Photo by Leo Lombardi
By what authority does one dare direct that famous phrase, “j’accuse!” at the state’s supreme executor of law? Is there a mechanism, through which a citizen can hold a national government to account? Can the citizen's arrest serve as a symbolic insistence that international humanitarian law be enforced?
International humanitarian law is coming to be defined by the dereliction of duty. Where a rules-based international order once stood as a lofty ideal, the reality of a nuclear-armed world now looms over the field’s failures.
In the face of the indiscriminate attacks on civilians and the taking of hostages on October 7, 2023, by Palestinian armed groups, international law stands disrespected.[1] In the face of an international failure to address allegations of unlawful collective punishment,[2] and “allegations of domicide, urbicide, scholasticide, medicide, cultural genocide and, more recently, ecocide” carried out by the Israeli government, levied by U.N, experts, who warn that the world now “stands upon the edge of a knife,”[3] international law stands disrespected.[4] In the face of an unexecuted arrest warrant issued for the President of Russia,[5] a permanent member of the U.N. Security Council, international law stands disrespected.[6]
Calls for action and warrants are not merely suggestions, the 1949 Geneva Conventions, ratified by 196 states, including all U.N. member states, impose a foundational obligation in Common Article 1: “The High Contracting Parties undertake to respect and ensure respect for the present Convention in all circumstances.”[7]
The International Committee of the Red Cross, perhaps the authoritative independent interpreter of the Geneva Conventions,[8] has issued commentaries which elucidate the obligations, and discretionary powers,[9] flowing from Common Article 1. What does it mean to “ensure respect”? “The High Contracting Parties are required to search for, prosecute or extradite alleged perpetrators of grave breaches ‘regardless of their nationality’ and to suppress all other breaches of the Conventions.”[10] The Commentary of 2020 makes clear that High Contracting Parties, including the U.S., have a positive obligation to bring violations to an end, and to “bring an erring Party to a conflict back to an attitude of respect for the Conventions.”[11] It is vital to note, especially in light of ongoing events, that this obligation includes preventing violations “when there is a foreseeable risk that they will be committed.”[12]
The means available to states to fulfill these Common Article 1 obligations include “resorting to penal measures to repress violations of humanitarian law”[13] and “supporting national and international efforts to bring suspected perpetrators of serious violations of international humanitarian law to justice.” Penal measures and national efforts logically include domestic law enforcement regimes. In addition, the Rome Statute, which established the International Criminal Court (ICC), explicitly requires that “States Parties shall ensure that there are procedures available under their national law”[14] for enforcement of international humanitarian law. As an example, The Swiss Basic Military Manual provides that international humanitarian law must be observed by civilian and military authorities and individuals.[15]The Danish Military suggests allowing domestic law enforcement of the Geneva Conventions.[16]
Those entrusted with the power to execute domestic law, and burdened with the obligation to ensure respect for international law against violations and foreseeable violations, refuse to act in many cases.[17] Domestic law enforcement of international humanitarian law, as suggested by the 2020 Commentary and the Rome Statute, gives rise to a kind of paradox. What is to be done when the domestic law, which should be used to ensure respect of international law, has as its supreme executor, a person who blatantly disrespects international law?
Let’s take, for example, President Biden. President Biden is the head of a state which has, currently and validly enacted, the American Service-Members’ Protection Act. This is a law which gives the President the power to literally invade The Hague, where the ICC is housed, in the event an American citizen is detained there.[18] An invasion of the court with jurisdiction over “most of the serious violations of international humanitarian law mentioned in the 1949 Geneva Conventions,” which the U.S. is party to, would likely be a failure to respect those conventions.[19] In addition, the Biden administration itself asserted that “Israel’s use of U.S.-provided weapons in Gaza likely violated international humanitarian law but that wartime conditions prevented U.S. officials from determining that for certain.”[20] What steps then has the administration taken to ensure a potential violation will not take place?
A foreign, and perhaps more clear-cut example is Vladimir Putin. Putin’s government has failed to enforce the arrest warrant issued for him. This warrant was issued by the ICC. [21] Despite Russia not being party to the ICC, the court still has jurisdiction over crimes outlined in the Geneva Conventions, and the failure to execute their warrants constitutes a failure to ensure respect for the Geneva Conventions. This, in itself, is a violation its obligation under Common Article 1.
The refusal of world leaders to take action that might spark a war with powerful, nuclear-armed neighbors is not surprising. Aside from these realities, there is a more technical bar to using domestic law enforcement against foreign leaders, which is state immunity. State immunity is an international legal doctrine which prevents heads of state from being subject to foreign courts.[22]
Those responsible for these violations will not surrender themselves and the international community refuses, or is unable, to act. Considering the role of chief executive, leaders’ own governments are generally unwilling or unable to act. However, if domestic law can be a valid avenue of enforcement for international humanitarian law, as suggested by the 2020 Commentary and the Rome Statute, and domestic law provides for citizen's arrest, perhaps a citizen can arrest the head of state in order to ensure respect of the Geneva Conventions.
Whether any jurisdiction has a code or statute worded in a way that would allow for this kind of arrest is beyond the scope of this pondering, but private people are generally able to detain someone for a serious crime known to have been committed, or committed in their presence, long enough for the police to arrive and take custody.[23]
A hypothetical case study: Country X is obligated to ensure respect of the Geneva Conventions using any means necessary. Reasonable means include the domestic legal system. Therefore, the domestic legal system must require respect of the Geneva Conventions. The head of state is bound by this legal system, and violates obligations under the Geneva Conventions by committing a war crime. The state is still obligated to ensure that respect which the head of state refuses to afford, so, acting in that interest of the state, assuming it can be done under valid domestic law, an individual performs a citizen’s arrest on the head of state.
Chaos, and indeed violence, would doubtless ensue.
This is not a practical solution to the lack of enforcement of international humanitarian law, even as a hypothetical. The idea is merely explored to raise the questions, who is supposed to enforce international humanitarian law, why do they seem to be failing, and what, if anything, can citizens do about it?
Leo Lombardi is a Staff Editor at CICLR.
[1] Human Rights Watch, Israel/Palestine: Devastating Civilian Toll as Parties Flout Legal Obligations, Human Rights Watch, https://www.hrw.org/news/2023/10/09/israel/palestine-devastating-civilian-toll-parties-flout-legal-obligations (last visited Sep. 27, 2024).
[2] Id.; see also Reuters, UN Experts Say Israel’s Strikes on Gaza Amount to ‘Collective Punishment’, Reuters, https://www.reuters.com/world/un-experts-say-israels-strikes-gaza-amount-collective-punishment-2023-10-12/ (last visited Nov. 13, 2024).
[3] U.N. Office of the High Commissioner for Human Rights, UN Experts Warn International Order On a Knife’s Edge, Urge States to Comply with ICJ Advisory Opinion, U.N. Office of the High Commissioner for Human Rights, https://www.ohchr.org/en/statements/2024/09/un-experts-warn-international-order-knifes-edge-urge-states-comply-icj-advisory (last visited Sep. 27, 2024).
[4] “Despite these adamant directions, States remain paralysed in the face of the seismic shift represented by the Court’s ruling and appear unwilling or unable to take the necessary steps to meet their obligations.” Id.
[5] Situation in Ukraine: ICC Judges Issue Arrest Warrants Against Vladimir Vladimirovich Putin and Maria Alekseyevna Lvova-Belova, International Criminal Court, https://www.icc-cpi.int/news/situation-ukraine-icc-judges-issue-arrest-warrants-against-vladimir-vladimirovich-putin-and (last visited Sep. 27, 2024).
[6] Mongolia Ignores An International Warrant for Putin’s Arrest, Associated Press, (Sep. 4, 2024), https://apnews.com/article/mongolia-russia-putin-international-criminal-court-warrant-4c79850ecf409287924e3d96218abc78.
[7] Geneva Convention Relative to the Treatment of Prisoners of War, art. 1, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135.
[8] See, Int’l Comm. Red Cross, Our Mandate and Mission, https://www.icrc.org/en/our-mandate-and-mission#:~:text=Established%20in%201863%2C%20the%20ICRC,by%20members%20of%20the%20Movement. (last visited Sep. 27, 2024), stating, “[i]t was on the ICRC’s initiative that states adopted the original Geneva Convention of 1864. Since then, with the support of the entire Movement, we have urged governments to adapt international humanitarian law to changing circumstances, particularly modern developments in the means and methods of warfare, so as to provide more effective protection and assistance for the victims of conflict.”
[9] Carlo Focarelli, Common Article 1 of the 1949 Geneva Conventions: A Soap Bubble?, 21 Eur. J. Int. Law 125, 141 (2010).
[10] Int’l Comm. Red Cross, Convention Relative to the Treatment of Prisoners of War, Commentary of 2020, Int’l Comm. Red Cross, para. 179, https://ihl-databases.icrc.org/en/ihl-treaties/gciii-1949/introduction/commentary/2020?activeTab= (2020).
[11] Id. at para. 197.
[12] Id.
[13] Id. at para. 214.
[14] Rome Statute of the International Criminal Court, opened for signature 17 July 1998.,2187 UNTS 3, art. 88. (2002).
[15] Focarelli, supra note 9, at 143.
[16] Michael N. Schmitt & Sean Watts, Common Article 1 of the 1949 Geneva Conventions, Lieber Institute: West Point (Apr. 12, 2024)., https://lieber.westpoint.edu/common-article-1-1949-geneva-conventions/.
[17] See supra note 5.
[18] Human Rights Watch, U.S.: ‘Hague Invasion Act’ Becomes Law, Human Rights Watch, https://www.hrw.org/news/2002/08/03/us-hague-invasion-act-becomes-law, (last visited Nov. 13, 2024).
[19] Advisory Service on International and Humanitarian Law, Statute of the International Criminal Court, Int’l Comm. Red Cross (2018), https://www.icrc.org/sites/default/files/document/file_list/final_-_icc_statute_-_2018_update_edited_final_en.pdf.
[20] Ellen Knickmeyer, Aamer Madhani & Mathew Lee, US Says Israel’s Use of US Arms Likely Violated International Law, But Evidence is Incomplete, Associated Press (last updated May 11, 2024), https://apnews.com/article/us-israel-gaza-war-nsm-international-law-c83b6f39ce2799e5d2c473a337e2f857.
[21] See supra note 5.
[22] United Nations Convention on Jurisdictional Immunities of States and Their Property, Ch. III, art. 5, Dec. 2, 2004.
[23] Seth Stoughton & Caroline McAtee, Can Anyone Make a Citizen’s Arrest? The History and Legalities of Catching Criminals Yourself, Univ. S.C. (Feb 14. 2024), https://sc.edu/uofsc/posts/2024/02/can-anyone-make-a-citizens-arrest.php.
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