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Opinion

Muneeb Qadir
December 6, 2017

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Jurisdiction

Jurisdiction

Last week, Slobodan Praljak, a Bosnian Croat general, committed suicide after he was found guilty for war crimes by the International Criminal Tribunal for Yugoslavia (ICTY).
The incident immediately brought back memories of the war crimes that took place as a result of the breakup of the former Yugoslavia. The ICTY handed down its judgement last week – many years after the Republic of Yugoslavia was split apart. The former Bosnian Serbs army commander Ratko Mladic was also found guilty of war crimes. The crimes committed by the Bosnian Serbs and the Bosnian Croats against the Muslim population of the region between 1992 and 1995 resulted in thousands of people losing their lives or being displaced. However, justice delayed is justice denied.
In addition, the ICTY’s judgment also raises questions over why more has not been done by international law expert with respect to other parts of the world where human rights abuses are rampant. An obvious example is the atrocities being committed by the Myanmar army against its Rohingya Muslims, which drew international attention in August 2017. Since Myanmar has refused to provide any protection to these minorities, does international law not have a role to play in this regard?
A major limitation within the context of international law is the lack of compulsory jurisdiction of international law courts in these matters. This means that if the state parties have not consented to the jurisdiction of an international court, they cannot be expected to be bound by its judgments.
The International Criminal Court (ICC) was expected to play its part as it had jurisdiction to penalise acts of genocide, war crimes, crimes against humanity and crimes of aggression. However, the ICC’s jurisdiction also rests on the consent of the involved states. Therefore, since Myanmar is not a member of the ICC, it cannot be subjected to its jurisdiction unless the Security Council passes a resolution allowing the ICC to have jurisdiction over the matter as it did in relation to Darfur, Sudan. The Security Council’s failure to intervene in the matter despite the recommendation of the Human Rights Watch serves as a major disappointment.
Alternatively, the Security Council could set up a tribunal for trying Myanmar for war crimes as it did with the creation of the ICTY.
Palestine also acceded to the ICC’s membership in 2014 following the uproar caused by reported human rights violations caused by Israel in the Gaza Strip. A resolution on the issue is still awaited.
Unless international law plays its part in preventing human rights abuse, the substantive rights contained in the ICCPR will be of limited use. Recent reports of war crime victims fleeing from Nigeria and Chad and being auctioned off for slavery in Libya reflect their plight in a world where international law fails to strengthen its enforcement mechanisms.
The same applies to victims of the tyrannous Assad regime in Syria as well as the civilians of Yemen who are suffering as a consequence of military intervention following Saudi Arabia and Yemen’s tensions over the last three years without those responsible for incurring any liability under international law.
Unless the jurisdiction of the ICC is based on the consent of states, the international protection of human rights won’t occur – even if these abuses amount to acts that are deemed to be criminal under customary international law and the rules of universal jurisdiction. It is unfortunate that universal jurisdiction is not being exercised universally – not even by the court which is responsible for penalising international crimes.

The writer is an advocate of the high court.
Email: qadirmuneeb@gmail. com

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