The Schizophrenias of International Criminal Law

Abstract

STEVEN R. RATNER^ Imagine a system of criminal law that accepts the following anomaly: A soldier from one country intentionally kills an innocent civilian in another country during a between those two states and is criminally responsible; but if he intentionally kills a civilian of his own nationality during a civil war, he has not committed a crime. Moreover, if, instead, he intentionally kills a political prisoner in peacetime, he is not guilty of a crime; but if he tortures that political prisoner, he is. If this sounds like a haphazard set of rules making arbitrary distinctions for holding individuals criminally responsible for human rights violations, one has come to see some of the core flaws of international criminal law as it has traditionally defined international crimes. International criminal law refers to the international law that assigns criminal responsibility for certain particularly serious violations of international law.' While it encompasses criminal liability for individuals and obligations on states to suppress a variety of international offenses, including drug trafficking and aircraft sabotage,2 recent global attention has been directed at its concern with violations of human dignity during armed conflict and peacetime, in other words, violations of international humanitarian law and human rights law.3 This focus on criminal accountability for human rights abuses has manifested itself in the creation by the UN Security Council of ad hoc tribunals for the former Yugoslavia and Rwanda in 1993 and 1994;4 the completion of a Draft Code of Crimes Against the Peace and Security of Mankind by the UN's International Law Commission (ILC) in 1996;5 domestic trials over the last dozen years in a number of states emerging from national traumas;6 and the convening in June 1998 of a UN conference to conclude a treaty creating a permanent international criminal court.7 Yet, as the above examples demonstrate, the international legal process criminalizing violations of human rights and humanitarian law has yielded some apparently disturbing results. In particular, three seemingly arbitrary schisms have emerged: (1) a broad distinction between criminality for atrocities in wartime and those in peacetime; (2) a distinction among wartime atrocities between the criminality of those committed in interstate conflicts and the criminality of those in civil wars; and (3) a distinction among peacetime atrocities among the criminality of seemingly equally egregious acts (for example, torture versus murder). Must these divergences be legally ordained? In an age in which the international community seems increasingly committed to employing international criminal law to respond to serious breaches of human rights and humanitarian law, the source of these dichotomies and their consequences for human rights assumes great significance. This essay seeks to address the schizophrenias of international criminal law in four ways: first, by identifying the schisms of criminality and the various linkages that criminality has had to factors that, in the abstract, would seem irrelevant to criminal justice; second, by examining the sources of these differences; third, by considering the trends in the international legal processes toward their elimination; and fourth, by proposing strategies for actors in the international community to create a more coherent body of law for holding individuals responsible for atrocities. In the process of this analysis, other schisms within international criminal law will reveal themselves as well. I. IDENTIFYING THE SCHISMS A. Schism 1: Wartime Atrocities v. Peacetime Atrocities The term war crimes brings to mind a whirlwind of disturbing memories-from the Holocaust, to My Lai, to the roundup and execution of young and old men throughout Bosnia-Herzegovina. Yet alongside these images of are others-those of the Kulaks, of Mao's millions of victims, or of the Khmer Rouge's torture chambers. …