Global Justice: The International Criminal Court and Universal Jurisdiction
Global Justice: The International Criminal Court and Universal Jurisdiction

Introduction

The Nuremberg Trials, one of the first attempts at international justice
From: http://www.nuigalway.ie/research
/human_rights/images/Nuremburg.jpg

With the proliferation of international organizations over the course of the twentieth century, the concept of international justice has become a contentious issue in world politics. In the realm of human rights and crimes against humanity, a number of trials and investigations are ongoing in several courts. For example, in October 2009, the ad hoc International Criminal Tribunal for the Former Yugoslavia (ICTY) dismissed the appeal of Bosnian Serb leader Radovan Karadzic that war crimes charges against him be dropped.1

This news analysis will examine the current investigations of the International Criminal Court (ICC) and introduce the concept of universal jurisdiction, as well as highlight state responses to each. Both the ICC and the notion of universal jurisdiction are important to consider because they represent evolving, well-intentioned attempts at creating a workable system of global governance whereby humanity’s worst atrocities may be addressed.

Responses For and Against the ICC

Click here to read an introduction to the International Criminal.

It is enlightening at this juncture to contrast expressed opinions for and against the existence of the ICC. A supporter of the ICC, Peter Bancroft, legal adviser to the Irish Mission at the United Nations, argues that

there is a sense that what an international court can do in contrast to national courts is that it brings with it a layer of objectivity and impartiality that may at times be more difficult to obtain in a domestic setting [....] We’re dealing with crimes here that have a genuine international flavor, and that being the case, the notion of an international court is more appropriate.2

Furthermore, although the ICC cannot prosecute retroactively, it has enjoyed jurisdiction over signatories since its inception; thus, the slow and unwieldy process of implementing an ad hoc tribunal is greatly simplified, leading to a higher chance that abuses will be investigated and prosecuted in a timely fashion.

To provide another positive view on the ICC, when comparing the ICC to the International Criminal Tribunal on the Former Yugoslavia, then Bosnian Ambassador to the United Nations averred,

We believe that if there had been an ICC before the atrocities in the Balkans started, there wouldn’t have been such a level of commitment of war crimes. […] We definitely believe that many of those who committed war crimes believed that they would never face justice, because in the history of the Balkans there was never such a court to convict those who had committed war crimes.3

By contrast, David Scheffer, ambassador at large for war crimes under President Clinton, summarizes the opposition’s case against the ICC:

[…] The court could tie the hands of the United States in the execution of its foreign policy… to such an extent that policy makers would have to be extremely concerned about whether any particular decision to use military force would end up with US officials being charged before the international criminal court.4

As the United States (along with other countries such as India) sends significant numbers of troops as UN peacekeepers, officials note that that fear of prosecution may be a particularly pressing concern during operations.5 The Prosecutor is the sole initiator of official investigations under the Statute, a fact which has also raised concerns of impartiality and political bias.6

Current Cases and Investigations of the Court

The Court Currently has four investigations ongoing: Uganda, the Democratic Republic of the Congo, the Central African Republic, and Sudan (Darfur Region).

Uganda

Upon referral from the Government of Uganda, the ICC indicted Northern rebels from the Lord’s Resistance Army, prompting the ICC to issue its first arrest warrants on July 8, 2005 for LRA leaders Kony, Odhiambo, Ongwen, and Otti and Lukwiya (both now deceased).

However, LRA leaders have asserted that they will not surrender unless given immunity from ICC prosecution.7 This has prompted Ugandan leaders to consider a purely national tribunal that bypasses ICC warrants (the ICC cannot prosecute unless all national venues have been exhausted).8

Democratic Republic of the Congo

Upon referral from the Congolese government, the ICC issued warrants for warlords Lubanga, Katanga, Chui, and Ntaganda. Of the four fugitives, three were taken into ICC custody between 2006 and 2008. On January 26, 2009, the ICC began its first trial, as Thomas Lubanga took the dock, after repeated delays due to prosecutorial over-steps.9

Most notably, this case involves the participation of almost 100 witnesses, in order to better replicate conditions in the Congo.10 However, this choice has raised controversy over the rights of the defendant. The trial also represents a landmark case in international law because it is the first trial to assert that the use of child soldiers constitutes an international crime.11

To learn more about Child Soldiers, click here.

Central African Republic

Upon request from the Central African Republic government, the ICC issued an arrest warrant for Jean-Pierre Bemba, former Vice President of the DR Congo, who was arrested and taken into ICC custody in July 2008. Bemba is currently awaiting trial for war crimes and crimes against humanity.12

Sudan (Darfur Region)

Upon recommendation from the United Nations Security Council (via Resolution 1593), the ICC issued arrest warrants for Ahmed Haroun (humanitarian affairs minister) and Ali Kushayb (Janjaweed leader) in March 2005.13 The government of Sudan, denying the jurisdiction of the court while national investigations are ostensibly underway, refuses to extradite these individuals.

Omar Hasan Ahmad al-Bashir, President of Sudan

In 2008, the ICC issued further warrants for the President of Sudan himself, Omar al-Bashir, representing a serious flexing of juridical muscle.14 This move was received with wide disapprobation by the Russian, and Chinese governments; all members of the African Union, in July 2009, refused to cooperate with the indictment.15 On October 19, 2009, the ICC also began a hearing into whether to confirm war crimes charges against rebel leader Bahr Idriss Abu Garda (appearing voluntarily before the Court).16

In addition to the above investigations, the ICC has also been involved in a number of national disputes. On October 15, 2009, the BBC reported that the ICC opened investigations into the Guinean military’s suppression of an anti-government protest on the 28th of September.17 In early October 2009, the Kenyan government decided to collaborate with the ICC to try key suspects in the December 2007 post-election violence, using Kenya’s national court system.18 Earlier, in September 2009, the ICC’s chief prosecutor, Luis Moreno-Ocampo, announced that he was gathering evidence on possible war crimes committed by either NATO forces or Taliban insurgents in Afghanistan.19

Thus, even from its first few investigations, it is clear to see the growing importance of the ICC in furthering international law and jurisdiction. In particular, the landmark charge against Congo’s Lubanga of using child soldiers and the unprecedented indictment of the current President of Sudan represent historical moments in the evolution of international human rights law. Both will serve as important tests of the Court’s efficacy, particularly in the face of organized resistance, as has been displayed by the African Union.

The Principle of Universal Jurisdiction

The Global Policy Forum, an independent policy watchdog which monitors the policy-making of the UN, summarizes the principle of universal jurisdiction as follows:

The doctrine of universal jurisdiction allows national courts to try cases of the gravest crimes against humanity, even if these crimes are not committed in the national territory and even if they are committed by government leaders of other states. The concept is not new, though states have shown an increasing willingness to enlarge the zone of their jurisdiction and to prosecute or extradite those in high places.20

One of the most notable cases of a state unilaterally issuing a law of universal jurisdiction (i.e. outside of an international agreement or tribunal such as the ICC) was Belgium’s “genocide law” in 1993, which quickly sparked lawsuits against Ariel Sharon of Israel, Yasser Arafat, and members of the US government (George H.W. Bush, Colin Powell and Dick Cheney).

In response to global dismay, the Belgian government repealed the law on universal jurisdiction in favor of extraterritorial jurisdiction (which generally requires that the accused be citizens of the state, regardless of where the abuses took place); however, several trials (including cases concerning the Rwandan genocide and the trial of former Chadian president Hissene Habré) are ongoing in Belgian courts.21

In addition, Spain’s universal jurisdiction laws have resulted in several high-profile human rights cases. Although Spanish law originally only allowed for prosecution of Spanish citizens committing atrocities abroad, the law was expanded to allow for prosecutions of genocide, regardless of the nationality of the perpetrators. This represented a significant assumption of juridical powers by Spanish courts. Nobel Peace Prize winner Rigoberta Menchu brought a case against the Guatemalan military leadership in 1999 to a Spanish court.22

Further investigations followed. In 2003, a Spanish court indicted a former Argentine military official. In January 2006, the Spanish High Court opened investigations into Chinese officials charged with human rights abuses in the disputed region of Tibet,23 and, in January 2009, the Audencia Nacional (High Court) opened investigations into Israeli officials in response to a 2002 bomb attack on Gaza.24 However, in response to a global outcry (particularly by countries such as the United States and Israel) the Spanish government announced in August 2009 that it would be limiting the application of universal jurisdiction via the courts.25

Although the United States has protested certain applications of universal jurisdiction, it upheld that same right in prosecuting US citizen Chuckie Taylor, son of former Liberian President Charles Taylor, for committing human rights abuses in Liberia.26 Similar cases have been undertaken in Canada, France, Germany, and the United Kingdom.27

The significant number of governments experimenting with this legal concept demonstrates the wide acceptance of some form of universal jurisdiction among many governments of developed countries and points to another mechanism by which human rights law may be enforced internationally.

Conclusion

Both the institution of the International Criminal Court and the legal concept of universal jurisdiction represent efforts in the international community to protect human rights worldwide. Both have had mixed results. The International Criminal Court is hampered by the dissent of non-signatories even as it flexes its muscles in asserting the right to try war criminals. The principle of universal jurisdiction has resulted in several high profile cases (the trials of Chilean dictator Pinochet is one example), but global outcry has resulting in a rescinding of many of the more ambitious assertions of national courts.

At the heart of such issues of international justice is the conflict between national sovereignty and the international community’s shared interests. This tension lies at the heart of the phenomenon of globalization and at the core of world politics itself.


1 “Karadzic Immunity Appeal Rejected.” BBC News. October 13, 2009.
2 “Historic Day for International Justice.” BBC News. April 11, 2002.
3 Ibid.
4 Ibid.
5 “India-US deal to boycott court.”BBC News. December 26, 2002.
6 “Structure of the Court.” International Criminal Court/ icc-ipt.int.
7 “Representatives for Wanted Ugandan Rebels Visit ICCInternational Herald Tribune, March 10, 2008.
8 “Uganda’s Mato Oput Ritual: Forgiveness for Brutal 20 year War” Agence-France Presse. January 23, 2008.
9 Simons, Marlise, “Ínternational Court Begins First Trial.” New York Times. January 26, 2009.
10 Irwin, Rachel. “Lubanga Trial Transformed by Victims.” Institute for War and Peace Reporting. September 4, 2009.
11 “Lubanga Trial a Landmark Case.” Institute for War and Peace Reporting. January 23, 2009.
12 Reed, Stevenson. “Congo’s Bemba Accused at Hague of Ordering Rape.” Reuters Press. January 12, 2009.
13 Resolution 1593, United Nations Security Council.
14 “ICC Issues War Crimes Warrant for Sudan’s Bashir.” Common Dreams. March 4, 2009
15 “African Union in Rift with Court.” BBC News. July 3, 2009
16 “ICC opens hearing on war crimes charges against Darfurian rebel.” Spero News. October 19, 2009
17 “ICC investigates Guinea ‘abuses’” BBC News. October 15, 2009.
18 “Kenya backs poll violence trials.” BBC News. October 2, 2009.
19 “Court to probe Afghan war crimes.” BBC News. September 10, 2009.
20 “Universal Jurisdiction.” Global Policy Forum.
21 “Belgium restricts ‘genocide law’” BBC News. April 6, 2003.
22 “Spain asserts right to try.” Agence France-Presse. September 29, 2005.
23 Abend and Pingree, “Spanish Court Looks at Tibetan Genocide Claims.” Christian Science Monitor. March 2, 2006.
24 Skeen, Lisa, “Universal Jurisdiction: Spain Steps Down.” North American Congress on Latin America. August 24, 2009.
25 Ibid.
26 Dwyer, Johnny, “The All-American Warlord.” The Guardian. November 23, 2008.
27 “Universal Jurisdiction- Key Documents.” Global Policy Forum.

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