The International Criminal Court

The world is continually getting smaller. Today, someone can connect with another person on the other side of the planet, businesses outsource their production jobs to third-world countries, and sovereign states throughout the world seem to be fighting separationist movements on an annual basis. With the world shrinking day by day and borders of nations becoming more obsolete, rule of law in once country may not be held applicable in a neighboring or far off nation. Some nations have become so corrupt that they commit unthinkable crimes against their own people, such as the genocide in Darfur. In the past few decades, there have been numerous multinational organizations and treaties set up and created in order to provide international tranquility and peace. The International Court of Criminal Justice, or the ICC, is one such organization and although the United States does not put as much support behind the ICC as other sovereigns, it is slowly becoming an international force and provider of justice on an international scale but could soon dissipate.

The International Criminal Court has jurisdiction primarily over genocide, crimes against humanity and war crimes.[1] There has never been a court or for that matter a stage in which criminal prosecutions could take place on an international scale dealing with human rights under international law. The genocide in Rwanda is a perfect example of a case that would be brought before the ICC if it had been formed at the time in which those atrocities were taking place. Now of course, the biggest international problem dealing with human rights on an international scale that is also at the forefront of the news, are the human rights violations taking place in the western part of the African country of Sudan, known as Darfur. Government's across the planet are steering clear of calling these actions a "genocide" due to the fact that if they did, under the outlines of the Geneva Convention they would be required to act. Another thing the establishment of the ICC brings to the table is the fact that it creates a multilateral institution controlled by the countries of the world, made by the political resolve of the states involved that are willing to chase and turn in suspects that require international justice, supply proper evidence, and properly fund it.[2]

The International Criminal Court was established and implemented on July 1, 2002 by the Rome Statute of the International Criminal Court, where sixty states became a party in this international cooperation and in July of 2007, Japan joined the International Criminal Court Statute which brought the number of parties to 105.[3] However, many people agree that without the formations and usage of other international courts, the International Criminal Court would have never come into existence. Richard J. Goldstone, a judge in South Africa and the United Nations international war crimes prosecutor in Yugoslavia and Rwanda, states that the International Criminal Tribunal for Yugoslavia (ICTY) and Rwanda (ICTR) were instrumental in the creation of the ICC.[4] These two tribunals were set up to bring justice to two areas that were submerged in acts of crimes against humanity and the rigor and successfulness of the tribunals paved the way for a well-functioning international court of criminal justice. Yet still, as more and more countries continue to join the International Criminal Court, nations and populations around the world are beginning to question if the court will impede upon the sovereignty of the nations that have joined.

Although it may seem like an international and new world idea for a globalizing world, the creation of the ICC has not been all smooth sailing. Not every country in the world supports its existence, including the United States. From the beginning, the creation of the ICC has been a very political debate and that debate rages on today.

During the time of its inception, President Clinton's administration signed the Rome Treaty, but then in 2002 it was "unsigned" by President Bush and then it was publically announced that the administration was opposing the said court.[5] The United States has a history of being the peace maker between nations and other nations and nations and their people when it comes to crimes against humanity, as demonstrated in the Nuremburg Trials after World War II which a war tribunal held high ranking Nazi officers and officials accountable for the crimes they committed during what is now known as the Holocaust. Why then, would the world's super power, one that preaches to other nations to the right thing, one that constantly holds other nations accountable for their actions, not sign the Rome Statute which established the ICC? Some believe that the United States wishes to remain the sole superpower in the world and that by establishing a judicial administration that provides justice for the international community would mitigate the influence their legal system has on the rest of the world.

Whatever one may choose to think or believe, to this day the United States remains absent from the ICC supporters and signers of the Rome Statute, but they are not the only nation to do so. Other nations across the globe do not support the ICC and have yet to sign the Rome Treaty, such as India, China and Russia. However, the European Union (EU), which is often considered the most powerful multi-national organization in the world, is making the signing of the treaty a requirement to join their ranks.[6] When it boils down to it though, from the inception of the ICC, there have been two prominent political debates that always seem to resurface when discussions and arguments are brought about in knowledgeable circles.

The first debate during the creation was the idea that a creation of an international court is going to begin to bring about the demise of state sovereignty.[7] The International Criminal Court though does not have supreme jurisdiction, they can only act and rule upon a case if the country involved is unwilling or genuinely unable to investigate or prosecute.[8] Also, the United Nations Security Council, which includes the United States, Great Britain, China, and Russia, has the power so suspend any case they choose for a new renewable twelve month period.[9] This would seem to silent many of the critics who claim that an established international court will mitigate nation's sovereignty, but they seemed unconvinced by the limitations placed on the ICC.

The second debate revolves around the wording of a particular statute. At the instance of the United States, who initially was part of the ICC, a war crime statute states

"Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct military advantage anticipated..."[10]

Critics argued that the wording in this statute is too vague and can easily encompass any number of circumstances deemed appropriate by the ICC.[11] At the time of the creation of the ICC, the United States threw its weight behind the aspect of having an international court; the lone super power has drifted away from the concept and along with some other powerful nations moved into opposition of the Court.

Many critics claimed that the International Criminal Court was nothing more than a European Union creation with the support of poor nations throughout the world who on a world stage could not hold a candle up to the countries that are opposing it.[12] The only thing that the rising ratification numbers of the ICC show is that the international order is falling towards officially recognized states rather than independent sovereignties.[13] Even with the backing of the European Union, during the time the ICC was being created, even some of the most powerful countries in Europe were at odds over the power and the jurisdiction of the Court. Notably, France and Germany were at odds over the powers of the court. Germany was in favor of a court with broad powers, sometimes superseding the sovereignty of established nations in order to create a stronger more stabilized international community of justice, while France was more in line with the United States in wanting less powers to the proposed court and more emphasis on the sovereignty of nations.[14] In the end, France conceded to the wishes of the other nations with Germany's likeminded approach and settled for a clause in the Treaty that would give a nation the right to opt-out of the jurisdiction of the court in the initial seven year period.[15]

It is clear to see that it is almost impossible to form an international court with the backing of every nation behind it. There will always be arguments over jurisdiction, power, and sovereignty and more often than not, the richer more powerful nations will create a court that will cater to their needs and whims while leaving out the poorer nations of the world. The International Criminal Court was created in an attempt to bring some of the most heinous criminals in the world to justice through a just system that would encompass international law. In the end, as in the beginning, the world remains divided on the aspect as to whether or not an international court of criminal law is the best thing for everyone, but as it exists in the present, it will try to bring justice to a world that seems to be torn apart daily by greed, crime, corruption, and murder.

However, one of the strongest points of the International Criminal Court is the use of an influential and powerful prosecutor. The first prosecutor elected to the ICC in April of 2003, was Argentinean lawyer Luis Moreno Ocampo, who holds down a term of nine years and promised after his election a court that will bring swift justice to distant and more often than not uneducated victims.[16] Along with the aforementioned jurisdiction of the Prosecutor, he is allowed to initiate an investigation from the referral of any state party or from the United Nations Security Council and can initiate investigations on the basis of information on crimes within the jurisdiction of the Court attained from individuals or organizations.[17] The election of a strong and educated prosecutor in the ICC will provide the international community with a sense of comfort when it comes to cases that are brought before the court.

Since the International Criminal Court was just established, it is almost necessary for them to answer questions regarding some of the world's most dubious problems and inherently evil individuals. As in most courts, the ICC does not retain jurisdiction over matters that have already happened. The ICC Statute was entered into international law in July of 2002, and no offense committed before that time can be brought before the court, no matter how heinous or horrific.[18]

However, the world has seen its fair share of human rights violations, war crimes, and crimes against humanity since 2002, and up to the present time, only four cases have been brought to the attention of the ICC, three brought by a country who found violations within their own borders. Within the time span from when the ICC was created to 2005, a course of less than two years, three countries brought their cases to the attention of the Court, Uganda, the Central African Republic, and the Democratic Republic of Congo.[19] In March of 2005 the United Nations Security Council decided to refer the case of Darfur, a region in the Sudan to the ICC.[20] Not until a year later in March 2006 did the ICC take its first suspect into custody, Thomas Lubanga Dyilo, a Congolese militia leader.[21] One of the main things that stands out about all of the cases that have been brought to the ICC is the fact that all four countries are located in Africa and many strong political influences view this as a sort of racism, while supporters of the ICC state simply that this is where the most rampant violations of international law are taking place.

Referring to the Democratic Republic of the Congo, the International Criminal Court is conducted three relevant cases, The Prosecutor v. Thomas Lubanga Dyilo, The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, and The Prosecutor v. Bosco Ntaganda.[22] Ntaganda has not yet been brought in by the ICC, so his case is just in the pre-trial stage, while the case against Lubanga has moved into trial at The Hague in the Netherlands, the home of the International Criminal Court along with Katanga and Chui whose trial just started Tuesday.[23] Lubanga is being charged as a co-perpetrator of war crimes that consisted of enlisting children under the age of 15 into his organization the FPLC (Patriotic Forces for the Liberation of Congo) and using them in armed conflict.[24] Katanga and Chui are up on counts of war crimes, including rape, sexual slavery, and attacks against civilian populations, and crimes against humanity, including murder, rape, and sexual slavery.

The situation in Uganda holds four people against the Prosecutor, Joseph Kony, Vincent Otti, Okot Odhiambo and Dominic Ongwen, who are the top four members in the LRA, the Lord's Resistance Army.[25] The case was originally brought up against the top five members of the LRA, but the death of Raska Lukwiya has ended the proceedings against him.[26] All of the issues of arrest were issued in October of 2005.

The final situation brought about by a sovereign state was in the Central African Republic. The case is against Jean-Pierre Bemba Gombo and it is currently in the pre-trial stage of prosecution.[27] Referred to as Mr. Bemba by the ICC, he is being brought to trial on two counts of crimes against humanity, including war and rape, and three counts of war crimes, including murder, rape, and pillaging.[28]

As for the situation in Darfur, Sudan, probably the most infamous case in the world today, four men have been accused of breaking the Rome Treaty, Ahmad Muhammad Harun and Ali Muhammad Ali Abd-Al-Rahman (being charged together), Omar Hassan Ahmad Al Bashir, and Bahr Idriss Abu Garda.[29] Bahr Idriss Abu Garda voluntarily appeared before the Court in a pre-trial hearing in May of 2009, but is not in custody, and the other three men are still free in Darfur.[30] Al Bashir is still at large, but will be brought up on five counts of crime against humanity, including murder, extermination, forcible transfer, torture, and rape, and two counts of war crimes, including pillaging and attack civilian populations and individuals.[31] As for the case against Abu Garda, he was brought up on counts of pillaging, directing attacks against personnel in a peacekeeping mission, and murder, and the Pre-Trial Chamber I found that there were reasonable enough grounds to prosecute Abu Garda.[32]

The International Criminal Court in theory is a great institution that could be able to bring justice to the international community as a whole. The problem remains that some of the largest and strongest countries in the world do not support and are not part of the ICC and seemingly have no plans to ever join. Critics continue to bash the Court, saying that it diminishes the sovereignty of nations, the wording of the Treaty is too vague, and that the Prosecutor has not been living up to the standard that is needed to have a strong and applicable ICC. Some of the workers that have served under Ocampo and for the ICC believe that the Court's reputation and even its existence is at risk in the upcoming years.[33] If the ICC wants to remain in existence and execute justice on an international scale, they need to properly bring in and prosecute all of the criminals slated for trial, bring about a swift and just judgment, and most importantly be accepted by the countries of the world that have refused to join their ranks and condemn it. Getting the backing of the lone super power, the United States, would be a great step forward for the ICC and could bring about more backing from other countries that have yet to sign the Rome Treaty. The jury is still out on this international criminal judiciary as to whether or not it will last, but if a few battles go their way and they are willing to make compromises, the International Criminal Court may become one of the strongest international organizations in the world that will bring the most feared criminals in the world to justice.

[1] Roht-Arriaza, Naomi. (1999). Institutions of International Justice. Journal of International Affairs, Vol. 52, 473.

[2] Roht-Arriaza, Naomi. (1999). Institutions of International Justice. Journal of International Affairs, Vol. 52, 473.

[3] O'Callaghan, Declan. (2008). Is the International Criminal Court the Way Ahead? International Criminal Law Review, 8, 534.

[4] Goldstone, Richard J. (2009). Obstacles in International Justice, The Establishment and Efficacy of International Courts: An Interview with Richard J. Goldstone. Harvard International Review, 80.

[5] Rosenthal, John. (2004). A Lawless Global Court. Policy Review, 123, 29.

[6] Ibid., 30.

[7] Tucker, Robert W. (2001). The International Criminal Court Controversy. World Policy Review, 79.

[8] Flint, Julie & de Waal, Alex. (2009). Case Closed, A Prosecutor Without Borders. World Affairs, 23.

[9] Ibid., 23.

[10] Tucker, Robert W. (2001). The International Criminal Court Controversy. World Policy Review,,79.

[11] Ibid., 80.

[12] Rosenthal, John. (2004). A Lawless Global Court. Policy Review, 123, 31.

[13] Ibid., 31.

[14] Rosenthal, John. (2004). A Lawless Global Court. Policy Review, 123, 32.

[15]Ibid., 32.

[16] Flint, Julie & de Waal, Alex. (2009). Case Closed, A Prosecutor Without Borders. World Affairs, 24.

[17] International Criminal Court. (2009, November 26). Situations and Cases. Retrieved from http://www.icc-cpi.int/Menus/ICC/Situations+and+Cases/>

[18] Morrison, Howard. (2008). International Crimes and Trials. International Criminal Law Review, 8, 391.

[19] Flint, Julie & de Waal, Alex. (2009). Case Closed, A Prosecutor Without Borders. World Affairs, 24.

[20] Flint, Julie & de Waal, Alex. (2009). Case Closed, A Prosecutor Without Borders. World Affairs, 24.

[21] Ibid., 24.

[22] International Criminal Court. (2009, November 26). Situations and Cases. Retrieved from http://www.icc-cpi.int/Menus/ICC/Situations+and+Cases/>

[23] Ibid.

[24] Ibid.

[25] Ibid.

[26] Ibid.

[27] International Criminal Court. (2009, November 26). Situations and Cases. Retrieved from http://www.icc-cpi.int/Menus/ICC/Situations+and+Cases/>

[28] Ibid.

[29] Ibid.

[30] Ibid.

[31] Ibid.

[32] Ibid.

[33] Flint, Julie & de Waal, Alex. (2009). Case Closed, A Prosecutor Without Borders. World Affairs, 37.