Law: Is the prosecuting of leaders for war crimes flawed because only less powerful figures can be brought to trial?

Note: The following article was written by Ronitth Vasani, L6B (20VasaniR@students.watfordboys.org)

Ever since the Nuremberg Trials inaugurated modern international criminal law (ICL) under the shadow of "victor’s justice," the prosecution of war crimes has wrestled with an ongoing paradox: the formal commitment to universal, impartial justice existing within a system which advocates a Westphalian state. Article 27 of the Rome Statute explicitly codifies the irrelevance of official capacity, asserting that head-of-state status provides no defence against accountability for serious breaches of international law. Yet, still many contend that the reality of international tribunals reflects Realpolitik rather than legal egalitarianism, functioning as an instrument wielded by dominant states against politically weak nations, or even used as a method of “securing” a victory after active conflict.

Overall, the despite the clear lack of structural legal symmetry, most identifiable through institutions such as the UNSC and the refusal to ratify the Rome Statute by numerous superpowers (in the interest of retaining national sovereignty), this arguably does not render the utility of international criminal law and associated bodies such as the ICC to be nil, but rather methods through which partial, and flawed justice are delivered, but still superior to total sovereign impunity.

With respect to the argument that prosecution for war crimes is indeed fundamentally flawed, there is much evidence corroborating the statement. The enforcement architecture of international law is structurally reliant on state power, enabling powerful nations to protect their leaders and t allies from prosecution while directing legal scrutiny toward weaker leaders/figures.

This is perhaps best illustrated via the mechanisms of the Rome Statute, wherein under Article 13b, the ICC can exercise jurisdiction over non-signatory states after a “referral” by the United Nations Security Council (acting under Chapter VII). However, the fundamental issue with such a system naturally arises from the structure of the UNSC itself; the permanent five (i.e. the UK, US, Russia, China and France) all retain veto power, and can choose to exercise it in the scenario wherein their own/their allies conduct is questioned by other states. This undermines the principle of legal egalitarianism established under codified international law, meaning that often, the threat of the veto prevents any dissenting motions from even being tabled, and as such, it is only non-aligned nations that are consistently referred to the UNSC, such as Darfur in 2005 (under Resolution 1593) and Libya in 2011 (under Resolution 1970).

In the Melian Dialogue, for instance, Thucydides states, "the strong do what they can and the weak suffer what they must" ; a principle reiterated by Hans Morgenthau who says international law is subservient to the interests of the state, not a separate moral authority. The doctrine of legal exceptionalism is based on this logic, whereby, according to Carl Schmitt, sovereignty consists in deciding "the exception" and enables dominant states/figures to exclude themselves from global legal standards while using these legal standards against subordinate states.

Weaponisation of these legal standards ties into Dr. Judith Shklar’s argument within his work, “Legalism” , in which he argues that war crime prosecutions oft risk descending into “victor’s justice”, perhaps best displayed at the Nuremberg and Tokyo Tribunals, where Axis Leaders such as Hideki Tojo and Hermann Goring, were rightfully tried for crimes against humanity; but Allied Leaders responsible for atrocities such as the use of nuclear weapons at Nagasaki and Hiroshima, as well as the debated carpet bombing of Dresden in 1945.

Political power, historically, has shielded powerful figures from influential nations, thus effectively removing legal scrutiny from certain individuals despite committing crimes which leaders from smaller/politically weaker nations would indeed be prosecuted for. Even in the first 10 years of the ICC’s existence, its investigations only concerned African Nations, despite significant backlash on Western Nations for the invasion of Afghanistan and Iraq, certainly undermining the utility of international law.

However, to argue the contrary, while there is certainly operational imperfection within prosecution of leaders for war crimes, this does not inherently invalidate the law. As Fuller posited in his seminal work “The Morality of Law”, even if a legal system does not achieve immediate and uniform enforcement, partial application of the system does not invalidate the substance of the law/norms.

Hans Kelsen, in his work “Peace Through Law” builds upon this idea, arguing that international law, currently created and enforced through loose treaties, develops from this decentralised state, to one in which a centralised global community is created incrementally, by shifting firstly responsibility from the collective (i.e. the state itself, such as the Treaty of Versailles) to individual statesmen.

Clearly, despite the current system being imperfect, one may argue that this is simply a stage of development in Kelsen’s vision for eventual global peace via centralisation, proven via greater willingness of international bodies to prosecute former and sitting heads of state, previously protected under customary international law.

Landmark rulings such as in 1999’s (R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 3) established precedent that grave breaches of international law strip away this immunity from heads of state, as such actions cannot be considered legitimate functions of an independent state, corroborated by Article 27 of the Rome Statute, decoupling individual liability from national sovereignty.

This is best displayed by the recent willingness of the ICC to issue arrest warrants for sitting heads of state for nations which wield significant international political influence, such as the 2023 Arrest Warrant issued for Russian President Vladimir Putin, over war crimes in the Ukraine(directly challenging a member of the P5 of the UNSC) , as well as the 2024 warrant against Israeli Prime Minister Benjamin Netanyahu. Arguably, both serve as an example of international criminal law not being an inherently broken instrument of the strong against the weak.

In conclusion, the argument that prosecuting leaders for war crimes is fundamentally flawed because only less powerful figures face trial only tells half the story. It is undeniable that international criminal law operates within a world driven by power politics. Powerful states still manage to shield themselves and their key allies from legal scrutiny, creating an obvious imbalance in who actually ends up being prosecuted.

To properly judge whether international criminal law is flawed, it is essential to separate its core legal principles from its practical enforcement. In domestic legal systems, no one argues that laws against organized crime are completely useless simply because powerful mob bosses often manage to avoid prison. The failure to prosecute every single powerful offender is an enforcement problem, not proof that the legal system itself lacks value.