The ICJ Armed Activity Case – Reflections on States' Obligation to Investigate and Prosecute Individuals for Serious Human Rights Violations and Grave Breaches of the Geneva Conventions

Abstract

AbstractIn the Armed Activity Case, the International Court of Justice, found Uganda in breach of various international obligations. In establishing the state responsibility of Uganda, the Court concluded that in the Democratic Republic of Congo the country's troops committed, among other offences, grave breaches of international humanitarian law, as well as serious human rights violations, including torture. According to the Geneva Conventions of 1949 and human rights treaties, these acts should also entail individual criminal responsibility. Furthermore, states have undertaken an obligation to investigate and prosecute individuals for these heinous acts. However,enforcement of that obligation has always been problematic; states have been very reluctant to prosecute their own forces. And without an effective enforcement mechanism at the international level, states have largely gottenaway with this bad practice. In light of the importance of having a state's responsibility support the enforcement of individual criminal responsibility at the national level, the article briefly reflects on the case's impact on individual criminal responsibility. It addresses the issue in two ways. Firstly, it examines a state's obligation to prosecute individuals as a secondary obligation, i.e., inherent in a state's obligation to make reparations for an international wrongful act. Secondly, it explores a state's obligation to prosecute individuals as a primary obligation, undertaken in the Geneva Conventions and human rights treaties. The article concludes thatdespite the clear obligation of a state to enforce individual criminal responsibility for the acts at hand in the Armed Activity Case, and the rear occurrence of having a case of this nature reaching the jurisdiction of the International Court of Justice, where the opportunity to address it and enforce it was largely missed. The nature and submissions in other recent cases at the International Court of Justice indicate that in the near future the Court will have a larger role in enforcing states' obligation to investigate and prosecute serious crimes at the national level.