On the 5th April 2025 the 2025 IBA War Crimes Committee Conference was held in Den Haag. In short, war is raging internationally, and armed conflict has become a mainstay of our endless news cycles. The most prominent wars on our news feeds are as divisive among global communities than can be remembered in recent history. It is against this backdrop that the IBA War Crimes Conference was held, and it is against this backdrop that citizens across the globe now seek accountability from international law practitioners.
The following themes ran through the panels of the day:
The impact of the current geopolitical landscape on the reality of International Criminal Law.
The stance taken by the US in deliberately opposing the ICC, accusing the Court of engaging “in illegitimate and baseless actions targeting America and our close ally Israel. The ICC has, without a legitimate basis, asserted jurisdiction over and opened preliminary investigations concerning personnel of the United States and certain of its allies, including Israel, and has further abused its power by issuing baseless arrest warrants targeting Israeli Prime Minister Benjamin Netanyahu and Former Minister of Defense Yoav Gallant.” and leading to US sanctions against the Court and its officers is, obviously, a very real change to the global environment in which the Court must operate.
It was discussed that adopting a defensive approach in order to appease the US would likely degrade the utility of the ICC to a point where it would cease to have any function meriting its continued existence. This may also be difficult to do given the stance that the court has taken with warrants in the Ukraine and Gaza situations.
There is understood by some to be a very real danger that the ICC may not survive the Trump administration.
It is also acknowledged that, in certain quarters, the ICC is sometimes seen as an imperial project of the West. The international courts are under pressure, in part because, by their very nature, they are selective. They are unable to respond to the scale of the crimes being perpetrated globally, they have no effective executive arm, a limited mandate and, yet, great expectations heaped upon them.
The question of how much domestic courts can assist in the process was discussed and it was suggested that any solution would require supernational, transnational and domestic authorities acting in unison.
Funding and, specifically, the effect of USAID being cut off
Those individuals who, following the onset of conflict, have become indigenous professional documenters, supported by USAID-funded projects, in jurisdictions that may be of interest to ICL, such as Myanmar, will have to support themselves by other means which will undoubtedly affect the breadth and reach of their work.
This will degrade situational awareness and evidence-gathering in these jurisdictions. Outside media professionals who attempt to fill this gap are likely to find themselves beholden to armed groups for access. This puts them potentially under the control of the agenda of those groups who can dictate where and what can be reported.
Even some recent ‘success’ stories, such as the Special Court for Sierra Leone which, while not perfect, has generated a peaceful and democratic state (having now been through multiple elections). Gambia is closest to replicating this process, but the loss of USAID may damage this ambition. It is extremely likely that some NGOs will not survive the lack of USAID.
What should the focus of the International Criminal Court be moving forward?
There was a contention running throughout the conference that the focus of the ICC on the prosecution of heads of state is a narrowing of the Court’s scope. Furthermore, the opinion was expressed that the Court should look outside of political and military structures and into economic actors. It was posited that the Court has tended to attempt to prosecute high-profile individuals rather than systems that facilitate the crimes and enable those states to relapse into kleptocracy; behind every dictator is an army of bankers, financial institutions and lawyers, without which their activities would not be possible. Also, the international arms trade is seen as a major facilitator in crimes against humanity.
There is a legal basis for this action in Article 25.3 of the Rome Statute which states that
“a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person…in any other way contributes to the commission or attempted commission of such a crime”
There is also normative support for bringing such prosecutions such as; UN fact-finding in DRC, Special Rapporteurs in Myanmar, Dutch court judgements re arms supply in Sierra Leone, Nicaragua’s actions vs Germany at the ICJ for support of Israel, and the Application at the ICJ vs UAE for complicity in genocide in Sudan.
There were different threads of discussion as to what a focus on facilitators might look like:
- The international arms trade, including Illicit arms traders, corporations who knowingly export into conflict jurisdictions and State officials who facilitate arms trafficking.
- Banks and other financial institutions.
It was claimed that ICL should play a critical role in calling out trade and economics that upholds and enables global atrocities.
Starvation
A very interesting update was given on the progress made in advancing the accountability of Starvation as a crime under International Humanitarian Law. Starvation is often used for the systematic targeting of populations as seen in examples from Tigray through to Ukraine. It often occurs in non-international armed conflict.
Dealing with evidence and disinformation in the digital age
The delegates held fascinating discussion on the problems and benefits surrounding the quantity and quality of digital information/evidence in the age of social media where everyone with a smartphone is a sensor/collector.
Forethought with regard to procurement and logistics are essential for collection exercises due to the storage and processing power required and therefore the space, expertise, electrical power, redundancy, cooling, etc, needed for what can become mammoth projects in a very short space of time.
It was also stated that age-old tactics of deception and misinformation are being used with updated technology by parties involved in conflict the world over. This is leading to the decay of public trust in visual information. It was however added that ‘deep fakes’ can be evidence too and should be collected as part of any information/evidence gathering exercise. The important question when it comes to integrity and reliability of information used as evidence is ‘When do you start testing?’. Too early in the process makes it a Herculean task, too late and you might be relying on unreliable information.
This session was complemented by two incredibly interesting discussions, one on Archiving of information/evidence going back to 2014 and the other on two example of investigative case law by a national prosecutor’s office.
The considerations discussed at the conference will be at the forefront of how international criminal law operates in the short and medium term. Without a doubt, there is an expectation from global citizens for justice and accountability, regardless of which side of a conflict you sympathise with, and it is clear that the IBA and its members will be in the vanguard of delivering this.
We would like to thank the Conference Co-chairs, Kirsty Sutherland of 9BR and Elsa Wyllie of Wyllie Law, for the hard work and deliberation that went into producing such a fascinating conference and the opportunity to contribute from our learned experience in War Crimes Investigations.
