Addressing violations of international humanitarian law through the international criminal justice system: A criminologist’s contribution

Abstract

The international criminal justice system has resorted to criminal sanctions as the sole response to international criminal offending, including international humanitarian law (IHL) violations. While responding to international criminal offending, the international criminal justice system has overly relied on utilitarianist and retributivist assumptions to criminal punishment that assumes the application of criminal law in enforcing compliance to societal norms in order to deter potential norm violators and to induce compliance. Furthermore, correcting criminal behaviour creates a sense of accountability and appeases victims of international humanitarian law violations and other international crimes. Arguments in support of this strategy also posit that it is important to take these steps because it brings a sense of respect to the rule of law or what is popularly known as fighting ‘impunity’. A reflection on the Nuremberg and the Tokyo trials following World War II seems to have influenced the criminalising of war crimes and other international crimes. On the other hand, criminologists over a century now have been studying causes of crime to influence public policy in crime prevention. It is, therefore, imperative to examine the aetiology of international humanitarian law violations through a criminological lens to inform international criminal justice policy on best approaches in responding to international crimes in general and war crimes in particular. The essay examines international humanitarian violations in the Democratic Republic of Congo to find out whether the international criminal justice system’s response to war crimes meet the purported stated goals of the international criminal justice system. The Lubanga case in the DRC situation is informative since it is the first conviction before the International Criminal Court.