In 1998, a groundbreaking idea turned into reality, and 50 years of debate ended as the first International Criminal Court (ICC) was established as a result of the Rome Statute. This judicial body took shape and created the foundation of a permanent court to prosecute persons that committed war crimes, crimes against humanity and genocide. The idea of an international criminal court came about from many factions. At the end of World War II the Allied Powers responded swiftly after the discovery of crimes committed by the Axis Powers. They therefore created the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis and the Charter of the International Military Tribunal (IMT).
The IMT contained the first definition of crimes against humanity, which would later be included in the Rome Statute and fall under the jurisdiction of the ICC. Specifically in Article 6(c) the definition was as follows: “Crimes against humanity: murder, extermination, enslavement, deportation, and other inhumane acts committed against civilian populations, before or during the war; persecution on political, racial or religious grounds in execution of or in connection within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.”
Shortly after, a similar document was drafted in response to the crimes committed by the Far East Axis powers, namely Japan, labeled the International Military Tribunal for the Far East. These two tribunals laid the groundwork for the prosecution and convictions of soldiers and commanders that committed crimes in World War II. The importance of these tribunals comes in its direct definition of crimes against humanity and war crimes, and the initial recognition for the need of a global criminal system.
The first ever international trials were held shortly after the establishment of these Tribunals. The victorious Allies insisted on the punishment of crimes committed by individuals during the war by both the German and Japanese powers. These courts prosecuted fifty defendants, and several thousand more were prosecuted through occupational tribunals established for less-senior defendants. As the heinous crimes committed by the Axis power’s senior and low level officials became exposed to the world, it was evident that justification for a permanent international criminal court had been established.
Shortly thereafter, two major events happened that would shape the rules and ideologies for international criminal law forever. The first of these events was the 1948 Genocide Convention and then the four 1949 Red Cross Geneva Conventions. The Genocide convention, officially labeled The Convention on the Prevention and Punishment of the Crime of Genocide, laid the groundwork for what has been labeled the ‘most heinous international crime’.
Genocide as defined by the United States Holocaust Memorial Museum is, “[G]enocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.” This convention was formed from the discovery of Adolf Hitler and Nazi Germany’s plan to eradicate the Jewish population in Europe.
The convention is extremely important as it established genocide as a war crime for the first time. This crime later became adopted into the Rome Statute of 1998 as one of the three original crimes that would fall under the jurisdiction of the ICC. The Geneva Conventions that followed continued the trend of establishing laws to prevent crimes during times of war. The four Geneva conventions and the additional Protocols added later built upon the previously recognized idea of International Humanitarian Law (IHL), which, when combined with genocide, formed the three crimes that fall under the direct jurisdiction established in the Rome Statute of 1998 and therefore are prosecutable in the ICC. The Fiji Red Cross Society makes the point, “The Geneva Conventions and their Additional Protocols are part of international humanitarian law—a whole system of legal safeguards that cover the way wars may be fought and the protection of individuals.”
The four conventions covered several different topics as follows: the 1st Convention discussed rules for wounded soldiers on the battlefield; the 2nd Convention covered the wounded and shipwrecked at sea, the 3rd laid rules for prisoners of war (POWs), and the fourth protected civilians under enemy control. Thus Ius in Bello, literally translated as “Oath upon to Wage War” or more accurately, the rules with which war is to be fought, were created. These two conferences also created the first idea of International Humanitarian Law for which the ICC currently upholds.
Despite these laws being established and ratified as a treaty (currently 140 nations are party to the Genocide Convention, and 194 nations have agreed to the Geneva Conventions), there remained no court that could uphold these laws or prosecute the perpetrators that committed these abhorrent crimes against fellow soldiers and civilians. However, in 1993 and 1994, two ad hoc courts were created for specific regions in which it became evident that the rules of the previously stated conventions had been knowingly broken repeatedly by many people involved in these internal conflicts.
In 1993 the International Criminal Tribunal for the former Yugoslavia (ICTY) was created in light of the vicious crimes committed against the civilian population throughout the former Yugoslavia. The ICTY was a unique creation as it marked the first time a court had been established to prosecute individuals who committed heinous crimes against their fellow man in a regional setting. This creation also ended a fifty year system of having the laws and treaties in place to govern the rules during warfare, but no real system to prosecute individuals who broke these laws.
Shortly after the creation of the ICTY, another ad hoc court was being established in the wake of the horrific events that occurred in the African nation of Rwanda in 1994. The shock that embodied the world after the discovery of such a systematic genocide was overwhelming, and the UN Security Council moved quickly to bring the leadership and perpetrators to justice. In November of 1994, through Security Council Resolution 955 the temporary ad hoc court became a reality. The court mirrored many of the same rules established through the ICTY, but the prosecution focused specifically on Rwandans that committed the act of genocide during the terrible and short-lived civil war. These two courts laid the foundation that would later become the Rome Statute and the establishment of the ICC. Some other ad hoc tribunals have been created by the Security Council to deal with local issues, such as Sierra Leone, Cambodia and the Special Tribunal for Lebanon (STL).
Finally in 1998, a Conference was called in Rome to discuss the possibility of a permanent International Criminal Court. Many struggles and oppositions needed to be overcome in order adopt the Rome Statute and create the ICC. Despite all of these differentiating opinions and opposing views several compromises were made, and in the end the treaty passed with a lopsided vote of 120 to 7, with 21 countries abstaining. The most remarkable thing about the Rome Statute and the creation of the ICC was the fact that the treaty required sixty of the signees to ratify it before it would be entered into agreement, and the ICC could be created as an international entity of criminal law.
Many speculated that it would be a decade before this judicial body could be created, but a mere four years later, the 60th state ratified, and the ICC was created. It opened its doors in July of 2002, and by the following March eighteen judges were nominated and the first international prosecutor, Luis Moreno Campo, was elected.
The ICC is currently working on seven open cases in Sudan, Uganda, the Democratic Republic of Congo, the Central African Republic, Kenya, the Republic of Côte d’Ivoire and Libya, with many more situations being monitored for possible further indictments. It took many years of law evolution, and a series of horrendous events to justify establishment of an international criminal court, however, based on the support it received, not only at the Rome Conference, but also the continued ratification by nations, it is evident that the need for the court is considered important by many nations.
The Successes of the ICC
The ICC is a fairly young institution, having only been open and active since 2003. Therefore the institution, like the Tribunal courts before it, have to take into account small successes, especially when dealing with doctrine and law that the court achieves in order to evolve its uses and expand its powers through increased efficiency and reduced state opposition. In order for the court to fully realize its potential, it must show the world that it can be a successful permanent institution in international law with clear standards and goals, as well successful indictments, prosecutions and convictions of heinous war criminals in different parts of the world.
The initial successes of the ICC came quickly and have compounded over time, definitely laying a foundation for what could be an extremely efficient and successful judicial entity. The fact that the Rome Statute passed with such a lopsided victory, despite all of the objections from different sides regarding the semantics of the document, was a major victory in itself. Then, the rapidness of the ratification of the treaty, just four short years after the monumental signing, showed that the need to establish a world criminal court was present. Since the inception of the court, fifty seven additional nations have joined the court, with more coming all the time. The support for the ICC is definitely growing, especially among the smaller nations of the world, as they view the ICC as a support system to their own domestic judicial institution.
When the outline for an international criminal court was established, it quickly became evident that in order for the court to not only appease the reluctant states, but maximize its usefulness on the international stage, the court had to be complimentary. This role of a complimentary institution maintains the domestic jurisdiction of the individual states to prosecute their own criminals if they find the evidence to prosecute as well as possess a functioning judicial body to properly convene a fair and just trial. By limiting the role of the ICC to complimentary, the Rome Statute and the states that are party to the treaty created a last resort institution that will only be utilized if the country is unable or unwilling to prosecute their war criminals. This entails many factors that must each be examined before an indictment or even an investigation is launched by the ICC.
First, is the country’s judicial system intact? Many war crimes are committed during times of civil war, or in the recent case of Libya, the civil war often leads to regime change. If a new court is not established, and the state is therefore unable to launch an investigation or hold a court proceeding, then the ICC can step in as a support unit and take over the case. Also, if circumstances arise that invoke a sense of bias for or against a criminal who is being prosecuted, such as the case of President Al-Bashir of Sudan for the crimes committed in Darfur in which his country will never consider indicting him, then the ICC can step in and takeover the case, as they have done.
In order to determine if the state is unwilling the court needs to examine if the proceedings are impartial, if the criminal is being shielded by government lackeys or whether there is an unjustifiable delay in the proceedings. The role of a complimentary court counts as a success because it limits the authority the court possesses, and it enables the states themselves to take the initiative in prosecuting their own criminals.
By limiting the power of the court, the Rome Statute correctly prevented the court from growing into an unrestricted power. Another success of the ICC is the clearly defined roles that the different organs operating within the confines of the Rome Statute have and how they are utilized to the advantage of the court and the international stage, especially the unique role of judges and the use of the appeals process.
First, the court’s decision making process is common law, which means that judges, and not a jury, decide the fate of the accused based on legal precedence and knowledge of the law. Although this is contrary to the United States legal system, it definitely has its benefits. The common law practice definitely ensures that the rights of the individual, as well as the palpability of the court are handled by professionals. This is very important with an international forum because of the vast differences between hundreds of judicial systems. A civil law court at the international level is simply not practical. By granting the fate of indictees to the judges, a system of checks and balances has also been included in the Rome Statute and is therefore utilized by the court. The appeals system for the ICC creates an atmosphere of fairness and justice that protects all individuals, from the defendants to the victims, of their alleged crimes.
In the ICC an appeal can not only be granted for guilty verdict, but also an acquittal. This additional appeal gives the prosecutor a second chance to submit additional evidence that may change the determination of the judgment. In creating a system in which the court can interpret international criminal law, it has correctly identified the issue that needs to be addressed in order for the court to blossom and reach its full potential. It will need to create a system in which precedence can be established and therefore common law is correctly carried out.
In 2010, a major breakthrough for the court came into existence which has been viewed not only as a display of the flexibility of the states party to the Rome Statute, but a necessary addition to the constantly changing international community. The Conference in 2010 in Kampala, Uganda took direction from the UN Security Council a step further and inducted a definition of aggression based on SC Resolution 3314, and added it to genocide, war crimes and crimes against humanity as a list of possible crimes that fall under the umbrella of the ICC. Although Kampala has not been entered into effect as a treaty yet, it cannot take effect until January 1, 2017, this amendment to the Rome Statute showed the flexibility of the court and its states members to adjust to a constantly changing world. Adding aggression to the list of war crimes ensured that despite the solid foundation from the Rome Statute, the ICC was able to add new amendments that would further extend its jurisdiction and ensure international peace.
Another example of this adaptability occurred in 2009 when a Review Conference convened and stated that an amendment should be considered to include terrorism to the list of crimes falling under the ICC’s jurisdiction. This document called Annex E, laid out a fairly acceptable definition of terrorism, which has been one of the major stepping stones in the process of including it in international criminal law, and went as far as to almost recommend that the Rome Statute should include terrorism as another crime added to the list for ICC jurisdiction. Although the steps have not yet been taken to establish an amendment for a new inclusion, the groundwork has been laid, and therefore the idea of including terrorism has been mulled over. This is just another example of the constant flexibility and adaptability of the ICC and the Rome Statute, which is absolutely essential to the success and survival of the court.
Overall the major successes of the court have been almost exclusively on paper and not in the actual prosecuting or sentencing of criminals, which will be discussed in the next section, the legal precedence, general international acceptance and the adaptability of the court form a foundation and pathway for overall success. The success of the court has not yet been completely realized, but the framework is in place and is constantly adapting to the changing world that should ensure the success of the court in the future.
Failures of the ICC
Despite sufficient groundwork for the ICC laid out through the Rome Statute and amended to include aggression at Kampala in 2010, the ICC in many nation’s eyes has been a failure. Despite the doors opening and becoming fully functional in 2003, just recently, September 2009, the ICC opened its first case, prosecuting Congolese warlord Thomas Lubanga Dyilo. For nine years the court has sat dormant due to several different reasons. When the ICC first opened its doors, it immediately began investigating various situations, especially in Africa for the crimes it was established to enforce. The first elected chief prosecutor, Luis Moreno-Ocampo, an Argentine lawyer who gained fame through exposing Argentine corruption in the Trial of the Juntas, was inaugurated in 2003 and opened cases in regions such as Uganda and the Democratic Republic of Congo. Since that time Ocampo has been widely criticized for his continuous failures and this disappointment has led to reluctance of the states.
Although recently, the trial of Thomas Lubanga Dyilo has been completed and the accused has been found guilty of all charges as of March 14, 2012, this event stands on the doorstep of Moreno-Ocampo’s departure from the role of Chief Prosecutor. When the ICC was established through the Rome Statute it became evident that the role of the chief prosecutor would be essential to the court’s success, and in many ways the successes of the court would mirror the successes of the prosecutor.
This analysis has become accurate, only to the negativity of the court. Moreno-Ocampo’s failures are directly linked to the failures of the ICC in its attempt to become a viable force in the stage of international criminal law. Some believe that Moreno-Ocampo’s attitude and management style are not conducive to the teamwork required in order to increase the fluidity with which the court is run. Due to the lack of success, the funds wasted and the fact that only one trial has been completed, and that taking over three years with sentencing yet to come, some of the failures of the ICC must fall on the chief prosecutor’s shoulders.
Furthermore, when his term comes due in mid-2012, a continued legacy of the Moreno-Ocampo regime will take over duties as the new Chief Prosecutor, Fatou Bensouda, Ocampo’s current Chief Deputy, and an extension of his tenure. Although Ms. Bensouda has been in the Ocampo corner for ten years, she is from Gambia, which may diffuse some of the bias discussed below that so scarred the Ocampo regime. Hopefully, Ms. Bensouda can enlist the help of his subordinates instead of isolating them, and ensure that states follow the jurisdictional guidelines of the court. This brings about another flaw or failure of the ICC.
The ICC depends on the cooperation of the states that have ratified it to turn over suspects, and help in the information gathering process to speed up and actually complete fair and efficient trials. Unfortunately for the ICC, this is not always the case. Specifically, many instances have occurred since the inception of the court where the prosecutor has the evidence, the indictment has been issued, but no trial ensues simply because the indicted is not turned over to the ICC for trial. Therefore the suspect remains at large as an international criminal. This is especially the case with Omar Al-Bashir of the Sudan. Due to the lack of cooperation, heads of states indicted, as well as powerful military leaders continue to purge local populations without having to answer to their crimes. Despite ratification of the Rome Statute, the perception of state cooperation and the actuality of it can be vastly different.
This lackadaisical approach by party states continues to frustrate the court and its process. Something must be done to ensure that criminals indicted by the court appear at the court.
The final major flaw of the ICC definitely stems from the lack of participation by three permanent members of the UN Security council. As of this text, China has not signed the Rome Statute, and neither the United States nor Russia has ratified it. In fact, as of the Bush Administration actions of 2002, the United States actually unsigned it. This lack of participation certainly hinders the ability to enforce the laws instituted by the court. The lack of U.S. participation especially hinders any palpable advancement of the court. Why does the U.S. not support the court?
While the U.S. does deploy many troops overseas each year, full participation from the U.S. and the other permanent members of the Security Council is essential to the survival and effectiveness of the court. Granted veto power for permanent member status, if any of these three powers considers an indictment contradictory to the agenda of their nation, they can veto the indictment and allow the crimes and the perpetrator to go on unpunished.
Not only is the U.S. not signing or party to the Rome Statute, they had established a confrontational approach to the Statute under the Bush presidency. The U.S. has over fifty treaties of such, and is therefore undermining the justice and integrity of the court. Now however, the new adminstration, under President Barack Obama has begun to show some semblance of cooperation to the court and its functions. Although this is a step in the direction of support, the U.S. has not gone as far as signing the Rome Statute, or giving its full-fledged backing. Therefore, the overall lack of Security Council support which still exists, even from the teetering U.S., will need to be resolved in order for the ICC to reach its full potential.
Overall, despite a strong foundation laid out at the Rome Conference, the ICC has had few tangible successes since its inception. Some of this can be attributed to the youth of the court, but much can be realized specifically from the three major flaws previously discussed, the ineptness of the prosecutor’s office, the unwillingness of states party to the treaty to cooperate with the wishes of the court, and the lack of support from permanent members of the UN Security Council which holds veto powers over the cases of the ICC. Due to hindrances such as these, the court has struggled to carve out its niche in the world of international criminal law.
Short-Term and Long-Term Solutions
In order to ensure the long-term success and stability of the ICC, the failures must be addressed, and the accomplishments must be enlisted as a tool for building. Over the next decade, several adjustments must be made in order to secure a foothold in the global world.
The first thing that needs to be recognized about the ICC is the relative adolescence of the court itself. For many institutions, especially those crossing so many international boundaries, it needs to be expected that time will help evolve and shape the future of the institution. When referring specifically to the infancy of the court it helps to examine the early years of other international judicial institutions such as the ICTY and ICTR. When the ICTY and the ICTR were established in 1993 and 1994 respectively, the groundwork for these two institutions was essentially a revolutionary idea, where as a civil war and specifically crimes committed during those civil wars were being punished on an international level. Many people questioned the authority of the UN Security Council to involve itself and establish a judicial system to deal with domestic disputes. Due to these factors, as well as monetary issues, both of these courts, although established quickly, found it hard to secure their foothold on the international stage.
The ICC has faced many of the same problems early on, and with the broadness of its jurisdiction, some of the problems facing the ICC are compounded by sheer convolution of judicial interaction with so many different states. As it stands right now, one of the main goals for the ICC is to prevent itself from becoming irrelevant. Both the ICTY and ICTR struggled in the early stages, but now both are thriving and have become fully recognized functioning institutions of international judiciary law. This influence has just recently gained prominence, and in order for the ICC to mirror the successes of these tribunals, the key will be patience.
The second short term goal of the ICC, in order to maintain relevance and support, is to ensure the new figurehead, Ms. Bensouda, becomes a charismatic figurehead to be the face of the court for many years to come. Moreno-Ocampo has obviously not fulfilled the exorbitant expectations that were placed directly on his shoulders when he ascended to the office of chief prosecutor. Despite the intentions of firm policy and pursuant of miscreants, Moreno-Ocampo’s record has not withstood the enormous expectations placed on him at the time of his election. Instead he has alienated staff and produced little results, while at times being categorized as abrasive or uncooperative.
The next chief prosecutor needs to be charismatic and assertive while simultaneously working in the confines of the international system. This can be a very fine line to walk. On one hand, the authority of the ICC must be upheld, but on the other it also must be understood that the court uniquely deals with many nations, and the diplomacy involved in receiving full cooperation from the parties of the Rome Statute must be a priority.
In other words, the Prosecutor Besouda has an enormous task of not only locating and indicting the correct situations and criminals, but also receiving the full cooperation of the states functioning within the treaty.
In order to become more efficient and therefore successful, some ground rules must be laid by the ICC and the parties of the Rome Statute to ensure the full support of the states. Due to recent events, especially those pertaining to Omar Al-Bashir and the Darfur conflict have exposed the ICC’s weakness on the international stage in regards to persuading states to turn over criminals indicted by the court. The ICC constantly finds itself in a precarious situation, juggling the rules established as a responsibility of the court and the constant interference or agenda of all states, including those states that have ratified and also those that have not ratified the Rome Statute.
In order to ensure the support of the global environment especially the specific parties to the treaty, the next conference needs to reiterate the importance of state cooperation in the apprehension of ICC fugitives. Consequences for disobedience of the Treaty, and therefore breaking international law, such as economic sanctions or aid reduction from other party nations need to be discussed and perhaps implemented in order to ensure that criminals do not go unapprehended indefinitely. This is simply a small step to reaffirm that states which harbor or fail to apprehend fugitives within the confines of their borders must face consequences in the form of international ridicule, as well as possible trade sanctions or aid reduction.
As Demirdjian affirms, this may be difficult, “despite the binding effect of the general legal framework establishing international courts, cooperation with international courts is a delicate topic and generally speaking, it is a fragile scheme considering the lack of enforcment mechanisms” (p.185). This statement implies the need for a permanent policing force directly under the umbrella of the ICC. While this idea may have merits, the reality of states willingly granting the court an international police force is unlikely. Despite the fact that the cooperation of states is included in the Statute, not all states interpret this as such.
In order to enforce the article a conference needs to be called to reiterate and maybe even amend the Rome Statute to take a firmer stance on state cooperation in the apprehension of the indicted, with possible economic sanctions, or loss of foreign aid as possible consequences for insubordination to the treaty. This scenario seems more likely, and may produce positive results through understanding.
A last short term goal for the ICC will involve the long and arduous task of courting the United States to sign and ratify the treaty in order to receive more support and power, enabling the court to function properly. This will not be a simple process, and therefore the short term goals need to focus on simply bridging the enormous gap between the ICC and the United States. The first step in this process should be the acceptance of Annex E into the legal framework of the ICC as an amendment.
Considering the U.S.’s “war on terror” the inclusion of terrorism and terrorist acts as defined in Annex E will provide a basis with which may successfully barriers may be broken between the two parties. Terrorism may be the most explosive threat to all global states, and therefore inclusion into court doctrine seems to be the a natural progression. As Van Krieken states (2002), “That, however, does not mean that one should not prepare for adding terrorism to the list of crimes for which the ICC would have jurisdiction” (p. 109). The court must proceed knowing that the inclusion of terrorism under its jurisdiction will not instantly convince the U.S. to sign and ratify the treaty. It may be a small step towards creating an atmosphere of bilateral thinking opening the waves of diplomacy and communication for both parties.
Since the U.S. has gone out of its way to isolate countries through separate treaties even with those party to the Rome Statute, but recently showed some signs of bending toward the jurisdiction of the court, the court must find a way to deter American disapproval of the jurisdiction of the court. Including Annex E as an amendment to the Rome Statute may be the first step in the long courting process of the U.S. and possibly the UN Security Council.
The face of the ICC for the long-term remains extremely convoluted. The willingness to adapt to the wishes of the majority of the permanent members of the UN Security Council remains its most compelling and arduous task. Bridging the gap between powers such as the United States and China will ultimately make or break the court in the long run. In certain circumstances the wishes of these major powers may need to be compromised and included for the court to reach its full potential. This is a fine line considering the court must also uphold its own authority and integrity. The court needs to broaden its spectrum in regards to intercontinental examination. Currently all of the cases being brought before the court are located in Africa. Now, as some Africans claim bias, the turmoil in Africa is no secret.
While this charge may be unfounded, it is definitely an issue that needs to be addressed. With the election of an African Chief Prosecutor, the court has definitely addressed those intitial concerns. Furthermore, the indictment of war criminals in other parts of the world, for example, Afghanistan, Burma, Honduras or Palestine, the court must make it a priority to shake the label of being a lackey to the West.
These long-term goals, while complicated, must be addressed with concern to the evolution of the court. The goals of the ICC will absolutely need to focus on bringing criminals to justice, successfully prosecuting them, and sentencing them for the crimes committed during times of war. Ultimately without successful prosecution the ICC will continue to face international opposition, and therefore this must be their main priority.
The successful prosecution of Lubanga Dyilo is a start. However, in order to continue to receive support and possibly enlist new support, the ICC must complete the task it was established to do, and that is convicting war criminals of the atrocious crimes they have committed. The other short term solutions suggested above will only increase the efficiency and success of the court, but ultimately judgment of the court will lie in the hands of its ability to function cohesively.
Throughout the history and evolution of an international criminal court from World War II on, the need has never been a debatable topic. The need, due to the inevitability of humans acting inhumane towards their fellow man, especially in conflict areas, will always be present.
Overall, the ICC needs to be examined in the perspective of its context. It is an adolescent institution that must function in an international system without full global support and especially lacking in support from major global powers. This can be a very precarious situation to bridge and maintain. However, success will be the foundation of its power. The more successful and justifiable cases that are brought and handled before the ICC, the more that its niche in the international stage will be carved. When this occurs, major powers such as the U.S. and China can ill afford to ignore the criminal court.
In order to do this, the ICC will need to be willing to be flexible, but simultaneously relevant, as well as find a charismatic champion to become the face of the court, and revert back to some of the fantastic foundations from which the Rome Statute was derived. If all of these things can be accomplished, and the ICC can successfully complete cases and see things through to the end, then the importance of the court will only grow exponentially in the global forum.