Focus on declaring war criminals can leave victims behind

The journey to justice in the international criminal court is long and complex, and the appeal to blame individuals can overlook victims’ diverse needs.

In the face of horrific violence, the global community is turning towards criminal prosecution as a means to supposedly deliver justice for victims of atrocities committed in Ukraine, Sudan, Israel and Gaza.

While bringing an immediate end to the violence remains the most urgent priority, the international community is also grappling with how to handle the step that comes after — recognising victims’ right to justice.

Increasingly, contemporary international law has framed ‘justice’ as being primarily delivered through criminal prosecutions, either at a domestic level or before an international tribunal such as the International Criminal Court (ICC).

For example, in 2022 the ICC’s Office of the Prosecutor began investigations into crimes associated with Russia’s invasion of Ukraine, and, in 2023, the European Union established a transnational body to gather evidence for any future prosecutions of the crime of aggression.

The crime of aggression is committed when a leader of a country plans, prepares, initiates or executes an act of aggression by one country against another, and the work of the EU marks the first time active investigations into the crime of aggression are taking place while the armed conflict is ongoing.

Sudan has been part of the ICC’s mandate since 2005, and, in January 2024, ICC Chief Prosecutor Karim Khan announced he has opened investigations into the renewed conflict.

Although a ‘preliminary examination’ of the situation in Palestine has been open since 2015, it took until 2021 for hurdles around jurisdiction to be cleared. In May 2024, Khan declared his intent to seek arrest warrants for three senior members of Hamas, as well as the Israeli Prime Minister Benjamin Netanyahu and Minister of Defence Yoav Gallant.

This emphasis on prosecutions is understandable — when people see invasion and killings at such a scale, there’s a want to find and hold accountable the people most responsible for it. But doing so through channels like the ICC risks over-simplifying and even undermining victims’ rights to remedies, truth and justice.

International criminal investigations are extremely complex and case preparation can take a long time. Investigators also rely on the cooperation of states to assist in accessing evidence and surrendering suspects.

This is not always forthcoming. In the Palestinian case, the ICC is facing not only a lack of cooperation but firm opposition to its investigations from Israel and some of its most powerful allies (such as the United States).

In the meantime, applying criminal law protections such as the presumption of innocence to states can run counter to victims’ rights and interests. As legal scholars Natasa Mavronicola and Mattia Pinto argue, relying on criminal investigations means that powerful actors engaging in widespread atrocities are given the ‘benefit of the doubt’ until alleged crimes are proven to criminal standards.

Unexecuted arrest warrants, lengthy investigations and obstructed proceedings all risk justice delayed becoming justice denied. This becomes more pronounced in cases such as Palestine, where victims have lived through generations of violence.

The experiences of previous international criminal tribunals emphasise this point — former Yugoslav president Slobodan Milosevic dying in 2006 while on trial in The Hague denied his victims the closure of a verdict.

In Cambodia, the lengthy proceedings and delays in pursuing prosecutions at the Khmer Rouge Tribunal meant two accused war criminals died before they could be put on trial, and many victims passed away before they were able to benefit from the reparations delivered along with the Tribunal’s judgments.

Former UN Special Rapporteur Philip Alston has argued that focusing on criminal prosecutions also inevitably means focusing on individual perpetration. While criminal accountability can certainly matter to victims, individualising atrocity crimes can create de-contextualised versions about the ‘truth’ of what happened, overlooking the ‘banality of evil’ that enables atrocities to take place.

Shifting the focus from state responsibility to individual liability can also problematically curtail calls for more substantial forms of redress and repair.

Victims of violations under international law have rights, enshrined by the UN in 2005. The code outlines what victims are entitled to, including dignified and humane treatment, equal and effective access to justice, adequate, effective and prompt reparation for harm suffered, and access to relevant information concerning violations and reparation mechanisms.

That same year, the UN also produced updated Principles to Combat Impunity. These require states to combat impunity for human rights violations and acknowledge victims’ right to know the truth about what happened.

While the ICC, for example, allows victims to participate and submit claims for reparations, its practice has meant that states are absolved from taking responsibility. Yet the reparations available at the ICC may fail to address their needs.

The turn to the International Court of Justice as a site for challenging violence in Ukraine and Gaza has offered opportunities for accountability and truth that focus on state responsibility.

However, any decision by the Court will require enforcement, and this raises implementation challenges.

Pathways to justice for victims

Holistic responses to atrocities are required to recognise and enforce victims’ rights. Justice for victims won’t just flow from prosecuting perpetrators, but instead needs to be considered within the suite of interventions that can deliver redress and truth.

The field of ‘transitional justice’ offers suggestions as to what this might involve. The UN has described transitional justice as encompassing a range of international and/or domestic measures, such as ‘individual prosecutions, reparations, truth-seeking, institutional reform… or a combination.’

At their best, transitional justice measures are grounded in the wishes and needs of victims and tailored to the specific context. While less headline grabbing than ICC investigations, academics and practitioners are exploring how transitional justice mechanisms might be applied to Sudan, Ukraine and Gaza.

These mechanisms also pose challenges. It is important not to over-simplify the histories behind these conflicts, or the risk of ongoing subjugation in the aftermath of any ceasefire. As law professor Matiangai V. S. Sirleaf notes, ignoring the “enduring presence of historical racial and colonial violence is something the field of transitional justice initiatives ignore at their peril.”

Nevertheless, while nothing can be more important than bringing violence to an end, taking victims’ rights and claims to justice seriously can play an important role in reaffirming victims’ dignity and humanity.

Dr Rachel Killean is a Senior Lecturer at Sydney Law School and a member of the Sydney Institute of Criminology, the Sydney Southeast Asia Centre, and the Sydney Environment Institute. She is the author of Victims, Atrocity and International Criminal Justice, Lessons from Cambodia.

Originally published under Creative Commons by 360info™.