By: Bavo Stevens
This profile on the International Criminal Court (ICC) marks the beginning of a blog series that aims to explore how the international community prosecutes individuals who have grossly violated international law. Following this profile on the ICC will be a series of posts about some of the current head prosecutors of the ICC and other international tribunals.
2002 marked an important milestone for International Law with the creation of the International Criminal Court (ICC). A highly unique body in the international realm, the ICC has been a controversial addition to the global justice system. It is thus far the first—and only—international judicial body capable of bringing individual perpetrators to justice.
The ICC’s early roots can be traced back to the end of the Cold War. During the early 1990’s certain tribunals, like the International Criminal Tribunal for the former Yugoslavia and for Rwanda, were set up to try individuals accused of severe war crimes in those conflicts. These tribunals acted as important precedents for the ICC. They demonstrated the international community’s commitment to stop individuals from acting without impunity. However, since these tribunals were temporary and could only try crimes committed during these specific conflicts, it was decided to create a permanent international body that could prosecute other war crimes. As such, the 1998 Rome Statute allowed for the creation of the ICC. Its current headquarters are located in The Hague, Netherlands.
As it exists now, the ICC’s aim is to try those individuals accused “of the most serious crimes of international concern”. What this means is that the court focuses on acts of genocide, crimes against humanity, and war crimes committed anywhere around the world. It acts as a court of last resort, only intervening when national proceedings have proven to not be genuine.
The ICC does exist with several notable limitations. The court has no retrospective jurisdiction, which means that it cannot try any crime committed before the 1st of July 2002. It also relies almost entirely on national police services to arrest and transfer criminals to The Hague. This has been met with mixed results. Mr. Bemba, former vice-president of the Democratic Republic of the Congo, for example, was arrested in Brussels in 2008. But the court still has an outstanding arrest warrant against Sudanese President Omar al-Bashir, with several ICC signatory countries, the BBC notes, refusing to co-operate in his arrest.
Indeed, the ICC has not been without its fair share of criticism. Opponents of the ICC have expressed fear of prosecutors initiating proceedings that are politically motivated. Laura Barnett, a member of the Legal and Legislative Affairs Division of the Canadian Parliament, highlights several of these concerns in her paper discussing the merits of the ICC. In her paper, she quotes John R. Bolton, former American Permanent Representative to the UN, who expressed concern that the President of the United States and members of the presidential cabinet could become ‘“real potential targets of the politically unaccountable prosecutor”’.
African leaders have also criticized the court for being heavily biased—all of the cases currently open are in Africa. In fact, the courts first verdict was against Thomas Lubanga, the leader of the militia in the Democratic Republic of the Congo who was convicted for his use of child soldiers.
Another common criticism that Barnett notes is that the ICC could act as a barrier to peace and reconciliation. In the past, amnesty for war crimes has occasionally been granted, such as in South Africa and Chile, in order to end further conflict. However, some argue the potential prospect of being tried by the ICC for war crimes might make leaders more hesitant to approach the negotiation table.
Barnett does attempt to address these concerns in her paper. She notes, for example, that the ICC has a review process to avoid politically motivated prosecution. It also takes great strides to avoid being an obstacle to peace. These concerns seem legitimate to several countries, including the United States, who has signed but not ratified the treaty.
One must remember, however, that the ICC is very much an experiment in international justice. It is a novel idea that will have striking consequences for the international community. As the court continues to try war criminals it will develop into a more effective institution. It has already accomplished a lot in its short existence. We can only wait and see how it does in the future.
Bavo Stevens is a second year in the College.