The evolution of the International Criminal Court
By Elizabeth Willmott-Harrop
Douglass Cassel has called the past one hundred years a “good century for tyrants”. Between them, leaders such as Pol Pot in Cambodia, Idi Amin in Uganda and Hitler in Germany have killed literally millions of people.
Through a combination of factors including lack of political will, allied states willing to act as a safe haven in-spite of the commitment of alleged atrocities, and a weak legal infrastructure at the national and international level, such people are rarely ever tried for their alleged crimes. Cassel adds: “There have been few exceptions to this pattern of impunity…the odds have overwhelmingly favoured those who commit atrocities.” José Ayala Lasso, former United Nations High Commissioner for Human Rights, reinforces the point when he says: “A person stands a better chance of being tried and judged for killing one human being than for killing 100,000.”
Although the atrocities committed during World War two (WW2) were the catalyst for a call to individual justice in the form of the Nuremberg Trials, the last 50 years has seen many further cases of genocide, crimes against humanity and war crimes for which few individuals have been held accountable. The nature, scope and number of crimes against humanity committed in contemporary society therefore demands new vehicles of justice in the form of the prosecution of individual perpetrators of gross acts and redress for their victims.
International Courts & Tribunals
Although there is an International Court of Justice at The Hague, this deals with cases between States and not between individuals. Acts of genocide and other massive violations of human rights, which should be the concern of the international community irrespective of where they are perpetrated, have therefore not had a permanent international legal mechanism.
Lacking, says Lawrence Weschler in Crimes of War: What the Public Should Know, has been “any effective means of enforcing (international humanitarian law) and specifically of holding individuals criminally accountable, both to their victims and to the entire world community, for their violation.”
In the absence of a permanent international criminal court, permanent or semi-permanent international tribunals have been established. These include the UN’s two ad-hoc criminal tribunals, the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). These provide alternatives to trying alleged perpetrators of gross crimes against humanity in national courts and provided a crucial impetus to the proposal for an International Criminal Court (ICC). The ICC is therefore widely acknowledged as ‘the missing link’ in the international legal system.
There are several key objectives which the establishment of an international criminal court is able to satisfy, the sum of which, alternative solutions such as reliance on national justice and ad-hoc criminal tribunals are not able to address:
- An international criminal court ends the cycle of impunity by prosecuting previously unjusticable cases.
- Specifically, the court takes over where national criminal justice fails to act.
- The court will help enable the ending of conflicts by providing a platform for justice as a prerequisite for long term peace and stability.
- The court addresses the deficiencies of ad hoc tribunals, which although progressive in their way, have begged questions about selective justice.
- The court will progress the case law of international criminal prosecutions to develop a more effective framework for international humanitarian and human rights law.
- The court will act as a deterrent to the commission of future such crimes.
Although the Rome Statute of the ICC states that the ICC will only try individuals when national courts are unwilling or unable to prosecute, there are disadvantages to national trials. In the case of Rwanda for example, Amnesty International commented (1999 Report): “Most trials taking place in areas of armed conflict proceeded without lawyers, who would generally not risk travelling there.”
However, Amnesty adds (2002 Report) that where possible offences which are serious crimes under international law should be prosecuted within the jurisdiction where they occurred. “It is one of the best ways to demonstrate to civil society that justice is being done. It is often the most effective way to collect evidence and testimonies…the most economical way for victims and witnesses to participate in criminal proceedings. Finally, it allows suspects to be tried in a legal system and a language they and their lawyers know best.”
Developments in International Law
Seen in the context of the evolution of international law in the past 50 years, the establishment of the ICC is a logical development because of four key trends:
- the establishment of international tribunals as outlined above
- a new focus on compliance and deterrence
- a newly emerged concept of personal liability in International Law (excepting the laws of piracy)
- the Pinochet precedent relating to the denial of Sovereign Immunity
Antonio Cassese explains that one of the unique features of International law that has emerged in the post war era is that the settlement of disputes between states has been replaced in many areas with mechanisms which monitor compliance with international law on an ongoing basis. Combine this with the fact that international law is no longer simply about relations between states but between individuals and the state and one would expect to see an international mechanism which is capable of operating as a powerful deterrent against the grossest crimes against humanity.
As Antonio Cassese states: “…instead of setting up bodies calculated to act after a breach of international rules has allegedly occurred, mechanisms have been established aimed at forestalling possible infringement and inducing compliance with law.” Although the ICC does indeed operate after laws are alleged to have been broken, one of its most powerful effects will be that of deterrent. Cassese continues: “In delivering punishment, the international community’s purpose is not so much retribution as stigmatisation of the deviant behaviour, in the hope that this will have a modicum of deterrent effect.”
Speaking about the power of deterrence, Hans Corell, United Nations Under-Secretary-General for Legal Affairs comments “… all potential warlords must know that, depending on how a conflict develops, there might be established an international tribunal before which those will be brought who violate the laws of war and humanitarian law.” The deterrent effect is powerful because of other developments in international law relating to personal liability.
The concept of personal liability for international crimes is comparatively modern and arose out of the Charter of Nuremberg Tribunal which recognised that there could be criminal liability under International Law for a class of crimes such as war crimes and crimes against humanity (Lord Browne Wilkinson in Steiner and Alston, International Human Rights in Context). Furthermore, the precedent set in 1999 regarding the denial of Sovereign Immunity to Pinochet, means that the threat of being prosecuted for crimes under the ICC’s mandate is very real for leaders accused of crimes such as mass murder and systematic torture.
The role of NGOs
Just as international law has changed significantly since WW2 and the establishment of the UN Charter, so too the community of Non Governmental Organisations (NGOs) has become an integral part of the international community in monitoring and influencing policy. For example, NGO’s such as Amnesty International (AI) and the World Federalist Movement (WFM), both of which lobbied for the creation of the ICC, were established in the aftermath of WW2 in 1961 and 1947 respectively.
AI comments: “One of the significant changes that AI has contributed to and benefited from over the past 35 years is the growth in the human rights movement. There are more NGOs working to stop the violations that form AI’s mandate than ever before.” NGOs are widely credited with having been highly influential and instrumental in the establishment of the ICC. David Stoelting comments that “the extraordinary role of NGOs in the drive toward the creation of the ICC provides a model for effective NGO mobilisation and coordination … The influence of NGOs on the substance of the Rome treaty … reveals how the development of international law can be shaped by non-governmental actors.”
Likewise NGOs played a crucial role in bringing about the two ad-hoc tribunals for Yugoslavia and Rwanda. Richard Goldstone, the first chief prosecutor of the ICTY comments (in Crimes of War: What the Public Should Know): “The NGO community added its voice in helping to mobilise public opinion and pressurize governments. This support played a vital role in convincing the General Assembly to devote considerable funds to the tribunal.” Created in 1995, Coalition for the International Criminal Court (CICC), began as a cooperative of 20 human rights and peace organisations, rising to a membership of over 1,000 NGOs from all regions of the world in 2002. The focus of the CICC was to generate support for the creation of the ICC subsequent to the adoption of a Draft Statutes for an ICC by the International Law Commission (ILC).
The CICC comments that “NGOs made significant contributions in shaping the treaty, and are credited with some of its most important aspects, such as the strength of the provisions on gender crimes and the role of the independent Prosecutor.” However, NGO’s were also extensively involved prior to the 1994 statute with, for example, the WFM establishing an NGO Committee to work alongside the General Assembly’s Sixth Legal Committee, which in 1989 formally requested the ILC to explore the establishment of the ICC.
Lobbying and communications
One of the great strengths of the NGO community is its ability to lobby states, key stakeholders and influence public opinion through a variety of communications mechanisms. This dedicated advocacy role has ensured sustained international pressure calling for the perpetrators of human rights abuses to be brought to justice and for the establishment of the necessary mechanisms such as the ICC.
David Stoelting comments: “The efforts of the NGO coalition and its members highlight the nature of the ICC initiative as essentially a grassroots campaign in which the people have led the charge to ensure that basic human rights are protected.”
Members of the CICC not only included human rights organisations but lawyers groups, religious groups, peace groups, humanitarian assistance and victims of human rights violations, each with their own mandate. Stoelting singles out the Women’s Caucus for Gender Justice for particular praise for its lobbying work in the area of sexual violence and gender issues relating to the jurisdiction of the court and the qualifications of its personnel.
This is a good example of how different NGO’s can approach a project together, each with their own focus of expertise, to achieve excellent results. However, agreeing key messages as a coalition was also important, with uniform and consistent messages given by the CICC about issues such as favouring an independent prosecutor.
With numerous communications tools at their disposal, the CIIC was able to launch a sustained, extensive and effective campaign. Tactics included the production of a quarterly newsletter, available in five languages, a website, the dissemination of action alerts and an email update to a subscriber list. NGOs have also visited target countries to make representations direct to governments for ratification and implementation of the Rome Statute (Human Rights Watch World Report 2002).
The ability to coordinate such a huge number of organisations and individuals arises out of the technological advances of the post war era. The internet and email afford high speed delivery of messages to unprecedented audience numbers. It would simply not have been possible to orchestrate a campaign of this scale without this technology.
The past two decades or so have therefore produced an innovative form of NGO coordination and campaigning. AI comments: “Today there are more links between more countries than ever before … Some are attributable to the rapid development of communications technology and the establishment of global media empires…Seeking to take advantage of these growing connections and inter-relationships is one of the challenges increasingly at the heart of AI’s work.”
The Rome Conference
As well as meeting broad communications objectives, the CICC also attended the Rome Conference (The United Nations Conference of Plenipotentiaries on the Establishment of an International Criminal Court, 15th June – 17th July 1998, Rome, Italy) along with more than 130 governments.
The NGO Coalition monitored the negotiations, produced daily information bulletins for global dissemination and facilitated the parallel sessions of the 200 attending NGOs.
Stoelting heralds the Rome Conference as ‘a historic and unique event … particularly in the role played by NGOs.” There had never before been a multilateral treaty conference where so many NGOs were accredited observers. NGOs attended most of the working group and plenary sessions, were given briefings by government representatives and had an opportunity to lobby delegates informally during the conference.
The NGOs were received by Governmental delegates not just because of the power of their collective voice, but because the CICC’s input provided a valuable source of information and coordination. Stoelting comments: “As the Rome conference became increasingly more complex and frenetic, reports produced by the Coalition and strategy meetings organised by the Coalition became the only way for NGOs, governments and the media to stay up to date on the progress of the negotiations.” Likewise NGOs have continued to play an important role in convening regional and national meetings. In June 2001 for example, the government of Argentina, Human Rights Watch and the CICC co-hosted a conference in Buenos Aires for over 70 governmental and nongovernmental actors.
NGOs and the ICC in the future
Although the Rome Statute entered into force on 1st July 2002, the work to establish the actual institution of the ICC is still in its formative stages. The role of the NGO community is therefore far from over as it plays a vital monitoring role in ensuring that the ICC becomes an effective body. NGOs campaigned to help ensure the 60 ratifications required for the Rome Statute to enter into force. As of September 2004, 97 countries are States Parties to the Rome Statute: 26 are African States, 11 are Asian States, 15 are from Eastern Europe, 19 are from Latin America and the Caribbean, and 26 are from Western Europe and other states.
In August 2002, AI issued a checklist to ensure the nomination of the highest qualified candidates for judges stating that “AI is deeply concerned that state parties that have selected nominees so far, such as Belgium and the United Kingdom, or have reached an advanced stage in the nomination process, such as Italy, have not conducted transparent procedures with the broadest possible consultation.”
The role of NGOs every step of the way is therefore vital in ensuring that the ICC is set up to operate with integrity. Further NGO goals will include ensuring the development of strong implementing legislation in all ratifying countries and ensuring that the appropriate mechanisms are in place for the Court to begin functioning effectively as early as possible. Once the court is up and running, the NGO community’s work will continue further.
NGOs are active in monitoring the workings of tribunals such as that in Rwanda. For example, in a report published in April 1999 (ICTR: Trials and Tribulations), Amnesty International expressed concern about several aspects of the ICTR’s work including a poor witness protection scheme.
NGO’s are also a powerful voice in calling for specific individuals to be held to account, with for example the extensive involvement of Amnesty International and Human Rights Watch in the extradition of General Pinochet and lobbying by NGOs in the case of Habré Case. In 2001 Human Rights Watch reports that “countries reportedly contacted by Habré, stated publicly that they would not grant refuge to Habré after NGOs brought the issue to public attention.” NGOs also play a vital role lobbying on themes related to the ICC such as impunity. Amnesty International for example conducted a campaign during 2001 highlighting impunity as one of the key factors in perpetuating torture and made recommendations for how it could be overcome.
A combination of unique factors combined to make the creation of the ICC a timely success. These included:
- The changing nature of international law
- Precedents in international law relating to personal criminal responsibility such as the Pinochet precedent and the establishment of international tribunals
- The rise in numbers of NGOs and their ability to form global coalitions through internet technology
- The cost-effectiveness, scope and speed of the internet-based communications tools now available, which make for hugely effective public awareness campaigning
- The access given to NGOs in the political process which enabled tangible input into the development of the ICC
The ICC promises much. As Kofi Annan, United Nations Secretary-General says: “In the prospect of an international criminal court lies the promise of universal justice … Only then will the innocents of distant wars and conflicts know that they, too, may sleep under the cover of justice; that they, too, have rights, and that those who violate those rights will be punished.” The process is far from over, with disagreements still raging with for example the USA still refusing to ratify the Rome statue. However, every step of the way, the process will be monitored, commented on, added to and even instigated by the NGO community and the CICC. This gives the ICC the best chance of living up to its promise.
- Terry Allen “The General and the Genocide”, Amnesty Now, Winter 2002
- Amnesty International Campaigning Manual
- Amnesty International Checklist to ensure the nomination of the highest qualified candidates for judges, August 2002
- Amnesty International, ICTR: Trials and Tribulations, April 1998
- Amnesty International Report 1999
- Amnesty International Report 2002
- Douglass Cassel, “Why We Need the International Criminal Court,” The Christian Century, May 12, 1999
- Antonio Cassese: International Law
- Coalition for the International Criminal Court
- Roy Gutman and David Rieff, Crimes of War: What the Public Should Know
- Human Rights Watch World Report 2002
- International Criminal Court
- International Court of Justice
- Rome Statute
- Steiner and Alston, International Human Rights in Context
- David Stoelting, Non Governmental Organisations and the International Criminal Court
- David Stoelting, The Rome Treaty on the International Criminal Court
- World Federalist Movement