Crimes Against Humanity and the Rise of International Criminal Law

Crimes Against Humanity and the Rise of International Criminal Law

Author: Joyston P. D’Souza
           (3rd Year BA.LLB.)
School of Law, Christ (Deemed to be University)
The end of the World Wars left the world with a sudden and immediate need for an international criminal justice delivery system on a magnitude not felt before. The International Military Tribunal at Nuremberg which followed, despite its primitive character was essential for the development of the international criminal justice system that we have today. Of equally great importance was the International Criminal Tribunal for the Former Yugoslavia which set many important precedents in judging crimes against peace. It was mainly set up to judge war crimes in the Balkans and to help victims voice out the horrors that they experience. Its decisions showed that individuals in powerful positions could no longer protect themselves from prosecution. Most important of all, the ICTY established the accepted norms for conflict resolution and post-conflict development.  Similar to the ICTY was the International Criminal Tribunal for Rwanda which was the first international tribunal to deliver verdicts against individuals for committing genocide. The ICTR was established by the United Nations Security Council to prosecute those individuals responsible for serious breaches in international humanitarian law committed in the territory of Rwanda and neighbouring countries between 2 January 1994 and 31 December 1994. The above three tribunals were all important milestones that aided in the establishment of the International Criminal Court. The ICC serves to investigate, and where warranted to try individuals charged with committing grave crimes against humanity, chiefly genocide, war crimes and crimes against humanity. However, the workings of the ICC have recently come under fire for numerous reasons, from having a racist agenda to avoiding difficult cases. This paper shall seek to discuss the development and establishment of the ICC, its effectiveness and the relevance it holds.
Keywords: Nuremberg, tribunal, ICTY&R, crimes against peace, war crimes
Aims and Objectives
     ·       To analyse the growth of international criminal justice and the events leading up to the             formation of the International Criminal Court
     ·       To analyse relevance and effectiveness of the ICC in the modern context
Scope and Limitations
The analysis and statements made in this paper shall be restricted to only the following:
      ·       The cases referred to the ICC
      ·       Critical analysis of the working of the ICC
Research Methodology: This paper shall adopt doctrinal research to critically analyse the effectiveness of the International Criminal Court in the modern world.
Statement of Problem
The International Criminal Court was many years in the making from the Nuremburg Trials to the International Criminal Tribunals for Rwanda and for the former Yugoslavia. However, the ideals embedded in the Rome Statute which established the ICC are now called into question following recent world events. Therefore, there is a need to provide an insight into the ICC and its relevance in the current world scenario.
    1.     JSTOR
    2.     HeinOnline
    3.     The International Criminal Court website
The growth in international relations and mutual cooperation has to led to the development of a global community, the likes of which have never been seen before. With rise of the global community, there arose the need for international institutions for arbitration and decision making in various fields ranging from environmental issues to global trade. The establishment of the United Nations was a giant leap forward in this direction. International law enforcement too was in need of a robust institution and this was achieved mainly through the establishment of the International Court Justice and the World Trade Organization. Criminal justice however, has been and entirely different issue requiring a whole different class of institutions.
The first significant step forward in achieving international criminal justice in the modern era was seen in the Nuremburg Trials. The response to the atrocities of the Second World War through the Nuremberg Trials was historic in that it was a pioneer in the development of international criminal law. Held over a span of 4 years from 1945 to 1949, the Trials consisted of a series of 13 trials held to try Nazi officials, military officers and others for crimes against peace and humanity. These Trials composed mainly of three constituent parts, ‘The International Military Tribunal’, ‘The Subsequent Nuremburg Proceedings’, and the ‘Zonal Trials’. The most prominent and best known of these was the ‘The International Military Tribunal’ (IMT) where 24 prominent Nazi military and political leaders where brought on trial. These were followed by the ‘Subsequent Trials’ which included the ‘Doctor Trials’ and the ‘Judges’ Trial’. The ‘Zone Trials’ were held in numerous countries such as Germany, Austria, Poland, France, and Israel and were mainly  for the “minor war crimes” as opposed to the “major” crimes that came under the scope of the first two.[1]
A more recent development in the field of international criminal justice preceding the ICC are the International Criminal Tribunals for Yugoslavia and Rwanda (ICTY&R). Significant progress was made by the ICTY in 1998 in punishing the perpetrators of region. It also established that prohibition against torture is jus cogens and that rape may constitute torture. As of December 1998, there were 58 accused and 22 indictments, the first international decision in command responsibility since World War II.[2]
1998 also saw the first ever genocide related conviction in the case of Jean-Paul Akayesu, who was convicted on 9 counts of genocide and crimes against humanity, by the International Criminal Tribunal for Rwanda. The Akayesu case also saw an expansive definition of rape and that rape may constitute genocide. As of 1998, 36 individuals were indicted out of which 27 were in custody.[3]

The Rome Statute

The United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of the International Criminal Court took place in Rome at the headquarters of the Food and Agricultural Organization from June 15 to July 17 1998. 160 state, 33 intergovernmental organizations and a coalition of 236 non-governmental organizations participated. The conference concluded with the adoption of the Rome Statute for the International Criminal Court by a non-recorded vote of 120 in favour, 7 against, and 22 abstentions. Of note was the fact that the United States of America indicated publicly its decision to vote against the same, while countries such as France, the United Kingdom, and the Russian Federation voted for the statute.
It was right at the drafting stage that it became clear that the statute involved many areas of international and criminal law such as international humanitarian law, criminal procedure, and extradition and human rights. The working draft submitted by the Preparatory Committee to the Rome Conference consisted of 116 articles, some of which were several pages long, with many options and hundreds of square brackets. Most of the articles had raw text and key policy issues of policy and jurisdiction and operation of the court had not yet been resolved.
The current statute I composed of the preamble and 13 parts including 128 articles. Its structure has remained unchanged from the one proposed by the Preparatory Committee. Three principles underlie the statute. This includes the principle of complementarity which establishes that the court may assume jurisdiction only when national legal systems are unable or unwilling to exercise jurisdiction.
The Rome Statute, after much deliberation, was therefore established the International Criminal Court.[4]

The International Criminal Court

So far, the International Criminal Court has opened investigations in 11 situations in 24 cases, with 5 cases closed and 2 on appeal. The Court’s Pre-trial Chamber has publicly indicted 41 people, issued warrants for 33, and summonses to 8 others, with 7 in detention. Proceedings against 23 are going on, with 12 at large as fugitives, 3 under arrest but not in the Court’s custody, 8 are at trial, and 1 is appealing his conviction.[5] In addition to presiding over international criminal cases, the ICC also has a trust fund for victims.
Some of the more notable cases of the ICC are:

1. The Bashir case (The Prosecutor v. Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09)[6]

Omar Hassan Ahmad Al Bashir was the first sitting president to be indicted by the ICC for directing mass killing, rape, and pillage against civilians in Darfur. He is allegedly criminally responsible for 10 counts of crime, including 5 counts of crimes against humanity, 2 counts of war crimes, and 3 counts of genocide. Since the ICC does not have any compulsive force, Al Bashir has not been arrested and the case remains in the Pre-Trial stage, till he is arrested and transferred to the seat of the Court in The Hague, due to the ICC’s policy of not trying individuals unless they are present in the courtroom.

2. The Al Madi Case (The Prosecutor v. Ahmad Al Faqi Al Mahdi ICC-01/12-01/15)[7]

Ahmad Al Faqi Al Mahdi was member of a Tuareg Islamist militia in North Africa called Ansar Dine. The arrest warrant alleged that Al Mahdi committed the war crime of intentionally directing attacks towards historical monuments or buildings dedicated to religion. Al Mahdi pleaded guilty and was sentenced to 9 years imprisonment. This case was the first time that the International Criminal Court had indicted someone for the war crime of attacking historic or religious buildings.

3. The Bemba Case (The Prosecutor v. Jean-Pierre Bemba Gombo ICC-01/05-01/08)[8]

Jean-Pierre Bemba Gombo was a politician in the Democratic Republic of Congo. Bemba was the president and Commander-in-Chief of the Movement for the Liberation of Congo. He was charged on 2 counts of crimes against humanity: murder and rape; and 3 counts of war crimes: murder, rape, and pillaging, all allegedly committed in the Central African Republic. He was found guilty and was sentenced to imprisonment for 18 years. Bemba has appealed against his sentence alleging a mistrial and citing errors in the trial chamber’s analysis of his superior responsibility. However, there have been no further hearings scheduled as of yet.

4. Ngudjolo Chui Case (The Prosecutor v. Mathieu Ngudjolo Chui ICC-01/04-02/12)[9]

Mathieu Ngudjolo Chui is a colonel in the Congolese Army and a former senior commander of the National Integrationist Front (FNI) and the Patriotic Resistance Front in Ituri (FRPI). He was arrested by the Congolese authorities and handed over to the International Criminal Court to stand trial on 3 counts of crimes against humanity and 7 counts of war crimes allegedly committed in 2003 in an attack against the Bogoro village in the Ituri district of the Democratic Republic of Congo). He was tried jointly with Germain Kataga who was held guilty while Ngudjolo was acquitted in 2012 and the acquittal was confirmed in an appeal in 2015, a move that has drawn criticism to the ICC.

5. Lubanga Case (The Prosecutor v. Thomas Lubanga Dyilo ICC-01/04-01/06)[10]

Thomas Lubanga Dyilo, from the Democratic Republic of Congo, founded and led the Union of Congolese Patriots (UPC) and was a key player in the Ituri conflict. Lubanga was arrested in 2016 and was the first ever person to be arrested under an ICC arrest warrant. He was charged with and found guilty of committing the war crime of enlisting and conscripting children under the age of 15 years and using them to participate actively in hostilities. He has been sentenced to a total of 14 years of imprisonment. The sentence was a landmark for the first permanent international criminal court.

The International Criminal Court was founded with the optimism that those responsible for genocide, war crimes, and crimes against humanity would be held to account. In spite of the many instances where the ICC has upheld this ideal, there are numerous criticisms directed at the ICC for its failure to step up and on many other accounts. The court is criticized for having a racist agenda, a flawed investigation process and prosecutorial strategy, as well as suffering from unacceptable delays. In addition to this, there also lies a political shortcoming in the form of the United States of America’s dissent and defiance. The USA which enthusiastically backed the International Criminals for the former Yugoslavia and Rwanda, has strongly opposed having anything to do with the ICC. Further, the USA has by means of cut-off threats and enticements, induced over a 100 countries to pledge that they will not turn over Americans, military officials or civilians, citizens of allied countries, or anyone working for the United States or its contractors to the ICC, regardless of their crimes,[11]a move that has caused resentment among the European Union and other signatory countries.
The ICC was established in 2002 and will only take up crimes that have been committed since its establishment and none from before the date.
The opposition by the USA also means complications in cases involving
US citizens and personnel, such as when the United Nations Security Council referred the Darfur massacres in Sudan to the ICC. The USA not only abstained from the Security Council’s decision, but also had to be given a promise that no US person would be indicted. The superpower position enjoyed by the US protects the country’s stance on immunity for its citizens. For a country that plays such a prominent role in world politics and global events, this stance places the authority of the International Criminal Court at risk.[12]
There is also the criticism of the ICC having a racist agenda. Virtually all the cases in the ICC have arisen from the continent of Africa. Although these cases have arisen due to referrals to the court by African countries themselves, they have still been cause for friction between the Court and certain countries. For example, Sudan and Kenya whose presidents are on the list of the ICC’s wanted persons.[13]
While situations such as Darfur and Libya have been referred to the Court, its limitations and inadequacy has been displayed through the non-referral of the Syrian conflict to itself due to disagreement between the permanent of the UN Security Council. There have also been other instances such as the atrocities committed in Sri Lanka which were also not referred to the ICC due to the Sri Lankan government having powerful friends.
Shortcomings in procedure have also become evident with the judging of various cases. Prominent among these is the Ngudjolo case, where the Court was under fire for acquitting the accused. While there was an appeal, the acquittal was upheld, mainly because the ICC procedure does not permit new evidence to be allowed in the appeal.[14]There was also the Lubanga case, where human rights groups have criticized the ICC for the narrow scope of charges that were brought against the accused. In addition to this, Lubanga’s lawyer also complained that the defence was given a smaller budget than the prosecutor, that evidence and witness statements were slow to arrive, and that many documents were so heavily censored that they were impossible to read.[15]The trials conducted by the Court, due to cases such as the Lubanga case, have been criticized by both parties, the defence and those seeking justice.

While the ICC comes under fire for many of its shortcomings, its establishment and working is a testament to the progress the world has achieved in the field of international criminal justice. The Court has been instrumental in the development of international criminal law, as well as contributing to the global justice delivery system, not to mention the upholding of the law on an international scale. Though the Court faces numerous restrictions in going about upholding the ideals it had been established to serve, the Court’s role is to be appreciated.
The International Criminal Court however, does not replace national jurisdictions. It merely complements them when necessary. The Court has so far chosen the easy way out while navigating political and diplomatic crises, a policy that risk creating a double standard that may prove detrimental to its integrity. While the ICC has been a significant step forward in the field of criminal law, greater steps remain to be taken for the growth and development of justice and the eradication of crimes against humanity.

[1] Burcu Baytemir, International Military Tribunal at Nuremburg: The Ongoing Reflections in International Criminal Law, The, 3 USAK Y.B. Int’l Pol. & L. (2010)

[2] Maury D. Shenk et al., International Criminal Tribunal for the Former Yugoslavia and for Rwanda, 33 The International Lawyer, , 549 (1999), (last visited Nov 29, 2017)

[3] Maury D. Shenk et al., International Criminal Tribunal for the Former Yugoslavia and for Rwanda, 33 The International Lawyer, , 552 (1999), (last visited Nov 29, 2017)

[4] Mahnoush H. Arsanjani, The Rome Statute of the International Criminal Court, 93 The American Journal of International Law , 22-43 (1999), (last visited Nov 25, 2017)

[5] Home, (last visited Mar 5, 2018)

[6] Al Bashir Case, (last visited Mar 5, 2018)

[7] Al Mahdi Case, (last visited Mar 5, 2018)

[8] Bemba Case, (last visited Mar 5, 2018)

[9] Ngudjolo Case, (last visited Mar 5, 2018)

[10] Lubanga Case, (last visited Mar 5, 2018)

[11] Patricia M. Wald, International Criminal Courts – A Stormy Adolescence, 46 Va. J. Int’l L. (2006)

[12] Patricia M. Wald, International Criminal Courts – A Stormy Adolescence, 46 Va. J. Int’l L. (2006)

[13] Kenyatta Case, (last visited Mar 5, 2018)

[14] Ngudjolo Case, (last visited Mar 5, 2018)

[15] Stephanie Hanson (17 November 2006), Africa and the International Criminal Court. Council on Foreign Relations. Retrieved 23 November 2006.

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