Human Rights and International Law (4): The International Criminal Court, An Historical Perspective

This post is by guest-writer Line Løvåsen.

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We’ve mentioned before on this blog that national systems of criminal justice are often insufficient and ineffective, and that an international criminal justice system is an important tool for the protection of human rights. It can help to combat impunity, to build a global culture of accountability, to achieve justice for victims and to heal and reconcile a society torn apart by oppression, injustice and dictatorship. A global culture of accountability can also prevent future atrocities.

Some claim that the International Criminal Court (henceforth ICC) is THE international institution capable of achieving this. Others say that it is not, that it is totally undemocratic and that it creates more problems than it solves. For example, a criminal accusation against a sitting head of state may force this person to cling to power, and may therefore counter efforts to negotiate his exit.

So, should the ICC be supported and encouraged to handle an increasing number of cases, or are its critics right and should it be reformed or even abolished? If it should continue, what changes are required to strengthen it? We’ll look at this in a future post in this series. First, we’ll give an historical perspective of the ICC and its genesis.

Beginning of the 20th century

Although there were suggestions of an international criminal court earlier, the birth of the idea of the ICC can be traced back to two international peace conferences held in The Hague in 1899 and 1907. These conferences witnessed the first steps towards a necessary precondition for the court: limitations on the sovereignty of states. They were held because of a worrying increase in military hardware during the previous years. Thirteen treaties or conventions were the result, including Laws and Customs of War on Land and the legal basis of Laws of Humanity. These were the first formal statements of the laws of war and war crimes in the nascent body of international law.

However, the conferences proved unsuccessful when the First World War broke out. This led to necessary changes in the conventions and some new treaties, which together became known as international humanitarian law, also known

as the laws of war, the laws and customs of war or the law of armed conflict, i.e. the legal corpus comprised of the Geneva Conventions and the Hague Conventions, as well as subsequent treaties, case law, and customary international law. It defines the conduct and responsibilities of belligerent nations, neutral nations and individuals engaged in warfare, in relation to each other and to protected persons, usually meaning civilians. (source)

To jus in bello (law of war) was added jus ad bellum, rules about when it is lawful to start a war. The crime of starting an unjust war was added to the category of war crimes.

Regulating warfare obviously implies limitations on sovereignty. Violations of treaties bring into play a state’s responsibility and liability (if the state has consented to the treaties). But what about individual responsibility? An international criminal tribunal for the prosecution of individuals responsible for war crimes was proposed from several corners several times after the war, but big obstacles were present. The first concerned national sovereignty and the right to be judged under domestic law, and the international prosecution of individuals mismatched with the fact that international law was at that time still seen as an affair between states. Second, international criminal law was still embryonic as positive law and therefore there were no clear rules to judge individuals. Third, it was a widely shared opinion that such a court would not be able to prevent war. On the contrary, the court would supposedly make peace much harder to achieve because it would start a process of recrimination and harm post-war reconciliation (Sadat 2002, pp.22-26).

The embodiment of the ICC in Nuremberg

Following the brutality caused by fascism before and during the Second World War, the idea of an international criminal court was taken up again. The belief that criminal justice stands in the way of peace and reconciliation was replaced by the belief that there can be no lasting peace without justice. After WW2, the Allies were willing to let the new German government prosecute the war criminals. But as this turned out to be less than effective, the Allies created the ad hoc military tribunals in Nuremberg and Tokyo (Palme 2000, p.3).

The war trials held there were often called political trials, which meant that the trial was an indictment of the political project of the accused, in this case nationalism and racism (the same logic was behind the tribunals for former Yugoslavia and Rwanda). It is of course perfectly justified to include in such trials the political system and ideology which made the crimes possible, but as a result the trials in Nuremberg and Tokyo were criticized for being victor’s justice disguised as a universal legal procedure (McGoldrick et.al. 2004, pp.49-50). This criticism was substantiated by the fact that only crimes on the losers’ side were tried, and that the crimes were defined after the facts (Palme 2000, p.4).

Whatever the merits of this criticism, the tribunal in Nuremberg ended up making international law, setting guidelines for future trials and treaties, and in a sense was the first historical embodiment of the current ICC. It was the U.S. that convinced the Allies to have the tribunal, rather than just execute the criminals as for example the British had wanted. The tribunal overcame the earlier obstacle of sovereignty, and made the shift from state responsibility to individual responsibility and from national to international responsibility. The crimes prosecuted at the tribunal were later to become three of the four crimes in the treaty of Rome, the treaty creating the ICC:

• genocide
• crimes against humanity and
• war crimes.

The tribunals for former Yugoslavia and Rwanda, and the work of the International Law Commission (ILC)

After the Nuremberg trials, there was talk about a permanent court. Several problems with ad hoc tribunals had come to light. The time needed to establish such an ad hoc tribunal could result in evidence and lives being lost; hasty recruitment led to problems with staff competence affecting the rights of the indicted (Sadat 2002, pp.31,32). A permanent court could silence the criticism of victor’s justice, since it will not be the responsibility of the victors to set up a tribunal.

However, the journey towards a permanent court would take another fifty years from then. In 1948, the UN mandated the International Law Commission (ILC) to codify international crimes and prepare a draft statute for a permanent international criminal court. But because of the sharp political division in the Cold War world, which also led to a divided UN, the work of the ILC stagnated.

In 1989, the work took on some more momentum, but the end of the Cold War created other problems. It led to the resurgence of older conflicts, as the old world order with the “policemen” of the East and West had disappeared. As a result, the world saw internal conflicts and injustices and atrocities reminiscent of World War 2, especially in Yugoslavia and Rwanda.

Again the international community acted to punish the violations of international humanitarian law (Cassese 2002, pp.9-11), and established the International Criminal Tribunal of former Yugoslavia (set up in 1993 in the Hague) and the International Criminal Tribunal of Rwanda (set up in 1994 in Tanzania). These ad hoc tribunals were not military tribunals like the post WW2 tribunals, but were set up by Security Council Resolutions. While this avoided the charge of victor’s justice, the impossibility to judge persons in absentia caused problems because many of the leaders could not be brought to trial. They were in hiding abroad, hiding in and protected by their own country, or still part of the government and therefore unlikely to be extradited. The tribunal for Yugoslavia did not get any help from the government of former Yugoslavia. Its territory wasn’t under occupation so the tribunal did not have any control over the indicted; many therefore disappeared and resurfaced years later with a long beard (Bring 2002, p.31).

Karadzic

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And it was also for other reasons a difficult process. Unlike in post-war Germany, there was no documented evidence. Neither was it a simple war between states so it took time to convince people that this was an international issue. As the Dayton process was going on, the accused managed to get immunity, and the tribunal was made to look like a potential disturber of the peace process.

In Rwanda in 1994, approximately 800.000 Tutsis were killed in four months by their rival tribe of Hutus. This led to the creation of a tribunal in Arusha, Tanzania, in 1994. This tribunal also suffered some setbacks, but together with the Yugoslavia tribunal it succeeded in convincing world public opinion and many governments that a permanent international criminal court, able to respond quickly and efficiently to gross violations of human rights anywhere and any time, is necessary.

The ILC continued its treaty-making process, and a draft statute was presented to the General Assembly in 1994. 50 years after the work of the ILC began, the final statute was adopted at the Rome Conference on July 17, 1998. 120 countries voted for, 7 against and 21 abstained (Cassese et.al. 2002, pp.14-17). It entered into force after 60 states had ratified it on July 1, 2002 (McGoldrick et.al. 2004, p.43). Here’s the current level of adoption (as you can see, some of the world’s largest countries are still out; we’ll return to the reasons for this in a later post):

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References

Badinter, Robert (2002), International criminal justice: from darkness to light, in Cassese, Antonio – Gaeta, Paola – Jones, R.W.D John (eds.), The Rome Statute of the International Criminal Court: a commentary, I-II. Oxford

Boos, Adrian (2002), International Criminal Court: a perspective in Lee, Roy S. (2002), The International Criminal Court – the making of the Rome Statute: issues, negotiations, results. The Hague

Bring, Ove (2002), International criminal law in a historical perspective: comments and materials. Stockholm

Bring, Ove – Mahmoudi, Said (1998), Sverige och folkratten. Stockholm

Broomhall, Bruce (2003), International justice and the International Criminal Court: between sovereignty and the rule of law. Oxford

Cassese, Antonio (2002), From Nuremberg to Rome: From international military tribunals to the International Criminal Court, in Gaeta, Paola – Jones, R.W.D John (2002), The Rome Statute of the International Criminal Court: a commentary, I-II. Oxford

Hebel, Herman von – Robinson, Darryl (2002), Crimes within the jurisdiction of the Court, in Lee, Roy S. (ed.), The International Criminal Court – the making of the Rome Statute: issues, negotiations, results. The Hague

Lee, Roy S. (ed.), The International Criminal Court – the making of the Rome Statute: issues, negotiations, results. The Hague

McGoldrick, Dominic – Rowe, Peter – Donnelly, Eric (2004), The Permanent International Criminal Court: legal and policy issues. Oxford

Osterdahl, Inger (2004), The International Criminal Court and collective security in Amneus, Diana – Svanberg-Torpman, Katinka (eds.), Peace and security: current challenges in international law. Lund

Palme, Christian (2000), Vägen mot rättvisa: de nya krigsförbrytartribunalerna (Världspolitikens dagsfrågor 2000:10). Stockholm

Rome Statute of the International Criminal Court in Schabas, Wiliam A. (2004), An introduction to the International Criminal Court. London

Sadat, Leila Nadya (2002),The International Criminal Court and the transformation of criminal law: justice for the new millennium. NewYork

Schabas, Wiliam A. (2004), An introduction to the International Criminal Court. London

Yee, Lionel (2002), The International Criminal Court and the Security Council: article 13(b) and 16 in Lee, Roy S. (ed.), The International Criminal Court – the making of the Rome Statute: issues, negotiations, results. The Hague