Professor Ohlin led a fascinating discussion about international criminal law with a focus on war crimes. As one would imagine with legalese, there is a lot of gray area with interpreting the letter of the law. One of the major ways to determine if a war crime was committed is to determine if the death of civilians was justifiably proportional to the killing of military targets. In times of war, it can be argued that civilians killed as collateral damage is proportional to destroying an enemy military base. Of course it is all relative. Destroying a hospital can not be justified to kill just one soldier with a gun.

One of the major issues recently is the destruction of a hospital by US armed forces and reports and testimony state that the deadly airstrike was a mistake. Doctors without Borders, the organization that heads that hospital, are calling for the US to be charged with a war crime. Are they justified? It is still early days in trying to figure what exactly happened and an independent investigation would be needed to ascertain the circumstances of the incident. Whatever what may be case, whether it was due to the request of a support airstrike from a support ground commander or preplanned due to previous intelligence, the death of 22 people and many who were wounded is a large amount of collateral damage and may amount to a war crime if it is found to not be proportional. However, charging the US with a war crime would not be an easy process. A prosecutor in the International Criminal Court (ICC) may not necessarily bring the charges of a war crime against the United States if additonal evidence is not found because the proportionality argument can not stand on its own due to the inherent ambiguity.

Even if proportionality and sufficient evidence is available for countries committing war crimes and crimes against humanity, the ICC has limited enforceability as it depends on the cooperation of the various governments. Just recently, the South African government failed to arrest al-Bashir, who was indicted by the ICC and had an arrest warrant for him. The South African government even disobeyed an injunction from a local judge demanding for the arrest of Bashir. Because the South African government failed to fulfill its obligations, it would receive consequences from the UN Security council, but they have not actually done anything. Essentially the hands of the ICC are tied in this situation since al-Bashir would need to venture out of his country in order to be arrested. Additionally, there was the dilemma of whether an arrest warrant issued by the ICC outweighs diplomatic immunity as a head of state, the latter of which is ensured under international criminal law.

It is evident that while international criminal law is designed to protect civilians and limit unwarranted damage, it is ambiguous and limited in its enforceability. Countries would need to respect the ICC (and the ICJ) enough to compile with indictments and arrest warrants; currently that is not the case and South Africa is not even being punished, which is cause for concern because it may show that the international law can be flouted. How would you ensure international law is effective and enforced properly?