Our war on terrorism will be much broader than the battlefields and beaches of the past. The war will be fought wherever terrorists hide, flee or plot.[1]
The War on Terrorism (WoT), also known as the Global War on Terrorism (GWOT), is the officially accepted name for the transnational military campaign initiated by the United States in response to the terrorist attacks carried out by al-Qaeda operatives against strategic sites on U.S. soil on September 11, 2001. America’s initial military response evolved into a large-scale campaign launched by the US-led coalition, encompassing contingents from NATO member states as well as non-alliance countries engaged in the campaign to destroy al-Qaeda and other militant extremist organisations. From a tactical-strategic and intelligence perspective, the war on terrorism has entailed a significant institutional reorganization and increase in funding for U.S. capabilities to gather strategically sensitive information, a global program to capture individuals suspected of terrorism or links to terrorist cells, and their subsequent internment at Guantanamo Bay and other locations, so-called ‘dark zones’, unprecedented intrusion into the privacy of citizens not only of states deemed to be assisting terrorist cells, but also outside the scope of authorised surveillance and data collection, and the blatant trampling of human rights and the rules of war in the name of ‘protecting national security’.
The military operation, which later came to be referred to as the “Invasion” of Afghanistan, is considered the first stage of the military campaign and involves contingents from the US, UK and the Northern Alliance of Afghanistan (a military entity whose main objective is to counter the Taliban regime established in the country). In the subsequent stages of the systematic deployment of military formations to control areas identified as ‘strategically decisive’ for future action to neutralise al-Qaida, the initial military presence is supplemented by military personnel and equipment from Australia, Canada, Denmark, France, Italy, the Netherlands, New Zealand and Norway, among others. By 2020, when the United States officially withdraws, hostilities are spread over Iraq, Libya, Syria, Somalia, Pakistan and Yemen, with the participation of military formations from over 54 countries.
The global nature of the War on Terror, its cross-border dimensions and its extraordinary character (the enemy in the military conflict is no longer another state but an international, dynamic, decentralized, religiously inspired movement characterized by “Islamist militancy” rather than “state-centric” affiliation[2]) lead to significant differences in the understanding of permissible behaviour and the applicability of the “rules of war” not only between the different actors in the conflict, but also between their own political parties and military contingents positioned in the “theatre of war”. Thus, although most of the countries involved in the conflicts have ratified the Geneva Convention and its Protocols, the Rome Statute of the International Criminal Court, the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, in the framework of the Global War on Terrorism, either vocally (USA) or tacitly (UK, Canada, most European countries with a contingent within NATO missions), referring to the extraordinary nature of the conflict and the unclear status of members of extremist gr This creates the conditions for actions to be carried out with impunity by the troops of allied states which, in any other conflict, would be defined as ‘war crimes’ subject to criminal prosecution. On the other hand, the ICC prosecution decided to prioritize proceedings targeting al-Qaeda fighters, Taliban members and ISIS in order to focus on “the scale and nature of crimes within the court’s jurisdiction,” refusing to investigate a number of war crimes cases committed by US and British military personnel as “non-priority” due to lack of resources.[3]
This post will briefly outline the basic principles of war crimes prosecution, the existing limitations on the powers of the International Criminal Court, and the differences in the treatment of acts committed by members of the militaries of the two parties to the conflict, which demonstrate the existence of a dangerous double standard of selective application of international humanitarian law in the framework of the so-called “just war” against terrorism, which in turn calls into question its supremacy.
Humanitarian Law in the Context of the Global War on Terrorism
International humanitarian law (IHL) is a system of treaty and customary rules of international law governing the relations between the subjects of international law, parties to an armed conflict (or war), concerning the means and methods employed in that regard, the protection of the wounded, the sick, prisoners of war and the civilian population. The IHL calls upon States in cases of armed conflict (or war) to cooperate, whether or not parties to the conflict, to humanize armed confrontations as far as possible. Anchored principally in the four Geneva Conventions of 1949 and the Additional Protocols of 1977 , as a system of norms, international humanitarian law imposes an obligation on ratifying states.[4]
To ensure compliance with international humanitarian law, the Rome Statute established the International Criminal Court, the first and only permanent international court with jurisdiction focused on prosecuting individuals for international crimes such as genocide, crimes against humanity, war crimes and the crime of aggression. The Court is intended to act as a subsidiary body, to supplement existing national judicial procedures for the crimes it tries, and therefore exercises its jurisdiction only when national courts are unwilling or unable to prosecute the perpetrators. The lack of a universal territorial jurisdiction statute allows the ICJ to investigate only crimes committed within Member States, crimes committed by nationals of Member States or crimes in situations referred to the Court by the UN Security Council. The Court became operational on 1 July 2002 with the entry into force of the Rome Statute, and States Parties to the Rome Statute became members of the Court and participate in the Assembly of States Parties, which governs the Court. As of December 2020, 123 states are members of the ICC; 42 states have not signed the Rome Statute and have not become parties to it.[5]
Being a subsidiary body without universal territorial jurisdiction, the court is severely limited not only in its powers but also in the practical exercise of its activities. Positioned in The Hague, the ICC does not have its own police or prison system and therefore relies heavily on the goodwill of States – both in terms of providing access to documents, evidence and witnesses for the investigative process and for the subsequent detention of accused persons and their transfer to the Court. This heavy reliance on the ICC also determines the limited effectiveness and selective nature of the criminal procedures undertaken[6] – insofar as the court has a limited budget and the effectiveness of the investigations conducted by the prosecutor’s office depends entirely on the goodwill of the countries of Western Europe and the USA, according to some authors there is a certain tendentiousness in the assessment of which complaints should be examined and, respectively, investigated and which signals should be left unaddressed.[7] [8]
There are also temporal limitations for the ICC – the Court cannot investigate incidents prior to the entry into force of the Rome Statute, as well as incidents prior to its ratification by the State whose national committed the act/on whose territory the act was committed.
Limitations on the Court’s Jurisdiction Arising from the Provisions of the Rome Statute
The Global War on Terrorism began with the terrorist attacks of September 11, 2001. During the period September 2001-July 2002 (when the Rome Statute formally came into force), U.S., NATO and other allied forces actively engaged in a wide range of warfare that could have the hallmarks of war crimes but would not fall within the jurisdiction of the Court due to temporal constraints. To the extent that some of the U.S. allies with contingents in the conflict ratified the Rome Statute much later, and Armenia and Turkey are not parties to it at all, individual acts committed by specific contingents would again not be subject to ICC jurisdiction.
As for the other party to the conflict, Afghanistan ratified the Rome Statute on 10 February 2003, so Afghan nationals would potentially only be indictable for acts committed after that date. To the extent that Iran, Iraq, Syria, and Libya are not parties to the Statute, the only possible way to engage their responsibility would be after explicit intervention by the Court from the UN Security Council.
Thus, to effectively exercise the Court’s jurisdiction, a combination of factors is required that in some cases prevents the prosecution of violators of international law for acts dating back to the beginning of the conflict.
Limitations on the Jurisdiction of the Court Imposed by National Law
The only state that has ratified the Rome Statute to adopt a formal national act declaring that it does not recognise the jurisdiction of the International Criminal Court over its own nationals is the United States. On August 2, 2002, U.S. President George W. Bush signed the U.S. Servicemembers Protection Act of 2002, which prohibits federal, state, and local governments and agencies (including courts and law enforcement agencies) from assisting the ICC, prohibits the extradition of U.S. persons to a country that recognizes ICC jurisdiction, and prohibits the transfer of classified national security and law enforcement information to the ICC. The Act also prohibits the provision of U.S. military assistance to states that are parties to the ICC. However, exceptions are allowed for assistance to NATO members, major non-NATO allies, Taiwan, and countries that have entered into “Article 98 agreements” agreeing not to surrender U.S. citizens to the ICC. The law also authorizes the use of military force to release any American or citizen of a U.S.-allied country detained by the court located in The Hague. This provision, dubbed the “Hague Invasion Clause,” has provoked a strong reaction from U.S. allies around the world, especially in the Netherlands.[9] The law is still in force, although the other states that have ratified the Rome Statute do not recognise its validity. The law does not prevent the US from prosecuting war criminals under the rules of its domestic law, which should not be seen as a particular pledge of compliance with humanitarian law by America or its citizens – in the entire history of the US armed forces (since the Civil War), there have been only 12 cases of servicemen convicted of war crimes serving an effective sentence.
Another state that has ratified the Rome Statute that has retrospectively adopted national legislation to limit the jurisdiction of the ICC is the UK. It should be noted that the Overseas Operations (Servicemembers and Veterans) Act 2021, as passed, “introduces measures to require that judicial proceedings arising out of operations overseas take into account the unique context of military operations overseas, and the exceptional demands and pressures to which Her Majesty’s forces are subjected during such operations.” The Act places additional requirements on judicial authorities when investigating crimes committed by members of the armed forces, as well as further limitations on Thus, while it does not expressly preclude the ICC from initiating proceedings against a member of Her Majesty’s Armed Forces, the subsidiary nature of the Court’s jurisdiction leads to a situation in which a national court may either significantly delay proceedings or refuse to initiate such proceedings by invoking the restrictive circumstances set out in the Act. In such a case, there would not be a denial of justice (which is a requirement for engaging the jurisdiction of the court), but an inability to initiate proceedings due to a preclusive circumstance that would not allow a valid referral to the ICC in the case.
The Impact of Modern Tactical-Strategic Techniques and Military Technology on the Concept of “War Crime”
Challenging the Global Network of Remote Killing
Andreas Schüller, Wolfgang Kaleck, 2017
In addition to the temporal and territorial limitations on the court’s jurisdiction, a fundamental prerequisite for the prosecution of war crimes is the ability to identify a specific perpetrator. This issue takes on increasingly complex dimensions with the use of modern military technology (in particular the use of drones), which allows for the relative remoteness of the perpetrator from the actual site of the attack. According to a statement by the European Centre for Constitutional and Human Rights, “the near-global capacity to launch air strikes anytime and anywhere.. is one of the most characteristic features of armed drones – and therefore a new dimension of war. U.S. drone warfare often violates international law, such as the strict rules of engagement and self-defense, the principles and customs of war, and basic human rights (namely the right to life and physical integrity) by attacking individuals without sufficiently defining their status. This leads to gross violations of human rights and international law. “[10]
As will be discussed below, the most devastating incidents in terms of civilian casualties are the result of air attacks on civilians. At present, the United States refuses to provide official information on incidents in which mishandling of a drone has resulted in civilian casualties, notwithstanding the principled postulates for the use of this type of weaponry.[11] The frequently used US tactic of “double strike warfare”, which aims at maximum defeat, is subject to considerable criticism, as it constitutes a targeted attack against civilians, in particular wounded and helpless people, as well as medical personnel, without a strategic reason, which constitutes a war crime.[12] Despite criticism of the use of drones to deliver strategic strikes, the United States continues to use a type of weaponry that raises additional questions when investigating such incidents – how to determine individual responsibility for damage and civilian casualties in the face of a complex decision-making and order-giving system that distances command from the operator of the aircraft..
Evidence of a Double Standard in the Treatment of War Crimes Depending on the Perpetrator
To the extent that the Global War on Terrorism is a wide-ranging conflict involving the participation of a total of 70 states at various stages of its development and extending temporally over two decades, an examination of all instances of double standards in the treatment of analogous incidents would not be exhaustive until the cessation of hostilities and trials pending at the time of writing. Therefore, the submission will examine the most high-profile cases in which an investigation has either concluded or an official determination has been made that there will be none.
Due to the limitations on the ICC’s jurisdiction outlined above, many of the violations of international humanitarian law within the conflict remain outside the scope of its jurisdiction. To illustrate the double standard in the application of transitional justice mechanisms in the field of international law, case studies involving the main actors of the Allied Powers (the United States, the United Kingdom and Australia) will be examined, juxtaposed with the treatment of acts committed by representatives of opposing military formations.
To the extent that the United States refuses to recognize ICC jurisdiction, potential incidents are handled only by the country’s military tribunals, with the ICC denied even in cases where the court would have the potential to conduct an investigation. At present, the number of convictions of war crimes committed by U.S. military personnel that have been handed down and entered into force are negligible compared to the number of incidents that are unanimously agreed upon, both within the international community and among some investigative bodies within the U.S. itself, to constitute inherently war crimes[13].
The other two countries examined, allies of the United States in the conflict (the United Kingdom and Australia), present an interesting private case of completely opposite responses by military command and civilian authorities to identified instances of war crimes committed by nationals of these countries, which provide a broader basis for comparison of the treatment of violations of humanitarian law in the Global War on Terror.
The existence of a double standard in the treatment of parties to the conflict will be demonstrated through the presentation of the work of the International Criminal Court in investigating complaints received against the Afghan National Army, Al-Qaeda, ISIS, and the UN initiative to investigate and hold accountable the crimes committed by Da’esh/Islamic State in Iraq and the Levant and the establishment of a tribunal to investigate the conflict in Syria.
The United States and International Humanitarian Law
From the outset of the conflict, the United States has adopted a method of operation involving a blatant disregard for human rights, for the rules of warfare, and for any other existing norms of international law capable of impeding the conduct of what the American people accept as a “just war for survival.” According to a 2014 survey of the attitudes of 750 Americans[14] The authors reach some worrying conclusions. First, the respondents reject the notion of equality and equal treatment of military personnel on both sides of the conflict and have no problems with the potential inhumane treatment of POWs. Secondly, whether a soldier participates in the conflict of his own volition or under duress is irrelevant to the respondents, as in either case the enemy combatant, in their view, deserves no mercy or assistance, even if he needs it. Third, the American public as a whole tends to perceive as “war crimes” only the actions of the opposing side, but not those of its own armed forces, no matter how reprehensible the particular conduct might be. In conclusion, the researchers concluded that “half of the American public appears to believe that the justness of war obliterates the crimes of war criminals … and fighting for a just cause provides moral license for total war”[15], which predetermines the overall attitude of disregard and denial on the part of the American public, military and political elite towards the rules of warfare and the investigation of war crimes committed by their own military or by representatives of allied contingents.
For this reason, the political elite and the armed forces have been given principled approval in applying flexibility in interpreting the rules of humanitarian law. The official position of the U.S. Department of Defense, extensively reviewed and criticized by the International Red Cross in a series of opinions on the matter, maintains that detainees at Camp Guantánamo and other CIA-administered locations do not fall within the scope of protection provided by the Geneva Convention, as these persons are not prisoners of war but detainees on suspicion of terrorism, and insofar as the Global War on Terror is being waged against extremist groups and not against states themselves, humanitarian law and the rules of war are not applicable to these military operations as they do not constitute a classic military conflict.
The International Red Cross, as guardian of the Geneva Conventions, criticized this interpretation, citing the principled position that the US government had initiated a military conflict rather than using the applicable measures of international investigation. Therefore, the rules of international humanitarian law should apply and the detainees should be considered prisoners of war with the resulting rights[16], the rules of war apply and the actions of military personnel may be investigated and punished as war crimes.
Therefore, provided that the rules of international humanitarian law are applicable to the conflict, the refusal to investigate the acts of US military personnel and civilians employed under contract with the US military constitutes a double standard in the treatment of war crimes, which is expressed in several main dimensions,
First of all, there is a misinterpretation of the application of the norms of international humanitarian law with regard to complaints of persons who were subject to detention without investigation and conviction within the framework of the “Protective Relocation and Intensive Interrogation Program” and the policy of “secret “rendition” – forced detention in undesignated CIA facilities, the most famous of which is the camp at Guantanamo Bay. The program has been the subject of criticism regarding its legality, effectiveness and admissibility, with Amnesty International, the European Center for Constitutional and Human Rights, etc. making a number of attempts to initiate legal proceedings, which have either not been crowned with success[17] or lead to minimum sentences, [18] due to the high response in the international media [19]. To date, all convicted individuals have either served short sentences or been released early for good behavior, and the private contractors involved in the incident have not been investigated.[20]
According to the Report on the Effectiveness of the Protective Relocation and Intensive Interrogation Program, “at no time did the CIA’s coercive interrogation techniques result in the collection of intelligence about an imminent threat, such as the hypothetical ‘ticking time bomb’ information that many believe justifies the use of these techniques.“[21] The report became public in 2014, but this did not lead to any criminal proceedings being taken against either the senior officers and administrators who authorized its use, or against the persons conducting the interrogations.
Secondly, there is a lack of initiative to investigate incidents targeting defenseless civilians in the context of airstrikes. Such operations, targeting targets without strategic value or the presence of enemy troops, constitute a violation of the rules of war and international humanitarian law and are inherently war crimes. In the period leading up to the US withdrawal from Afghanistan, a number of cases of civilian killings due to negligence or insufficient/incorrect information claimed the lives of thousands of local residents, for which no criminal proceedings have been initiated to date – neither against the soldiers themselves, directly responsible for the strikes (including drone operators who entered incorrect coordinates), nor against their superior officers responsible for conducting the operations. The most famous such incidents are the airstrike carried out by US forces in 2008 in the village of Azizabad, which resulted in the killing of 76 civilians, including 56 children, as a result of false information provided by a group of contractors hired by the army [22], the 2009 airstrike on the village of Granay, in which between 140 and 146 civilians were killed, including 93 children; and the 2010 airstrike on the village of Sangin, carried out by Allied forces, in which one of the large buildings in the village, where 52 civilians, most of them children, were located, was destroyed. 39 of them died, the rest were injured. In neither case was an investigation carried out, with the US Department of Defense refusing to hold any of the participants in the incidents accountable. The ICC refuses to do the same, even with regard to NATO servicemen, in respect of whom the court is not limited to conducting an investigation.
Donald Trump’s Pardon Campaign During His First Term
In the last days of his first term in the White House, Trump issued a series of pardons or preliminary pardons for ongoing investigations, which caused a particularly negative reaction among the military command. The campaign led to the cancellation of some of the only war crimes convictions issued against representatives of the military units and as a result had a detrimental effect not only on the prestige of military justice in the United States, but also on the discipline of the military itself. Thus, the last days of Trump’s term became an emanation of the complete disregard for the rules of war, humanitarian law or human rights, which characterized the entire US campaign over the past two decades and confirmed the existence of a double standard in relation to American servicemen, secured by an irrevocable act of the head of state.
Britain and the Circumvention of the ICC
Unlike the United States, Britain has not taken explicit action to directly restrict the International Criminal Court from investigating its citizens. According to a 180-page ICC report[23], published in December 2020, there are grounds to believe that between April 2003 and September 2003, members of the UK Armed Forces in Iraq committed the war crime of wilful murder against at least seven individuals under their control, and between 20 March 2003 and 28 July 2009, members of the UK Armed Forces subjected at least 54 individuals who were detained at Camp Breadbasket to torture and inhumane treatment. While the prosecution failed to prove any intent on the part of the British authorities to delay the case, the report concluded that the Royal Military Police’s investigations were “inadequate” and were “marked by a lack of independence and impartiality”[24], but there are not sufficient grounds to engage the procedures of the International Criminal Court, since an investigation was nevertheless conducted, but it did not lead to the necessary result, which shows systematic problems in the investigation of war crimes, but not intent. Thus, by using the cumbersome system of military justice, Britain manages to prevent the conviction of its citizens by the ICC, and with the recently adopted legislation, makes future investigations of war crimes almost impossible.
Australia and the “Shadow of the ICC”
Unlike the US and UK, the Australian Army launched a major investigation after a number of special forces soldiers returned home with severe cases of post-traumatic stress disorder in 2014 and rumors began to circulate that some members of the Special Forces, known as the Special Operations Task Force in Afghanistan, had committed war crimes. The then-Commander of Special Operations Australia commissioned a review of the command’s culture from a sociologist who heard disturbing accounts of special forces behavior on the battlefield. The Commander of Special Operations Australia reported his concerns and the review of the soldier’s culture to the then-Chief of Army Staff, who commissioned a major investigation to determine the extent to which war crimes had been committed and the seriousness of the acts. In 2020, the so-called Brereton Report was published [25], which contains over 400 pages of information and concludes that during the period 2005-2016 there were 23 incidents in which 39 unarmed civilians and prisoners of war were unlawfully killed by or on the orders of members of the special operations task force. In an unprecedented recommendation for the treatment of war crimes, the investigators call for accountability not only from the perpetrators themselves, but also from the highest level of command, since by their actions or inactions they created the culture and conditions not only for allowing the crimes to be committed, but also for their delayed reporting. The specially appointed Military Prosecutor’s Office for Special Investigations (the last war crimes case committed by an Australian serviceman dates back more than 120 years, so an investigative body had to be appointed ad hoc) has expressed some doubts about how the legally provided for Australian military law immunities and special privileges granted to witnesses during the investigation would be affected, as well as the question of investigating the responsibility of the command for crimes by subordinates. Despite the potential obstacles mentioned, Australia refuses, at least at this stage, to grant the International Criminal Court jurisdiction to investigate the case until all the circumstances are clarified.
The International Criminal Court and the Afghan State
Illustrating the existence of a double standard in the investigation of war crimes in the framework of the War on Terror requires examining the initiatives of the ICC and the international community with regard to the actions of the other party to the conflict – the armed forces of Al Qaeda, ISIS and the Afghan National Army. Since neither Al Qaeda nor ISIS recognize the jurisdiction of the court, and are not parties to the Rome Statute, the only possibility for engaging criminal responsibility is by initiating an investigation against members of the national army.
According to a 2018 consolidated report of the Department for Legal Representation and Compensation for Victims of War, Conflict and Genocide in the World, for the period 2017-2018, a number of complaints have been filed, including a class action on behalf of more than a million victims of the conflict, brought by the UN through its agency, which are subject to consideration by the court.[26]
Afghanistan ratified the Rome Statute on 10 February 2003. The ICC can therefore exercise its jurisdiction over crimes listed in the Rome Statute committed in the territory of Afghanistan or by its nationals from 1 May 2003 onwards, notwithstanding complaints received for a period preceding ratification. Although the complaints contain information on alleged crimes committed by the Taliban, the Afghan National Security Forces and US military and CIA personnel, the ICC Prosecutor’s Office has decided to focus its investigation primarily on potential violations committed by Taliban forces, which has angered many of the complainants and led to justified criticism that it is creating preferential differential treatment for similar war crimes cases.
Another major criticism of the proceedings is the intervention of the UN, which refuses to use its right to impose the court’s jurisdiction over crimes committed by US and NATO troops, and focuses entirely on Afghanistan and the internal conflicts in the country at a time when the gradual withdrawal of allied troops is creating a particular vacuum and conditions for violations, instead of providing the necessary assistance to reduce the negative consequences.
The Legal Status of the Current Taliban Government and the Applicability of the Rome Statute
As long as the new government is not officially and internationally recognized, the ICC has no jurisdiction in the country – the court has a subsidiary role and can only attempt to investigate after it finds that the legitimate authority refuses to take the necessary steps to investigate war crimes and punish their perpetrators. If recognized as legitimate, the Taliban government could refuse to recognize the jurisdiction of the ICC, as Afghanistan acceded to the Rome Statute in 2003 under the US-installed transitional government, whose legitimacy is disputed by large parts of the population. Thus, Afghanistan’s ratification of the Rome Statute could be revoked, which would hinder the ICC’s ability to investigate the country.
A major diplomatic obstacle to initiating criminal proceedings against members of the Taliban forces is that initiating such proceedings by the ICC would mean de facto recognition of them as legitimate/equal to the legitimate state administration, since the only way for the ICC to intervene (as described above) is in the absence of action by the legitimate government.[27] The Rome Statute does not give the court the authority to intervene in emergency situations, as well as to administer justice within the framework of an established state of war or emergency government.
Given the described limitations on the legitimate real exercise of the court’s competences with respect to Taliban forces, as well as the selective investigation only of complaints concerning the actions of the Afghan army, but not of allied forces or the CIA, the initiated investigation is largely a political move, devoid of any legal force for the new government in the country. In this way, the main goal for which the court was formed will not be achieved – to ensure compliance with the norms of humanitarian law and retribution for war crimes committed within the framework of the conflict as a guarantee of respect for human rights in the field of international security.
The UN Investigative Team on Accountability for Crimes Committed by Da’esh/Islamic State in Iraq and the Levant and the Potential Tribunal for Syria
Continuing the already presented example of selective treatment by the ICC and the UN of the military units of the parties to the conflict, another initiative of a vindicative nature should be considered, which aims to engage the jurisdiction of the court with respect to countries outside the scope of application of the Rome Statute.
Since Iraq and most countries in the Levant (Syria, Lebanon, Israel, Jordan, Egypt, Turkey) are not parties to the Rome Statute, the UN Security Council established an investigative team in 2014 to engage responsibility for the crimes committed by Da’esh/Islamic State in Iraq and the Levant. The team found that numerous international crimes were also committed against the Yazidi community, including genocide, enslavement, sexual violence, forcible transfer, persecution on religious and gender grounds, and recruitment of children into an armed group. The team particularly emphasizes the legal weight of the investigation into the crimes of ISIS/Daesh, as it is expected to have a dramatic impact on every aspect of the country’s reconstruction, while at the same time commenting on the need to establish an international monitoring mechanism to ensure that national courts will deliver justice given that the persecution of this population group is deeply embedded in the country’s culture.[28]
The other “hot spot” in the region is Syria. In 2011, the UN Human Rights Council established an independent commission of inquiry on the Syrian Arab Republic to investigate and document human rights abuses in Syria with the aim of establishing a tribunal to address human rights abuses in Syria in the context of the ongoing military operations against ISIS, following the example of the former Yugoslavia. At present, a tribunal cannot be formed due to the ongoing military operations, the dependence of its establishment on a Security Council act that can be vetoed by member states, and the current non-recognition of the ICC’s jurisdiction by the United States, for which the existence of war crimes committed by American soldiers on the territory of the country would constitute a major reason for challenging the establishment of the tribunal..[29]
Researchers from the two UN Security Council formations in question (the Iraq and the Levant Investigation Team) and the team working to create the conditions for the establishment of a Syrian war crimes tribunal agree that in both cases it is a complex process. While the existence of the international mechanism established by the UN Security Council guarantees to some extent the protection of human rights, there is some criticism of the extent to which a potential tribunal would be independent and impartial or would it once again become a “victors’ court.” “[30] similar to former Yugoslavia and Rwanda.
Conclusion
Given the information presented in this paper, it can be concluded that there is a double standard in terms of prosecuting war crimes perpetrators within the Global War on Terrorism, which is observed both in public opinion and in the work of the International Criminal Court and the UN Security Council.
This double standard sets a dangerous precedent by giving greater weight to the acts committed by local military formations at the expense of the crimes committed by the occupying forces, which leads to a kind of “devaluation” of the lives of the local population and denial of protection in the event of violations of basic human rights. For tactically, strategically, politically and economically stronger states as participants in the conflict, a preferential position of impunity and inviolability is created at the expense of disproportionately strict treatment of representatives of the local population even in states that are not parties to the Rome Statute establishing the International Criminal Court. In this way, the selective application of international humanitarian law leads to a blurring of the boundaries between civilians and combatants, between acts of aggression presented as initiatives of humanitarian intervention and targeted military actions against civilians within the framework of the “just war” against terrorism. This lack of consistency in the actions of the jurisdiction, called upon to ensure compliance with the rules of war as a guarantor of human security in international relations, calls into question its supremacy and the suitability of the ICC to be a guarantor of retributive justice as a pledge for resolving residual conflicts and protecting the rights of civilians in warring states.
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[17] ECCHR (2020). THE US TORTURE PROGRAM APPROVED AT THE HIGHEST LEVELS, MANFRED NOWAK, FORMER UN SPECIAL RAPPORTEUR ON TORTURE, ECCHR
[18] ICRC. (February 2004). “Report of the International Committee of the Red Cross (ICRC) on the treatment by the Coalition Forces of Prisoners of War and other Protected Persons by the Geneva Conventions in Iraq during arrest, internment and interrogation,” ICRC, https://www.icrc.org/en/doc/resources/documents/news-release/2009-and-earlier/5yrl67.htm
[19] The Road to Abu Ghraib. (2021, February 20). Human Rights Watch. https://www.hrw.org/report/2004/06/08/road-abu-ghraib
Chronology of Abu Ghraib, Taguba report, staff research | GRAPHIC: The Washington Post – Updated February 17, 2006 – https://www.washingtonpost.com/wp-srv/world/iraq/abughraib/timeline.html
[20] Fair. E. (April 4, 2016). ‘It Was Torture’: An Abu Ghraib Interrogator Acknowledges ‘Horrible Mistakes’,Eric Fair, former Abu Ghraib interrogator. Fresh air expose
[21] Senate Intelligence Committee Study on CIA Detention and Interrogation Program, https://www.feinstein.senate.gov/public/index.cfm/senate-intelligence-committee-study-on-cia-detention-and-interrogation-program
[22] At least 90 Afghan civilians killed in recent military operations,. (2008, August 26). UN News. https://news.un.org/en/story/2008/08/270632-least-90-afghan-civilians-killed-recent-military-operations-says-un
[23] Office of the prosecutor, ICC, SITUATION IN IRAQ/UK; FINAL REPORT, December 2020
[24] Office of the prosecutor, ICC, SITUATION IN IRAQ/UK; FINAL REPORT, December 2020, ( p.177)
[25] Major General Brereton, (2020) INSPECTOR‐GENERAL OF THE AUSTRALIAN DEFENCE FORCE AFGHANISTAN INQUIRY REPORT. Australian armed forces
[26] VPRS final consolidated report on victims’ representations, containing an overview of the victim representations process, 20 February 2018. ICC
[27] Vöhringer, M. Balancing Accountability and Legitimacy, ICC Prosecutions as an Alternative to State Responsibility for Taliban Crimes, (08 October 2021). Verfassungsblog
[28] UN Security Council, ISIL/Da’esh Committed Genocide of Yazidi, War Crimes against Unarmed Cadets, Military Personnel in Iraq, Investigative Team Head Tells Security Council (10 May 2021). UN
[29] Omar Elzayat, (December 2020). Establishing an International War Crime Tribunal for Syria. Research Gate
[30] Peskin, V. (16 Aug 2006). Beyond Victor’s Justice? The Challenge of Prosecuting the Winners at the International Criminal Tribunals for the Former Yugoslavia and Rwanda. Journal of Human Rights
