All of the tribunals discussed so far have been temporary and ad hoc, meaning they were constituted to prosecute a specific set of crimes, occurring within a specific geographical territory and a specific timeframe. As genocides continued to occur in the postwar period, a movement developed to found a permanent, standing court that would be available could try cases involving war crimes, crimes against humanity, and genocide that had been committed anywhere in the world at any time. The Rome Statute of the International Criminal Court was adopted by the United Nations in July of 1998 and entered into force in July of 2002.100 The Court is located in The Hague, Netherlands. As of July 2012, 121 countries have ratified the statute.101
The ICC, like many of its predecessor tribunals, seeks to prosecute individuals rather than states. Its jurisdiction is both broad and limited. It is broad in the sense that it can take cases from any country in the world, but it is limited by the principle of complementarity.102 This principle holds that the ICC “can only act in cases where states are unwilling or unable to do so.”
Thus, the ICC is designed to respect state sovereigntycomplete and exclusive control of all the people and property within a territory in situations where states are willing to act responsibly to fulfill their obligations to international justice. States that are party to the Statute and accept the standing of the Court can refer cases to the ICC for investigation, as can the UN Security Council. ICC prosecutors can initiate their own investigations when approached by victims or NGOs, as long as the principle of complementarity is respected. The ICC is also limited in that it can only review crimes that have been committed subsequent to its establishment in July 2002.103
A few countries, most notably the US, voted against the Rome Statute and have not supported the creation of the ICC (the others being China, Iraq, Libya, Yemen, Qatar, and Israel). The Bush administration worried that “the ICC may exercise its jurisdiction to conduct politically motivated investigations and prosecutions of U.S. military and political officials and personnel.” The U.S. has aggressively tried to secure exemptions from prosecution for American citizens, both in the UN Security Council and on a bilateral basis with other countries through bilateral immunity agreements (BIAs), also called “impunity agreements.” Many advocates of human rights fear that this policy will produce a “two-tiered rule of law for the most serious international crimes: one that applies to U.S. nationals; another that applies to the rest of the world’s citizens.”104
Supporters of the ICC argue that the U.S. has little to fear. As a general principle, any cases brought against the U.S. would face strict scrutiny before reaching the Court, and the U.S. judicial system would have an opportunity to prosecute the case first if it merited legal action. American citizens who might be accused of the types of crimes covered by the ICC’s mandate would already be subject to prosecution in the countries in which those crimes had been committed, regardless of the existence of the ICC.
The main contribution of the Rome Statute is that it allows countries to “exercis[e] their sovereign right to allow an international court to prosecute certain crimes committed on their territory rather than conducting these trials themselves.” Opponents of the Court continue to maintain that politically motivated prosecutions against the U.S. would be inevitable, and that provisions for due process are insufficient to meet American legal standards.105
To date, the Obama administration has seemed fairly open to ratifying the Rome Statue, yet it has not taken any significant steps towards that end.106 The U.S may be preparing to shift away from the stance they held concerning the ICC under the Bush Administration. In 2009, U.S. Ambassador Susan Rice, in a Security Council hearing, reportedly said that the ICC “looks to become an important and credible instrument for trying to hold accountable the senior leadership responsible for atrocities committed in the Congo, Uganda and Darfur.”107 Recognition from U.S diplomats concerning the credibility of the ICC represents a fairly dramatic shift away from the previous administration’s stance on the court.
As of May 2011, the ICC has received 9,214 communications to investigate alleged crimes in 140 countries. As of June 2011, seven investigations were ongoing under the Court’s oversight: in the Central African Republic, Uganda, the Democratic Republic of Congo, Darfur (Sudan), the Republic of Kenya, the Libyan Arab Jamahiriya, and the Republic of Côte d’Ivoire. Two cases involving Venezuela and the U.S. presence in Iraq had been dismissed, and five others remained under consideration.108 These statistics suggest that the ICC has been careful in interpreting its mandate as a “court of last resort.”
To date, “Uganda, the Democratic Republic of the Congo and the Central African Republic – have referred situations occurring on their territories to the Court.” Additionally, the United Nation’s Security Council referred the circumstances in Darfur, Sudan – a non]State Party, to the ICC.109
For more on the crisis in Darfur, consult the “Darfur: A Case Study” news analysis.
The United Nations, in conjunction with the government of Sierra Leone, established the Special Court for Sierra Leone, to try those who bore “greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996.” In total, thirteen indictments were presented by officers for the court. To date, “The trials of three former leaders of the Armed Forces Revolutionary Council (AFRC) and of two members of the Civil Defence Forces (CDF) have been completed, including appeals.” Three former leaders of the Revolutionary United Front (RUF) were sentenced to 25-52 years for war crimes and crimes against humanity. Additionally, former Liberian President Charles Taylor is currently sitting trial at The Hague and facing similar accusations.110
For more on the aforementioned court hearings, view the Special Court for Sierra Leone’s website at http://www.sc-sl.org/HOME/tabid/53/Default.aspx.
|The International Criminal Court vs. the International Court of Justice (ICJ)
The International Criminal Court, as the previous section elaborated, is the standing judicial body dedicated to investigating and prosecuting war crimes, crimes against humanity and genocide. Its function is to protect certain fundamental human rights. It both protects and prosecutes individuals, not states.The International Court of Justice is the international judicial body responsible for adjudicating disputes between states on questions of international law. It was established in Article 33 of the UN Charter to work towards the peaceful resolution of conflicts that might have resulted in hostilities in the past. It has a variety of methods open to it, including “negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, and resort to regional agencies or arrangements.”111The Court conducts hearings and trials, known as contentious cases, and issues advisory opinions, in what are known are advisory proceedings.112 One example of the type of case the ICJ hears involved a territorial dispute between Israel and Palestine. Israel had constructed a wall in the contested West Bank territory in order to protect itself from suicide bomb attacks. Palestinian authorities objected that construction of the wall violated international law, and the ICJ agreed. The Court held in an advisory opinion that the wall was “tantamount to annexation” and “impeded the Palestinian right to self-determination,” which is found in the ICCPR among other places.
ICJ decisions are non-binding, and vowed not to accept the ruling in 2004; Israel’s allies, the U.S. and the United Kingdom joined with it in questioning the jurisdiction of the ICJ over the situation.113For full documentation on this case, consult the ICJ: http://www.icj-cij.org/docket/index.php?p1=3&p2=4&code=mwp&case=131&k=5a.This case illustrates the complexities of trying to enforce international law. There will always be countries that challenge the legitimacy and authority of bodies like the ICJ, but the ICJ and other institutions like it are the best frameworks the international community has developed so far for peacefully resolving disputes across borders.
The role of courts and tribunals in enforcing international law remains an area of fierce contention. Some wonder whether the function of these bodies is deterrenceA security strategy by which the mutual possession of potentially devastating weapons prevents countries on either side of a conflict from actually using those weapons or retribution. Is the goal of prosecuting individuals in the ICC or more specialized tribunals to punish these people for the specific crimes they have committed or to send a broader message in hopes that imposing “exemplary punishments on selected individuals” will decrease the chances that the crimes they have committed will be repeated in the future?114
Genocide continues to be a threat in many countries, even with the increased media attention given to crises like the one in Darfur. In the next section, we will turn to the vexed question of how countries decide to intervene to stop genocide before it happens.
100 “Rome Statute.”
101 “Rome Statute of the International Criminal Court.”
102 “International Criminal Court: Basic Fact Sheet.”
103 “International Justice;” “International Criminal Court: Basic Fact Sheet.”
104 “International Criminal Court: Basic Fact Sheet.”
105 “The United States and the International Criminal Court.”
106 “Myths and Facts About the International Criminal Court.”
109 “Situations and Cases.”
110 “About the Special Court for Sierra Leone.”
111 “The Court: History.”
113 “UN Rules Against Israeli Barrier.”
114 Marks and Clapham 225.