“Everyone,” a chronicler recorded, “wished to be at the present to witness the death of the tyrant, traitor, sodomite and ravisher”. For weeks, flat-bottomed barges had ferried immense multitudes up the Rhine from Strasbourg and downriver from Basel to watch evil be judged and punished. Twenty-eight judges, nominated by the sovereigns of 11 states, had gathered in the mayor’s home at Breisach to judge innumerable murders and rapes, including of nuns committed by Peter von Hagenbach, governor of the city.
Tortured for days before the trial—as was the practice—the governor confessed to many crimes, some of which he was never charged with. Legal scholar Gregory Gordon has recorded, though, that the trial was remarkably fair, with lawyer Hans Irmy mounting a spirited defence.
Finally, one evening in 1474, the world’s first documented war crimes trial came to an end. Led by the judges on horseback, a torch-bearing procession made its way to the scaffold, and an executioner used a sword to detach Sir Peter’s head from his shoulders.
This week, the International Criminal Court’s (ICC) prosecutor, eminent British lawyer Karim Khan, applied for warrants to arrest Israeli Prime Minister Benjamin Netanyahu, together with his defence minister, Yoav Gallant, and Hamas leaders Yahya Sinwar, Mohammed Deif, and Ismail Haniyeh. Khan’s decision has earned sharp condemnation from the United States and divided the European Union.
Even though the warrants, if issued, will have little immediate impact. Like India, the US, and Russia, Israel is not among the 124 nations that are parties to the Rome Convention, which set up the ICC. Thus, it has no obligation to enforce the warrant. For their part, Hamas leaders have more reason to fear elimination in war than trial at The Hague.
For the international system, though, the warrants are a critical test of how it ought to deal with war crimes. Ever since the Nuremberg and Tokyo war crimes trials, which took place after the Second World War, nation-states have sought mechanisms to enforce norms on how violence is used.
The ICC’s critics, though, have argued it is too weak-kneed to confront major powers, too entwined with the geopolitical agendas of the West, and too open to ideological abuse to be genuinely effective. The entire idea of countries bound by law, some contend, is a Pinko-Hippie delusion in a world governed by raw power.
The genesis of the ICC
Laws of war, eminent scholar Howard Levie recorded, were regularly debated through the Age of Empire as anxieties over the consequences of modern industrial conflicts grew. Conferences were convened at Brussels in 1874, at The Hague in 1899, and in Geneva in 1929. Following the First World War, the Allied powers inserted a clause in the Treaty of Versailles, imposed on defeated Germany, to try its former emperor, William II of Hohenzollern, for war crimes. But requests for his extradition from the Netherlands were stonewalled.
Even though there was little movement toward international criminal courts, some developments took place at the margins. Following the France-Siam war of 1893, law scholar Benjamin Brockman-Hawe writes, the two countries set up a binational court to try a Thai official charged with murder.
Following the carnage of the Second World War, though, the victors agreed to set up an International Military Tribunal, which, for the first time, had the authority to try “the major war criminals of the European Axis countries” for war crimes and crimes against humanity. The International Court of Justice was set up separately to try disputes between nation-states.
The genocide in Yugoslavia, following the break-up of the Soviet Union, led the major Western powers to throw their weight behind the creation of an international criminal court, which could prosecute individuals for future crimes. The US, lawyer Karen Sokol has recorded in a report for Congress, signed the Treaty of Rome in 2000 but withheld ratification, arguing his country should first “have the chance to observe and assess the functioning of the Court”.
Also Read: Hamas isn’t just a blood cult. More than tanks, Israel needs political imagination to crush it
Principles and power
Key to the US decision was its failure to persuade other member-states that the Security Council—in which it had veto power—should have control over what cases were referred to the ICC. Even though US judges are among the 15 elected to the ICC, and the country participates as a non-member in ICC deliberations. For their part, countries like India West or human rights organisations might use the ICC to prosecute soldiers involved in counter-insurgency operations.
Thus, Lucknow University law scholar Sanjay Gupta has noted. India demanded that the court only operate where the “national judicial system is nonexistent or unable to deal with the particular crimes”.
For the vast majority of nation-states, the idea that the coercive abilities of Great Powers would be restricted by law was an attractive one—but the ICC was soon facing allegations of double standards. Even as the ICC pursued war crimes by African leaders, international relations expert Matt Killingsworth, it declined to address the civil war in Sri Lanka, the violence in Syria, and the use of white phosphorous by Israel.
Later, in 2020, the ICC prosecutor decided not to investigate war crimes by UK forces in Iraq, despite its own findings that these crimes had been committed, Amnesty International reported. This was followed by a decision in 2021 to deprioritise an investigation into war crimes in Afghanistan by US forces, citing budgetary constraints.
The prospect of investigation by the ICC did lead Australia to open an investigation into war crimes committed by its soldiers in Afghanistan. The UK also arrested five special forces personnel reported to have committed war crimes in Syria. Earlier, war crimes enquiries in the UK disintegrated under political pressure.
Also Read: Israel lost control of the ‘narrative’ to Left academics. India must not go the same way
The debate ahead
From the superb collection of war crimes case studies compiled by Kevin Heller and Gerry Simpson, it is clear there are inevitable tensions between the almost-theological claims of international law and the ugly world of war. Law concerns itself with ethics and justness of means; politics, of which violence is just one tool, is relentlessly focused on ends. There is no algorithm that can help us determine, with any degree of moral certainty, whether the brutality and extra-judicial killing seen in Punjab or Sri Lanka was a necessary price to pay for saving lives or savagery that is beyond moral justification.
Following the Tokyo War Crimes trials, Indian judge Radhabinod Pal dissented against a justice, which pretended that Western colonialism was not implicated in the horrors Imperial Japan inflicted on the world. There was no justice, he argued, if Hiroshima and Nagasaki were not tried together with the criminals who sacked Nanking.
Yet, a world that hopes to distinguish itself from barbarism must have norms—and norms are meaningless without institutions to enforce them. Effective norms and effective enforcement will constrain countries like India, but could also offer tools to make them more secure. A world where institutions exist to act against states patronising terrorism or ensure effective punishment of wars of aggression cannot be an outcome not worth seeking.
The murderous anarchy that suffuses the international system is neither necessary nor inevitable. The ICC’s actions against Israel and Hamas might eventually amount to little, but it does make it imperative to reflect on the contours of what something better might be.
Praveen Swami is contributing editor at ThePrint. He tweets with @praveenswami. Views are personal.
(Edited by Humra Laeeq)