Although instructed by the Appeals Chamber of the International Criminal Court not to address issues of gravity with respect to admissibility of a case when an arrest warrant is being issued (see Prosecutor v. Ntaganda (Case No. ICC-01/04), Decision on the Prosecutor's Application for Warrants of Arrest, Article 58, 13 July 2006), the recent application for arrest warrants with respect to Sudanese rebels who attacked peacekeepers contains an interesting discussion of the matter (see: Situation in Darfur, The Sudan (ICC-02-05-162), Summary of the Prosecutor's Application under Article 58, 20 November 2008, para. 7). The justification comes from the introductory paragraph of article 8 of the Rome Statute: ‘in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes’. The Prosecutor says this phrase should not be construed narrowly, the issues of the nature, manner and impact of the attack are critical’.
The pending application alleges an attack intentionally directed at international peacekeepers, resulting in 12 deaths and 8 severe injuries, as well as property damage. The application insists upon the importance of the crime of intentionally directing attacks against peacekeepers. It is noteworthy that this crime is one of the innovations in the Rome Statute.
The discussion makes an interesting contrast with the statement issued by the Prosecutor on 9 February 2006 explaining his decision not to proceed with investigations in the case of willful killings committed by British troops in Iraq. He said: ‘The number of potential victims of crimes within the jurisdiction of the Court in this situation – 4 to 12 victims of wilful killing and a limited number of victims of inhuman treatment – was of a different order than the number of victims found in other situations under investigation or analysis by the Office. It is worth bearing in mind that the OTP is currently investigating three situations involving long-running conflicts in Northern Uganda, the Democratic Republic of Congo and Darfur. Each of the three situations under investigation involves thousands of wilful killings as well as intentional and large-scale sexual violence and abductions…’
The strictly quantitative focus of the Office of the Prosecutor at the time was also reflected in public statements explaining why arrest warrants had been issued against the rebel Lord’s Resistance Army leaders but not against military officials of the Ugandan forces.
This new appreciation that issues of gravity in case selection have a qualitative as well as a quantitative dimension is welcome. Perhaps it is now time to revisit the Iraq situation. There is an arguable case that killing innocent civilians as a consequence of an aggressive war in violation of the Charter of the United Nations is also a serious matter, perhaps just as serious as killing a comparable number of peacekeepers. Killing civilians was a war crime long before anybody had given any thought to special criminalization of attacks on peacekeepers.