role played by national courts presiding over cases of offenders and victims, nationals and foreigners, throughout the war.

States Parties to the Geneva Conventions agree to “provide effective penal sanctions” for grave breaches to the Conventions. The ICRC reminds us that “the criminal repression of serious violations of IHL remains primarily the responsibility of States,” in particular “war crimes allegedly committed by their nationals or armed forces, or on their territory.”

Success varies. This post (abbreviated from a fuller treatment at the Oxford Workshop) presents two curious examples, from the United States and the Russian Federation, of occasional avoidance of IHL in their courts.

Consider first the United States, which uses its Uniform Code of Military Justice to satisfy its obligation to punish grave breaches, at least with regard to military personnel and others subject to UCMJ jurisdiction. Title 18 of the U.S. Code also satisfies this obligation as a source of penal law, in particular, through the War Crimes Act. These statutes and others dictate different judicial forums: civilian federal courts (for persons subject to their jurisdiction), courts-martial (for members of the armed forces), military commissions (for non-U.S., enemy belligerents captured abroad). The so-called “Warsame model” presents a hybrid approach.

But no convictions exist under the War Crimes Act. The new U.S. DoD Law of War Manual (§ 18.19.2) continues the policy stated in the 1956 Army Field Manual (§ 507(b)) only to label as “war crimes” those offenses “committed by enemy nationals or by persons serving the interests of the enemy State.” Such people “are tried directly under international law without recourse to the statutes of the United States.” But the same offenses “committed by persons subject to the military law of the United States will usually constitute violations of the Uniform Code of Military Justice and, if so, will be prosecuted under that Code.” Just not as “war crimes.”

This is obviously a political decision (and it’s neither new nor distinctively American). The ICRC has identified numerous problems with such substitution approaches, mostly stemming from the incompleteness of the overlap – in substance, procedure, elements, available defenses, jurisdictional reach, and general contextual awareness – between ordinary criminal offenses and those specifically designated as IHL violations.

This is not to say that prosecution under the UCMJ necessarily falls short of the “effective penal sanctions” obligation. But what is lost in the political choice is the opportunity for transparency and openness about war crimes that may have analogues in other-named crimes. U.S. Army Staff Sergeant Robert Bales was sentenced to life imprisonment without parole for the murder of sixteen civilians, mostly women and children, but is there not a value to an official acknowledgment that his conduct was an intolerable war crime? In a sense, Bales presents an easy case, as his actions (and their prosecution under the UCMJ for murder) drew worldwide attention. Other cases of wrongful killings, disrespect for corpses, and other violations of the law of war, though investigated and prosecuted, are buried under enumerated offenses that are opaque with regard to their coincidence with war crimes.

Now consider a mirror-image case concerning the national courts of the Russian Federation. Nadia Savchenko is an officer in the Ukrainian Air Force who may have joined a volunteer force fighting in eastern Ukraine. In June 2014, she seems to have been captured by an armed group near Luhansk, although Russian authorities claim that she was arrested inside Russia “after she illegally crossed the Ukrainian-Russian border under disguise of a refugee” (a version at odds with a video of Savchenko, handcuffed and in uniform, being questioned about pro-Ukrainian forces).

By mid-July 2014, Savchenko found herself detained by a civilian court in the Russian city of Voronezh (roughly 400 km north of Luhansk). She was later brought to Moscow, where her pretrial detention was repeatedly extended. At the time of her arrest, the Russian Investigative Committee (the agency responsible for criminal investigations) described her alleged crime:

[D]uring military activity in the vicinity of Luhansk in June [2014], Savchenko joined the “Aidar” battalion. Having learned the coordinates for the location of a group of Russian journalists of the All-Russia State Television and Radio Broadcasting Company (VGTRK) and other civilians near Luhansk, she passed these coordinates to militants. After that, a mortar was fired at exactly these coordinates resulting in the death of VGTRK employees Igor Kornelyuk and Anton Voloshin.

Aleksander Drymanov, head of the Investigative Committee’s “Department for the investigation of crimes involving the use of prohibited means and methods of warfare,” provided more details: “Savchenko directed mortar fire by phone on the journalists and refugees located nearby.”

In an excellent post on EJIL: Talk!, Ilya Nuzov and Anne Quintin analyzed Savchenko’s detention under IHL, concluding that she is either (in an IAC scenario) entitled to POW status and susceptible to trial by an appropriate court for the alleged IHL violation of killing civilians, or (in a NIAC version) subject to Russian domestic criminal law.

But some curiosities remain. The Russian authorities allege acts that are distinctively martial. The investigators specialize in “crimes involving the use of prohibited means and methods of warfare.” And although the type of armed conflict is disputed, there is no disagreement about the battlefield locus delicti. Given the allegations, one might expect a charge under Article 356(1) of Russia’s Criminal Code, “Use of prohibited means and methods of conducting war.”

And yet, Savchenko is charged with aggravated murder. Her defense attorney is best known for defending political cases; recent clients include the avant-garde rock group Pussy Riot. He insists on Savchenko’s status as a “Ukrainian POW.” Maybe. But his specialty is navigating political cases through Russia’s most political courts.

Russia’s preference for charging a general crime without reference to IHL is predictable. Trial for a war crime would necessarily open the legal question of Russia’s role in this armed conflict. Russia has had less difficulty accusing Ukrainian officials of war crimes when those officials do not stand before a Russian court.

In Russia’s political choice, we see the mirror image of the U.S. preference not to charge its own soldiers with war crimes, opting instead for the (in many cases, but perhaps not all) “effective penal sanctions” afforded by prosecution under the UCMJ. Russia prefers not to charge a member of an opposing armed force with a war crime, also in the service of non-transparency, here to avoid acknowledgment of Russian involvement in an armed conflict.

Whether the Russian or American charges are “effective penal sanctions” misses a larger point that extends beyond the consequences for any particular soldier. The U.S. case foregoes what Mikhail Gorbachev would have called glasnost’ – openness – about the application of IHL in regulating the behavior of one’s own armed forces. Glasnost’ labeling war crimes for what they are can promote good order and discipline in a state’s armed forces and demonstrate the state’s commitment to fundamental IHL values.

Similarly, the Russian case avoids what Ronald Reagan fondly described under the heading “doveryai no proveryai” – trust but verify. That aspect of openness promotes reciprocal treatment by opposing forces and fosters the humanity that is necessary to encourage shorter conflicts. All these values are put at risk when states play at avoiding the application of IHL, identified as such, in their national courts.