International criminal courts are judicial bodies used to try individuals for violations of international law, most often crimes committed during wartime. Traditionally, such tribunals were set up on an ad hoc basis, designed to try political and military leaders for offenses committed during particular armed conflicts. In 2002, the international community established the International Criminal Court (ICC); this is a standing court intended to try individuals for offenses including war crimes, genocide, and crimes against humanity.
Legal Basis of International Criminal Courts
The relationship between international criminal courts and domestic law is complex. The modern state system is predicated on the principle of state sovereignty, namely the idea that the government of a country is the highest legal authority inside its territory. Theoretically, this makes the government the only authority able to set and enforce criminal penalties against its citizens and officials. International criminal courts, however, challenge the authority of the state, claiming jurisdiction over its citizens to hold them accountable to international law.
International criminal courts also highlight the challenges of enforcing international law. Although there are a multitude of treaties that enjoy the support of a majority of countries, absent an international government with policing and judicial powers, treaty violations by government leaders often go unpunished. International courts represent an attempt to mitigate this international anarchy; as the historical record demonstrates, however, the cooperation of powerful countries is often a necessary condition for a successful criminal prosecution.
The International Military Tribunals for Nuremberg
The International Military Tribunals for Nuremberg, convened to try Nazi officials for crimes committed during World War II, set a precedent for the use of criminal trials to punish conduct in wartime. In November 1945, 24 men, considered the most important political and military leaders of the Third Reich, were indicted on various changes, including war crimes, crimes against peace, crimes against humanity, and conspiracy to wage aggressive war. The charges were based on existing treaties and customary international law prescribing proper conduct in wartime. The trial resulted in the convictions of 19 of the defendants, with punishments including death and life imprisonment. The tribunal was a model for the 1946 International Military Tribunal for the Far East, which tried Japanese war criminals.
Ad Hoc Criminal Tribunals
Decades of Cold War deadlock precluded any sustained cooperation between the superpowers in the development of international courts. In the 1990s, however, the end of the Cold War gave way to a series of violent conflicts, most of which involved long-standing ethnic tensions. In the aftermath of these conflicts, the United Nations set up tribunals to try the perpetrators.
In 1993, the United Nations (UN) Security Council established the International Criminal Tribunal for Yugoslavia (ICTY). The court was designed to try the individuals who participated in the large-scale violations of human rights that occurred during the wars accompanying the dissolution of Yugoslavia. These crimes included deportations, mass executions, mass sexual assaults and rapes, and the establishment of concentration camps. The ICTY began issuing indictments in 1994, and trials began in 2004. As of May 2013, more than 161 individuals have been indicted; the ICTY has concluded proceedings for 136 defendants, and 69 were convicted and sentenced. In 1999, the tribunal indicted Serbian president Slobodan Milosevic; he died in 2006, before his trial was completed.
In 1994, in response to the genocide in Rwanda committed by members of the Hutu ethnic group, the Security Council established the International Criminal Tribunal for Rwanda (ICTR). Those indicted by this court included elected officials who organized the genocide, as well as entertainers and members of the clergy who spread propaganda and encouraged violence against the Tutsi ethnic group. The court tried its first case in 1997, and as of May 2013, the tribunal had completed 38 cases, 28 of which resulted in convictions. Among those convicted was Jean Kambanda, the interim prime minister at the time of the genocide; in 1998 he plead guilty to six charges and was sentenced to life imprisonment.
The International Criminal Court
The conflicts during the 1990s led to a renewed push for a permanent court to try war crimes and crimes against humanity. In 1996, the UN authorized a committee to begin drafting the statute for the ICC; subsequently, in 1998, the UN presented the Rome Statute of the International Criminal Court. According to the Rome Statute, the ICC has the authority to try individuals who commit four types of crimes: genocide, crimes against humanity, war crimes, and crimes of aggression. The ICC differed from previous criminal tribunals, which operated with jurisdiction that was temporally and geographically limited. Specifically, the ICC theoretically maintains universal jurisdiction, namely the authority to indict and try individuals for these crimes, wherever and whenever the crimes occurred (provided that they happened after the formation of the ICC). In the past, perpetrators of war crimes and crimes against humanity often went unpunished, since ad hoc tribunals were rare and national courts declined to prosecute their own citizens for crimes committed during armed conflicts.
This ICC’s power, however, is circumscribed in several ways. First, the ICC operates with the principle of complementarity; specifically, national courts retain the right to try individuals who are charged by the ICC. The ICC will only prosecute an individual if that person’s domestic government lacks the administrative capacity to conduct a trial; alternately, the ICC will conduct the trial if its officials judge that a government is conducting a sham trial to shield an official from punishment. In addition, the ICC relies on states to enforce its warrants; it does not have a police force and cannot physically arrest individuals if their government refuses to turn them over. Similarity, the ICC lacks subpoena power and cannot compel an individual to appear before the court to testify.
Cases reach the ICC in one of three ways. A member state or the UN Security Council can refer a situation to the ICC; alternately, the ICC prosecutor can initiate an investigation. Once the prosecutor’s office receives a referral, it initiates a preliminary investigation to decide whether to proceed with a formal investigation. At this stage, a key consideration is the gravity of the alleged crime, usually measured by the number of victims. At the conclusion of a formal investigation, the prosecutor can elect to file charges and initiate trial proceedings. The court and its detention center are located in The Hague, Netherlands.
The Rome Statute was overwhelmingly supported by the international community; it came into force in 2002, when the 60th country ratified it. As of May 2013, 122 countries have ratified the Rome Statute. China, India, and Pakistan are among the nonmembers. Others, including Russia, Iran, Syria, and Algeria, have signed the treaty but have not ratified it. Both the United States and Israel have indicated that they will no longer seek membership.
Cases Before the ICC
So far the court has dealt with 118 cases, stemming from eight different global conflicts. Notably, the court has only formally investigated cases in the southern hemisphere, prompting concerns about bias. The court’s first conviction came in 2012, when Thomas Lubanga Dyild, a warlord from the Democratic Republic of the Congo, was convicted of war crimes for using child soldiers during the 2002 to 2003 civil war. The court has also issued five indictments stemming from the conflict in Darfur, including charges against the president of Sudan, and the leader of the progovernment Janjaweed militia; the Sudanese government will not cooperate with the court, and these individuals remain at large. In addition, the ICC opened an investigation into the crimes committed in Uganda by Joseph Kony and the Lord’s Resistance Army (LRA). The ICC has also investigated events in Libya, the Ivory Coast, Mali, and Kenya.
The United States and the ICC
Although the United States played a key role in earlier criminal tribunals, it has had an adversarial relationship with the ICC. In 2000, President Bill Clinton signed the Rome Statute; however, he expressed reservations about the court and declined to submit the treaty to the Senate for ratification. Clinton’s successor, George W. Bush, was openly hostile to the ICC. He withdrew the U.S. signature and made clear that his administration would take no further action toward ratifying the treaty. Subsequently, in 2002 the U.S. Congress passed the American Service-Members Protection Act. This required the president to use “all means necessary and appropriate” to free members of the U.S. Armed Forces if they were taken into custody and charged by the ICC. The administration of Barack Obama did not put forward a formal policy toward U.S. involvement in the ICC.
Bibliography:
- Barbour, Emily C. and Matthew Weed. “The International Criminal Court (ICC): Jurisdiction, Extradition, and U.S. Policy.” Congressional Research Service Report. http://www.amicc.org/docs/R41116_20100316.pdf (Accessed May 2013).
- Bassiouni, M Cherif, ed. The Legislative History of the International Criminal Court. Ardsley, NY: Transnational, 2005.
- International Criminal Court. http://www.icc-cpi.int/EN_Menus/icc/Pages/default.aspx (Accessed May 2013).
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