Michael Davison
From the concentration camps of Nazi-occupied Europe, to the killing fields of Cambodia, and the villages of Rwanda, the twentieth century was regarded as a turning point in the scale of conflict and its associated atrocities. Despite 19th century agreements on the laws of war, leaders committed crimes against humanity that went unchecked throughout the following century. When heads of state are accused of crimes against their own people, who will bring them to justice? Following the Holocaust, countries recognized the need for an international tribunal to convict such “untouchable” criminals. The ageless question posed by the Roman poet Juvenal was asked once again: “Who watches the watchmen?”
Following the 1945-46 Nuremberg Trials, the United Nations (UN) recognized the need “to study the desirability and possibility of establishing an international judicial organ for the trial of persons charged with genocide.” When genocides occurred in the former Yugoslavia and Rwanda in the 1990s, the UN created courts for the trying of these criminals on an ad hoc basis. But there was still demand for a permanent “court of last resort.”
In response, UN member states met in 2002 to draft the Rome Statute, which established the International Criminal Court (ICC) to be located in the Hague, Netherlands. The ICC is the first permanent international court. It is a last resort, meaning it only acts when national institutions are unwilling or unable to do so themselves. Its purpose is to try persons accused of the most serious crimes of international concern: genocide, crimes against humanity, and war crimes.
These goals may seem ambitious for a court consisting of only one Chief Prosecutor and 18 judges. Indeed, the ICC has now existed for a decade and has successfully convicted only one man, Thomas Lubanga, to 14 years in jail for the recruitment of child soldiers in the Democratic Republic of the Congo. It has issued warrants for 18 individuals following investigations in seven countries on the African continent. This limited success comes as a surprise, considering the 121 states that signed the statute. Surely there are more war criminals going untried by national courts, not just in Africa but across the globe? The urgent need for justice for all humans, in all countries must be obvious? The fact is that amidst criticism of the Court, it has been challenged by opponents and even hindered by those who claim to support it.
The ICC has faced political opposition from many countries since its creation. The US has not ratified the Rome Statute, due to the refusal of the Rome Conference to give control of the Court to the UN Security Council (UNSC). The Bush Administration weakened the Court by making impunity agreements with other nations, threatening that these countries should not surrender accused US nationals to the ICC. These actions limit international recognition of the Court, and undermine its ability to act across all borders. The US government has recently taken a somewhat lighter stance toward the ICC. However, the Court’s scope will be limited until the US and 41 other UN member nations that have not signed the Rome Statute do so.
Many warrants issued by the ICC are outstanding because of the Court’s inability to enforce itself. Instead it relies on the actions of willing countries, which have been limited. A good example is the charges brought against the current President of Sudan, Omar al-Bashir. The Sudanese President is accused of genocide and war crimes in the Darfur conflict. Although Sudan is not a signatory of the Rome Statute, the UNSC passed Resolution 1593 requesting Sudan’s compliance with ICC-issued arrests. Not only has the Sudanese government ignored these warrants, but signees to the Rome Statute including Malawi, Kenya, and Chad have refused to arrest Bashir during his visitations. Although it might be expected that Sudan would not comply, for the Court’s own financial and legal supporters to not uphold its rulings is a blow to its authority.
A different example involves the 2011 Libyan Civil War, in which Muammar Gaddafi, his son Saif al-Islam Gaddafi, and the head of military intelligence Abdullah Senussi were each indicted by the ICC for crimes against humanity. Recently, Saif and Abdullah were both captured by the new Libyan government in Tripoli. The ICC has requested that Libya hand them over for trial at The Hague, amidst fears from Amnesty International that the new Libyan government is unable to hold fair trials. Libya has refused to give up both criminals and insists that it will try them fairly in Tripoli, where they will face execution if found guilty. Following civil war, new governments often execute old leaders with haste. The ICC is meant to set an example for such inexperienced governments on the proper use of the rule of law. But the NATO member nations that support the Court and who intervened in Libya, including Canada and the UK, have not stepped forward to pressure the new Libyan government to extradite these criminals to The Hague. As a result, revenge rather than justice may be served in Tripoli.
There have been many critics of the ICC. They note that the Court has cost $1.3 billion over the past decade, so far resulting in the conviction of only one man. Furthermore, it has only investigated conflicts in Africa. Western politicians such as the former British Prime Minister Tony Blair have been recommended for ICC investigation without success. In Blair’s case, individuals have accused him of exaggerating the danger posed by the Hussein regime, and therefore his declaration of war against Iraq constitutes a crime of aggression. However, the ICC has only recently defined the crime of aggression in 2010, and signees will decide in 2017 whether to activate ICC jurisdiction over this crime. Despite all this, few can deny the necessity of the investigations the ICC has opened, several of which began at the request of the concerned countries themselves. If these criticisms are addressed, it will provide the Court with an opportunity to increase its international credibility.
The ICC’s first ten years must not be seen as a failure, but as a limited success. The very existence of the Court and its recognition by 121 UN member states is a giant step toward the recognition of human rights globally. Moving forward, the ICC must broaden its scope by encouraging more states to ratify its statute, as well as by addressing criticism that it focuses too heavily on the African continent. Until support for the Court broadens, it will continue to face challenges in investigating crimes and enforcing its arrest warrants. Importantly, signees to the Rome Statute should be willing to enforce the decisions of the ICC within their national boundaries. Until this is done, the Court’s ambitious mandate to enforce the universality of human rights will never be fully realized.
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The need for a successful version of the ICC is important today. As Remembrance Day approaches, Canadians look back at World War II in part to mourn those who suffered and were loss during the horrors of the Holocaust. Today, many people are unaware that genocides are not a thing of the past. The author of this article points out many examples of individuals who commit genocide and are consequently charged with crimes against humanity from the ICC. Yet, these warrants are meaningless until the ICC attains the power and support needed to follow through with their goals.
ReplyDeleteI believe that the UN has a critical role to play in supporting the ICC, but this is greatly weakened by the lack of support for the ICC from the US. America is a nation willing to use power and might to influence foreign affairs, yet they actively refrain from using this power to support the ICC. Unfortunately many Americans are not aware of the ICC or its purpose.
As a Canadian, I believe that awareness and support is essential for an organization that protects human rights and penalizes war criminals who would otherwise go unpunished. Therefore, the ICC needs to continue their efforts to grow with or without the US, and Canada should be among its main supporters as we stand for human rights and equality.
This article does an excellent job of highlighting some of the ICC’s flaws and opportunities; and as a global citizen I hope to someday see the ICC become an influential presence in our world.
-Danielle Boucher, UWO Grad 2012