Sidharth's Blog : Providing Legal Aid during War

Providing Legal Aid during War

At the very primary level it is important to make it clear that a conflict means a disagreement between people with opposing opinions or principle.¹ It can be of different levels be it intrapersonal, interpersonal, intergroup or interorganisational² and it cannot be restricted to just a group of people but can extend up to countries or group of countries resulting in wars. It can be at its lowest- disagreement between spouses or the most extreme – war. It is the most crucial time where one needs the help of laws in order to get what is required in a well civilised society. As the broader theme revolves around the international aspect. Generally, in international wars the issue of legal aid arises when war crimes have been committed (with certain exceptions where it’s during and pre-war too) by the country involved in the war.

As far as codes and conducts of wars are concerned it is one of the oldest codes defined in the Mahabharata too that codifies the rule of war, like no war after sunset, no attack on injured opponent¹⁸. Similarly in modern times we have four Geneva conventions and three additional protocols to codify war crimes.

Being insightful and practical, Kautilya emphasised on the need of treating the defeated people and their kings with kindness. He assured them that their animals would be secure, and that those who "possessed of good treasury and army" would be reinstated.¹⁶

Similar to what is allegedly said in the Manu Smriti, international humanitarian law prohibits attacking people during times of conflict. Manu states explicitly that "one who surrenders or is without arms or is sleeping or is naked, or with hair united (i.e. unprepared) or an onlooker (non-combatant) must never be killed," regardless of the opponent's beliefs or lack thereof, or if he was engaged in a just war.¹⁷

In accordance with article 147 of 4^thGeneva convention war crime can be defined as one in which customs and laws of war are violated, atrocity against individual or property, unlawful confinement of person protected under law, deporting civilians for slavery ill treatment or murder of civilians, ill treatment, murder of war prisoners, hanging or killing without due procedure, torture ill treatment or biological experiment on common people, unnecessary military destruction.³

Similarly acts prohibited under article 7 of Rome statue is also considered as a war crime such as atrocities against the civilians – murder, rape, genocide, slavery, torture, enslavement, crime of apartheid etc. during, pre or post war.⁴

The Convention on the Prevention and Punishment of the Crimes of Genocide (1948) provides punishment of genocide u/a 4 of the code.¹⁵

In the case of violation of the above, comes the prominent role of NGOs because generally after war states usually were not in a condition to work on identifying and proceeding further to forum in order to get justice. Apart from that sometimes they work as a safety valve to those who have committed such activities under some political and social pressure (impunity).

NGO’s central role comes into play before during and after investigation.⁵

Informing others (media, general public) through various mediums of communication in order to get information about victims and providing them representation in legal proceedings, helping them to understand their rights, reach to legal systems and make informed decisions^5a.

Monitoring and documentation of human rights violation and other abuses which act as evidence for further legal actions and advocacy efforts used by NGOs. They can provide information to the Office of the Prosecutor on crimes committed, a particular case, the political and historical background of violations of human rights, or the ability or desire of a state to look into or prosecute crimes. The prosecutor might benefit from this knowledge^5b. The Ukrainian non- governmental organisation has carefully documented 18000 cases in their database. They have an exhausted team members who have investigated war crimes, crime committed in Donbas region in 2014, when separatist group took control of eastern part of country.⁷

Eva Tomic, Director of OHCHR in May 2010, said that working in condition as in Palestine had been a great challenge, these challenges had increased continuity of impunity, that the upholder of war crimes want (violates human rights, unwillingness to prosecute), but their volunteers have done a great job in transferring stories during operation that are against human rights.⁹

Serving as a link between Court and victim, victims generally don’t have direct action to legal remedies as they are one of the vulnerable sections of society. They generally reach to victims and witnesses and inform them about procedures at the court and prepare their work. Even work of documentation and advocacy.^5c

Even if not directly to the prosecutor, they can reach the government or U.N. security council to refer the case to the court.

In case of Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda)⁶ before Court of International Crime in which the Registry of the Court applications to institute proceedings against Burundi, Uganda, and Rwanda for armed aggression that violated the Organisation of African Unity and the United Nations' charters outrightly submitted. Six communications on the situation were received by the prosecutor, including two comprehensive reports from non-governmental organisations. The situation appears to have been the Prosecutor's inspiration to designate it as "the most urgent situation to be followed as a result of the NGOs' reports.

Amnesty International has requested International Court of Crimes for investigation into Israel, Gaza and surroundings in both 2009 and 2014 presented concrete evidences that war and other crimes under international laws has been done by armed group of both Israel and Palestine. ¹⁰

Similarly in 2020 March Amnesty has supported the prosecutor of International Criminal Court against both as from last 50 years they have committed serious offences under human rights and international laws, violations in both Israel and Occupied Palestinian Territory (OPT).¹¹

The role extends up-to providing training to leaders and activists in order to enhance their understanding of human rights law and other conflict resolution mechanisms, doing this to empower communities.

NGOs as amicus curiae have also contributed their part in getting justice delivered to those in need. ICC Code of Professional Conduct for Counsel applies to the amicus curiae, and the court will permit such representation if it deems it necessary for the appropriate resolution of the matter.¹³ Palestinian Centre for Human Rights (PHRC) in march 2020 has submitted two briefs in the court of International Crimes as amicus saying that there is a reasonable basis to believe that in the occupied territory of Palestine (West bank, including East Jerusalem and Gaza strip) international crimes have been committed. Even submitted another amicus on the behalf of the general public of Palestine residing in the Gaza Strip.⁸ Raji Sourani, Director of PCHR in annual general meeting stated that they are consistent in working with ICC and providing video and other witnesses over video conferences and assisting victims to get fair shake.

NGOs establish cooperation with Legal Authorities: To guarantee a coordinated response to legal demands during conflicts, NGOs work with both national and international legal authorities.

Similarly in March 2020 Amnesty has supported the prosecutor of International Criminal Court against both as from last 50 years they have committed serious offences under human rights and international laws, violations in both Israel and Occupied Palestinian Territory (OPT).¹¹

Phillip Luther, Director of North Africa Research and Advocacy mentioned that following decades of war crimes and other crimes against international law committed in the Occupied Palestinian Territories, the decision made by the Prosecutor of the International Criminal Court represents a historic step towards justice. This declaration presents a critical chance to end the pattern of war crimes and crimes against humanity being unpunished.¹²

Apart from lobbying directly to ICC and state in order to admit cases and providing relevant material for the case, NGOs also help in lobbying for change in international, national and regional laws. Numerous forms an NGO will try to adopt in order to get the target in their mind. Letter writing campaign is one of the influential, officials were bombarded with letters. Demonstration is the form which attracts media coverage (conventional as well as social media), as a result NGOs get more support from the public and their demand reaches the public eye, creating a pressure of shame lobbying to get successful. E-mail, petitions through internet site blog and social networks are the new form of lobbying.¹⁴

Concluding with the gist, it can undoubtedly be said that NGOs have their own role in timely and accurate delivery of justice be it at any level. The role of NGOs predominantly comes into the picture in cases where victims are not in a condition to approach the legal authority (court or tribunal) because of lack of awareness of their rights, or some other social and economic constrains they have with them. In that condition, role of legal aid given by NGOs comes into the scene. So, all the activities which are breaching the basic humanitarian ground during wars are considered as war crimes. In that case NGOs have to support victims in different aspects. Starting from collecting relevant information, assisting court in various ways (providing with facts and information along with relevant evidences), serving as a link between victims and courts, working as amicus curiae, training and educating volunteers to assist other victims, even sometimes function as pressure group in case state is in a condition of supporting impunity, lobbying against governments and authorities in order to get a new rule for protection of interest of society at large or humanity. So, not just in legal aid it has a role in overall protection of humanity.