International justice and the rise of the "super court"

Photo by Alkan de Beaumont Chaglar, Flickr

We have mentioned the ICJ – the International Court of Justice. The ICJ is the UN body which is responsible for adjudicating disputes between states. Examples include border disputes; maritime disputes (states’ rights to defense and fishing in different parts of the ocean), and some extradition hearings. It also renders advisory opinions to UN bodies and other authorized agencies.

Here we are concerned with the courts that deal with the most serious human rights violations, like crimes against humanity and genocide.

The first of these courts was set up after the Second World War, when the US, UK, France and the Soviet Union instituted the Nuremberg trials – the trials of Nazis involved in the war and in the Holocaust, in which six million Jews were murdered. An International Military Tribunal for the Far East was also established in Tokyo for the purpose of punishing the leading Second World War criminals.

The Nuremberg trials came to an end in 1946. For over 50 years during the Cold War, there was peace between European states. But in the 1990s the collapse of the former Soviet Union (USSR) led to the breakup of Yugoslavia and the creation of six new states. New wars erupted between ethnic groups in the new states and between the states that were created out of Yugoslavia.

Violence in Serbia, Bosnia and Croatia was especially savage, and included mass rapes, concentration camps and genocide. These wars led to renewed consideration of an international justice body.

The International Criminal Tribunal for Former Yugoslavia

In response to the violence, the UN Security Council created the International Criminal Tribunal for Former Yugoslavia (ICTY) in 1993. This was the first war crimes court since the Second World War.

The ICTY is based in The Hague, Netherlands. It is responsible for trying people from all ethnic groups accused of committing atrocities during the wars that followed the breakup of Yugoslavia.

The ICTY has charged 161 people, including the former Yugoslav president, Slobodan Miloševic. Over 130 of those accused have appeared before the court, and – at the time of writing this toolkit – 40 had been found guilty.

Slobodan Miloševic was accused of over 60 counts ofgenocide,crimes against humanityandwar crimescommitted inCroatia, Bosnia and Herzegovina and Kosovobetween 1991 and 1999. These crimes affected hundreds of thousands of victims throughout the former Yugoslavia. His indictment and trial lasted several years and, in a dramatic turn of events, he died of a heart attack in the ICTY detention center located in The Hague, Netherlands, shortly before his defense case was completed.

The International Criminal Tribunal for Rwanda

In 1994, the genocide in Rwanda prompted the UN Security Council to establish another tribunal, the International Criminal Tribunal for Rwanda (ICTR), to try people responsible for the slaughter of 900,000 Tutsis and moderate Hutus.

The ICTR has its headquarters in Arusha, Tanzania. The court has charged 59 people, including cabinet ministers, army leadership, politicians and journalists. It has dealt with 26 cases and several people have been found guilty of genocide.

Other special courts

Internal conflict, oppression and mass murder in other countries have also led to creation of special courts. These courts are mixed tribunals that combine international agencies and national government structures, and are part of the countries’ transition to democracy and peace.

Special courts have been set up in Sierra Leone, Kosovo, Cambodia, Timor-Leste, Bosnia and Lebanon.

The International Criminal Court

The International Criminal Court (ICC) – sometimes referred to in the media as the “super court” – is the first permanent treaty-based court. The ICC’s headquarters are in The Netherlands. It is independent and is not part of the UN. However, it does have formal relations with the UN and the UN Security Council plays a large role in that it may refer cases to the ICC and initiate investigations. Otherwise, it is the prosecutor of the ICC that initiates investigations.

The ICC does not replace the ICTY and ICTR, which will continue until their trials have been completed, but it is responsible for investigating and trying all cases of crimes against humanity committed since 2002.

The Rome Statute and the four gravest crimes

The treaty that created the ICC is the Rome Statute, which came into force on July 1, 2002. The aim of the Rome Statute was to end impunity(to ensure prosecution and punishment) for the perpetrators of the most serious crimes within the international community. It applies to individuals rather than states.

The Rome Statute defines four crimes, regarded as the gravest crimes. These four crimes are genocide, war crimes, crimes against humanity and crimes of aggression.

The ICC does not have powers over the whole world. It only has jurisdiction over crimes committed by citizens of countries that have signed the Rome Statute. It may not try people responsible for crimes committed before it came into force on July 1, 2002.

The ICC tries individuals. When the ICC institutes proceedings, the countries must cooperate with the court and surrender suspects.

A court of last resort

The ICC is a court of last resort. Its jurisdiction is complementary to that of national courts. This means that the ICC will not act if the country where the crime was committed takes action against perpetrators. But if the government refuses to act, or if it reacts too slowly, or if the proceedings are biased in ways that protect perpetrators, the ICC will step in.

Most of the court’s funding comes from member states. But the court can also receive voluntary additional funding from member states, or from business, foundations and individuals.

The four crimes

Genocide: The deliberate destruction of an ethnic, racial, religious or national group. Examples include the murder of six million Jews by the Nazi regime of Germany (1933-1945); the Rwanda genocide of 1994, and the Srebenica genocide of July 1995 in which 8,000 Bosnian Muslim men and boys were massacred by members of the Bosnian Serb army and buried in mass graves.

Crimes against humanity: Crimes that are perpetrated by state or nonstate actors, or that result from government policy, or that are tolerated or condoned by government or others in authority, in peacetime or in conflict. They are not single events, but are systematic and widespread, and include murder, torture, rape and other sexual violence and political, racial and religious persecution.

War crimes: Crimes committed in wartime that violate the rules of war. These include murder; the ill-treatment or deportation of civilians to labor camps; killing and ill- treatment of prisoners of war; the destruction of cities, towns and villages and any other acts of destruction not arising out of military necessity or to protect civilians.

Crimes of aggression: When the Rome Statute was adopted in 2002, the signatories agreed that the ICC would not try crimes of aggression until they agreed on a definition and processes of justice for these crimes. In June 2010, the Review Conference of the Rome Statute amended the Statute to a definition of a crime of aggression. The crime was defined as the “the planning, preparation, initiation or execution by a person in a leadership position of an act of aggression.” They defined an act of aggression as the use of armed force by one state against another state without the justification of self-defense or authorization by the Security Council of the United Nations. Under the Kampala agreement, the ICC may not try cases involving crimes of aggression until 2017, when states activate the agreement.

Controversy

The ICC is extremely controversial, and advocacy for and against the court is ongoing.

The most powerful country that is not a signatory is the US. In 2000, US President Bill Clinton signed the Rome Statute. However, this decision was reversed by President George W. Bush, who “nullified” (or “unsigned”) in May 2002. The reason generally given for nullification is that the US constitution, which sets out the US judicial system, prevents US membership.

However, US politicians have also expressed concern that opponents of the US in the international community will use the ICC for “malicious” or political prosecutions of US citizens involved in military operations, for example, in Iraq and Afghanistan, and in peacekeeping missions.

Since President Barack Obama came to power in 2008, the US has entered a policy of constructive engagement with the court, and has participated in some ICC meetings. However, the US is still not a member.

The only two other states that nullified their signatures are Israel and Sudan.

Israel expressed concern that the court would invent new crimes. A particular concern for Israel was that the court might include as a war crime the creation of settlements for civilians of an occupying power in occupied territory.

In 2009, the ICC issued an arrest warrant against Sudan’s President Omar al-Bashir for crimes against humanity arising out of the murder of about 300,000 people in the Darfur region of Sudan since 2003. As the ICC does not have its own police force, it relies on the Sudanese government to hand the president over for trial.

The arrest warrant has caused controversy and some African countries, including Senegal, Djibouti and Comoros, have called on African ICC members to withdraw from the court in protest. Their argument is that the court targets Africa.

Three other powerful states that have not signed are:

  • China, which argues that the existence of the ICC undermines the sovereignty of states. Other concerns for China are the definition of war crimes as including internal conflict, and that the court has jurisdiction over crimes against humanity committed in peacetime.
  • India also objects to the broad definition of crimes against humanity and the definition of internal conflicts as war crimes.
  • Pakistan feels the Rome Statute should provide for reservations by countries that do not agree to all its terms. Another concern for Pakistan is that the ICC can prosecute heads of state.

Cases and trials

At the time of writing this toolkit, the ICC was involved in the following cases:

  • Uganda – cases against four members of the Lord’s Resistance Army. Arrest warrants had been issued, but none of the four had yet been captured.
  • Democratic Republic of Congo (DRC) – cases against five men involved in crimes including enlisting underage children to fight, and rape. Four of the five were in custody; the other was still at large.
  • Sudan (Darfur) – four cases against individuals for crimes committed in Darfur. One suspect had appeared voluntarily before the court; the remaining suspects were still at large.
  • Sudan (Darfur) – the ICC has indicted the Sudanese president, Omar al-Bashir, on charges of genocide in Darfur, but he has refused to recognize the court. He remains in office as president of Sudan.
  • Central African Republic – a former politician in the Democratic Republic of Congo (DRC) and alleged leader of an armed force, Jean-Pierre Bemba Gombois being tried for war crimes and crimes against humanity.
  • Kenya – the ICC was investigating cases against six Kenyan leaders for alleged crimes committed during the electoral violence in 2007-2008.
  • Libya – the UN Security Council referred the situation in Libya to the ICC for investigation. The ICC has opened an investigation into crimes against humanity committed by the Gaddafi regime.

The ICC’s media relations section provides news and information to journalists.