You Cannot Escape the Long Arm of the Law: How Gendo, Cohorts, and U.N. Officials Will Be Punished

Quick Refresher

In my last post, I discussed how Gendo Ikari (Gendo), Misato Katsuragi (Misato) and Ritsuko Akagi (Ritsuko) and certain U.N. officials committed war crimes (collectively referred as “war criminals”) – enlisting and requiring children to fight in an international armed conflict. Their actions violated peremptory norms and multiple treaties including the Geneva Conventions and the Rome Statute. With that being established, the next issue is accountability. For this article, Gendo, Misato, and Ritsuko are citizens of Neo-Japan, and the U.N. officials are citizens of Switzerland as it has a headquarters in Geneva and had command authority over Germany in the series.

Basis For The Reach

Before the international legal system can hold people accountable, it first requires the specific states where the war crimes took place or where the perpetrators are from to try and resolve the issue with its domestic legal system. These requirements are embedded in the international treaties that those states ratified and therefore they are bound to their processes. This is an important component of the domestic, international law relationship. The international tribunals do not want to supersede a state’s sovereignty, but in some cases when a state consciously fails to uphold both the treaty obligations and customary international law then the tribunals will assert their jurisdiction. The war criminals can be tried by the International Criminal Court (ICC) and by domestic courts via the Geneva Conventions.

Geneva Convention

The war criminals clearly violated the Geneva Convention. For purposes of this argument, Neo-Japan and Switzerland remain to have ratified all the Geneva Conventions and Additional Protocols – Japan still hasn’t ratified Additional Protocol III. This means the states are bound by the responsibilities laid out within them for breaches of international law.

In Article 50(2) of the Fourth Geneva Convention (“GCIV”), it held that occupying powers were not to enlist children “in formations or organizations subordinate to it.” Pertaining to international armed conflicts (IAC) – Additional Protocol I (“AP I”), Article 77(2) states that “parties to the conflict shall take all feasible measures in order that children who have not attained the age of fifteen years do not take a direct part in hostilities and, in particular, they shall refrain from recruiting them into their armed forces.” Under Art. 147 of GCIV it is considered a grave breach to compel a protected person to serve in in the forces of a hostile power. Further, Art 148 of GCIV holds that no High Contracting Party shall be allowed to absolve itself of liability for any breaches incurred. GCIV doesn’t stipulate the specific forum that the grave breach inquiry has to start in; rather, Art. 149 states that interested parties need to decide the form of inquiry and the umpire to conduct the process. This is a highly dynamic approach that gives latitude to the reporting state and alleged violating state.

The states of Neo-Japan and Switzerland cannot absolve themselves of the grave breaches they committed when they required children to fight the Angels. Because GCIV does not specifically designate that the forum be domestic first, the war criminals could be given over to international tribunals. However, there exists a reluctance for the states to give up their authority to the international community to try individuals like this. This means it would be more likely that each state would individually charge their respective citizens with their domestic statutes for the breaches. Concretely, Neo-Japan would charge Gendo and his cohorts under its laws. Switzerland would do the same for the U.N. officials. Although disparate sentences may be created, this is a means of accountability. However, there are other avenues.

ICC approach

The war criminals violated the Rome Statute triggering the possibility of the ICC having jurisdiction over their actions. Echoing GCIV and AP I, Article 8(2)(b)(xxvi) of the Rome Statute states that if a state enlists children under the age of fifteen into armed forces or groups that action constitutes a war crime in IACs. Before the ICC can activate its jurisdiction two prerequisites need to be satisfied: first, the state needs to have ratified the Rome Statute; and second, the ICC has to determine that the state failed to properly prosecute those who committed the war crimes. The first prerequisite is straightforward and can be dealt with quickly – all states where the war criminals are from have ratified the Rome Statute and accept the ICC’s jurisdictional capabilities. However, the second prerequisite is where the international community may be hindered.

The Rome Statute allows for the ICC to have jurisdiction over war crime punishments if states where the criminals reside or where the events took place fail to effectively prosecute. This is referred to as the principle of complementarity and may be the most important part of the Rome Statute. Understanding the nuances of complementarity is beyond the scope of this piece, but there are breakdowns to help tease out the applications. What we really have to consider is the admissibility of the case before the ICC. Under Art. 17 of the Rome Statute, it lays out the jurisdictional requirements: is the state currently dealing with the case, did the state investigate the same case and did it not prosecute, or has the same case been prosecuted at the state level. The second jurisdictional action is two part: did the state investigate the same case AND did it choose not to prosecute – if the answer to one is no then the ICC can come forward. What makes this difficult is that even if the ICC takes the case, there exists a small success rate in holding parties accountable.

Collectively, the war criminals may not be punished by the ICC. As a court of “last resort” the ICC is restrained from acting until the states themselves finish investigating, and/or prosecute the individuals. This is designed to respect the sovereignty of the states but also to promote legal efficiency so that the ICC doesn’t hear every case. Since the states are members of the ICC it is possible to be brought before the tribunal, but Neo-Japan and Switzerland are more than likely to handle the punishments themselves. They would prosecute the citizens and handle the case in such a way as to prevent the Art. 17 jurisdictional triggers from activating. Handling the war criminals internally prevents continued international embarrassment and would allow for quicker results than what the ICC typically is able to produce. In the end, although they recognize and support the Rome Statute and the ICC, they wouldn’t let a supernational tribunal decide the fate of their citizens.

Conclusion

Any way the cake is sliced we will see the parties be held responsible for their violations of international law. The violations were blatant, the violations were repeated, and the ramifications upon the children constantly disregarded. The states will likely hold individual trials and will be publicized internationally to show how they are enforcing their commitments to the treaty obligations. With the state’s prosecuting the cases it prevents the ICC from intervening with the affairs. This enshrines sovereignty and reinforces the authority of the state. No matter how just they thought their cause to be, the war criminals cannot escape the long arm of the law. At the end of the day, children are not meant to be vehicles for war – they are to remain just that, children.