Crimes currently being prosecuted or under investigation by the International Criminal Court all involve Arab or African countries, save the Ukraine. European countries have largely escaped ICC scrutiny. However, the refugee crisis in the European Union has created a factual scenario that may, if it has not already, devolved into the commission of a crime against humanity. Specifically, those countries which have already closed off their borders to staggering numbers of beleaguered refugees, many of whom are children, woman and others who are ill and all of whom are certainly hungry and cold, have opened the jurisdictional Pandora's box.
Above is a map showing refugee routes and border closings, and below is a timeline in brief:
October 17, 2015 Hungary closed its Turkish border, building a fence topped with barbed wire, to preclude the refugee route to Germany, the country of preference amongst refugees[i].
October 19, 2015 Germany threatened to close its borders in response to a lack of agreement as to support by the European Union and suspends compliance with Schengen Agreement allowing for free travel to those lawfully within the European Union[ii].
October 24, 2015 Slovenia stated it will follow Hungary’s lead and close its border to the nonstop influx of refugees at a cost of 80 million Euros; money that could be better spent on humanitarian relief[iii].
October 25, 2015 Bulgaria, Serbia and Romania threaten to close their borders if Germany closes its own border; perhaps with the understanding that Germany was the preferred country[iv].
October 28, 2015 Austria indicates it will be closing its border[v].
October 31, 2015 Austria and now Slovenia stated they are closing borders necessary for refugees to pass through to the northern and Western European countries creating panic amongst the refugees and spurring divisiveness within the European Union[vi].
October 31, 2015 Germany indicated that is overwhelmed by the flow of refugees and is limiting the number of entry points to five where 50 refugees can be processed per hour at each entry point[vii].
October 31, 2015 The voice of reason appears in the form of a joint statement issued by Union Nations Secretary-General Ban Ki-moon and International Committee of the Red Cross President Peter Mauer. Citing 60 million people having been displaced as a result of armed conflict:
They called on states to do the following to help bring about peace:
■ rein in armed groups and hold them accountable for abuses, and stop the use of heavy weapons in populated areas
■ protect and assist displaced people fleeing insecurity, and help to find long-term solutions
■ ensure unhindered access to medical and humanitarian missions
■ condemn those who violate international humanitarian law
■ redouble efforts to find sustainable solutions to conflicts (Emphasis Added) [viii]
That statement most certainly contained less than veiled hints that crimes against humanity were being committed in violation international human rights law[ix], specifically the Geneva Conventions of 1949, the most relevant of which is the Fourth Geneva Convention[x], the Rome Statute of the International Criminal Court[xi], especially the Elements of Crimes, and the International Declaration of Human Rights[xii].
Both the Geneva Convention and Article 14 of the International Declaration of Human Rights guarantee the right to political asylum to which all 193 members of the United Nations are bound by to uphold. The most egregious violations of these treaties are considered crimes against humanity.
The International Criminal Court has 123 member nations and investigates and prosecutes genocide, crimes against humanity, war crimes, and the crime of aggression. For there to be jurisdiction for the prosecution of a crime against humanity under Article 7, there must an intentional act meeting the Element of Crimes, otherwise known as a prima facie case.
Under Article 7, a "crime against humanity" includes “any inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health”, as well as ”persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court.” In this case, there is a universally recognized right to seek political asylum.
The statement issued by Mr. Ki-moon and Mr. Mauer outright called for the condemnation of those who violate international humanitarian law. Condemnation is commonly defined as censure, to pronounce guilty, punishment and sentencing. Certainly, if the practice of closing off borders continues, the ICC has jurisdiction to investigate and prosecute those responsible.
[i] Hungary closes border to refugees as Turkey questions EU deal to stem crisis." October 17, 2015, The Guardian, as found on the www at http://www.theguardian.com/world/2015/oct/17/hungary-closes-border-to-refugees-as-turkey-questions-eu-deal-to-stem-crisis ("Hungary has closed its border with Croatia to refugees in a bid to block the path of streams of migrants desperate to get to northern Europe as a European deal to stem the crisis looked precarious."),
[ii] Huggler, Justin, "German MPs 'drawing up plans' to close borders in challenge to Merkel's refugee policy", October 19, 2015, as found on the www at http://www.telegraph.co.uk/news/worldnews/europe/germany/11941466/German-MPs-drawing-up-plans-to-close-borders-in-challenge-to-Merkels-refugee-policy.html ("Group of 188 MPs including many from chancellor's own party have reportedly prepared laws to fence off sections of Germany's border
German MPs have reportedly drawn up plans to close the country’s borders in a direct challenge to Angela Merkel’s refugee policy. The move is the latest threat to the Schengen Agreement on border-free travel in continental Europe."
Germany has suspended the Schengen Agreement and imposed temporary border controls in an attempt to slow the influx of refugees.").
[iii] Batchlor, Tom, "Slovenia threatens to CLOSE borders with HUGE fence to stem flow of migrants", October 24, 2015, Sunday Express, as found on the www at http://www.express.co.uk/news/world/614352/migrant-crisis-slovenia-close-borders-to-stop-refugees-Miro-Cerar
("SLOVENIA has threatened to close its borders to stem the seemingly endless flow of migrants, as tens of thousands continue to stream into the country. The small nation would become the second country in Europe to erect a razor-wire fence in response to the crisis, following Hungary's lead last month.
The cost of erecting a fence along Slovenia’s 670km-long border with Croatia would be about €80 million (£58million).
Slovenian police claim more than 50,000 asylum-seekers have entered in the last week since the flow of those heading toward Western Europe was diverted by Hungary's decision to close its border with Croatia.").
[iv] "European refugee crisis: Balkan countries threaten to close borders if Germany does", October 25, 2015, Sydney Morning Herald, as found on the www at http://m.smh.com.au/world/migrant-crisis/europe-refugee-crisis-balkan-countries-threaten-to-close-borders-if-germany-does-20151024-gkhq17.html ("Bulgaria, Serbia and Romania said on Saturday they would close their borders if Germany or other countries do the same to stop refugees coming in, warning they would not allow the Balkan region to become a buffer zone for stranded migrants.").
[v] Merrill, Jamie, "Refugee crisis: Last influx to fortress Europe cross Austrian border before route closes", October 28, 2015, The Independent, as found on the www at http://www.independent.co.uk/news/world/europe/refugee-crisis-last-influx-to-fortress-europe-cross-austrian-border-before-route-closes-a6712666.html ("As the EU hardens its heart to refugees, a few thousand more make it into Austria before barrier is erected
This is not human; we are not animals,” said Kawphar Zangana, an Iraqi refugee and father.")/
[vi] Harrison, Emma, "Still the refugees are coming, but in Europe the barriers are rising", October 31, 2015, The Guardian, as found on the www at http://www.theguardian.com/world/2015/oct/31/austria-fence-slovenia-wire-europe-refugees ("Austria and Slovenia have said they will erect fences to stem the flow of migrants. As countries seek national answers to a regional crisis, what happened to solidarity in Europe?
Governments have replaced talk of closer cooperation with threats of a more visible separation, warning that they are considering blocking off their borders in a region meant to be growing closer under the EU, not pulling apart.
Just a day later, Austria issued its own notice that it planned to throw up barriers along the border with Slovenia, although chancellor Werner Faymann insisted they would be to control the flow of refugees more effectively rather than stop anyone entering the country.").
[vii] "Migrant crisis: Germans restrict entry points from Austria", October 31, 2015, BBC News, as found on the www at http://www.bbc.co.uk/news/world-europe-34683056 ("Germany is to restrict the number of entry points for migrants arriving via Austria, in a bid to control the flow as thousands cross into Bavaria daily.
Earlier this week, German Interior Minister Thomas de Maziere accused Austria of transporting refugees to the German frontier at night, leaving them there unannounced.
The UN estimates that more than 700,000 migrants have crossed to Europe by boat so far this year - many of them refugees from war-torn Syria. The approach of winter has so far done little to slow the flow.").
[viii] "UN and Red Cross scold world leaders over 'conflict paralysis'", October 31, 2015, BBC News, as found on the www at http://www.bbc.co.uk/news/world-europe-34690546 (“The heads of the UN and Red Cross have issued a rare joint rebuke to world leaders, accusing them of "disturbing paralysis" in the face of conflict.
"This flouts the very raison d'etre of the UN," its chief, Ban Ki-moon, said.
International Committee of the Red Cross (ICRC) President Peter Maurer said the world had rarely witnessed so much suffering and instability.
They urged immediate concrete steps to ease the plight of civilians in places like Afghanistan, Nigeria and Syria.
Rarely before have we witnessed so many people on the move," Mr Maurer told reporters at a joint news conference with Mr Ban in Geneva on Saturday.
He said some 60 million people globally had been displaced from their homes because of conflict and violence - "the highest figure since World War Two".
In a statement, the two leaders said today's wars were be of basic humanity".
Mr Maurer said this applied to combatants in the conflicts in Afghanistan, Iraq, Nigeria, South Sudan and Yemen.
"Every day, we hear of civilians being killed and wounded in violation of the basic rules of international humanitarian law, and with total impunity. Instability is spreading. Suffering is growing. No country can remain untouched," he added.”).
[ix] “Treaties and customary law: overview”, October 29, 2010, International Committee of the Red Cross, as found on the www at https://www.icrc.org/eng/war-and-law/treaties-customary-law/overview-treaties-and-customary-law.html (“International humanitarian law is based on a large number of treaties, in particular the Geneva Conventions of 1949 and their Additional Protocols, and a series of other conventions and protocols covering specific aspects of the law of armed conflict. There is also a substantial body of customary law that is binding on all States and parties to a conflict.
The core of IHL is the Geneva Conventions. The initial text of 1864 was revised and recast in 1906 and again in 1929. Their current version was adopted on 12 August 1949, in the wake of the Second World War, and is now known as the “four Geneva Conventions”. They have achieved universal ratification.
The First Geneva Convention of 1949 covers the protection and care for the wounded and sick of armed conflict on land.
The Second Geneva Convention concerns the protection and care for the wounded, sick and shipwrecked of armed conflict at sea.
The Third Geneva Convention relates to the treatment of prisoners of war.
The Fourth Geneva Convention concerns the protection of civilians in time of war.
Since 1949 three Protocols have been added to the Geneva Conventions. Additional Protocol I of 1977 relates to the protection of victims of international armed conflicts. Additional Protocol II of the same year covers the protection of victims of non-international armed conflicts.
Additional Protocol III of 2005 created a new protective emblem, the red crystal, alongside the existing red cross and red crescent.)
[x] International Committee of the Red Cross (ICRC), Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 12 August 1949, 75 UNTS 287, available at: http://www.refworld.org/docid/3ae6b36d2.html [accessed 2 November 2015], as found on the www at https://www.icrc.org/applic/ihl/ihl.nsf/ART/380-600014?OpenDocument.
[xi] Rome Statute of the International Criminal Court, 2187 U.N.T.S. 90, entered into force July 1, 2002, as found on the www at http://www1.umn.edu/humanrts/instree/Rome_Statute_ICC/Rome_ICC_toc.html. See also Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949 as found on the www at https://www.icrc.org/applic/ihl/ihl.nsf/Treaty.xsp?documentId=AE2D398352C5B028C12563CD002D6B5C&action=openDocument (“Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.”).
[xii] Universal Declaration of Human Rights, G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948), as found on the www at www.un.org/en/documents/udhr/. The Universal Declaration of Human Rights was drafted by the United Nations Commission on Human Rights in 1947 and adopted by the General Assembly on December 10, 1947.