Building vibrant and tolerant democracies
(Read the full article here or download it below) - By Chris Gevers, University of Kwa-Zulu Natal
What is international criminal law?
The term international criminal law is used to describe the body of norms that govern the prosecution of international crimes by both domestic and international courts. Today, international criminal law is one of the most highly developed fields of international law and a key feature of both international and domestic politics. Its rise to prominence is testament to the global community’s commitment to combating impunity for the most serious human rights violations and atrocities.
What are international crimes?
The three ‘core’ international crimes are war crimes, crimes against humanity and genocide.
War crimes are serious violations of international humanitarian law that take place during armed conflicts. They include (amongst others): the unlawful targeting of civilians and those wounded during the course of hostilities; the severe mistreatment of both soldiers and civilians (torture, etc.); the use of prohibited methods of warfare such as the excessive use of force, the use of human shields and hostage-taking; and the use of prohibited means of warfare (such as weapons that cause unnecessary suffering).
Crimes against humanity were initially introduced to cover atrocities committed against the civilian population in times of armed conflict. Today, they include certain inhumane acts committed as part of a widespread or systematic attack against a civilian population, whether in a time of peace or armed conflict. These inhumane acts include murder, torture, sexual violence, deportation, enslavement and enforced disappearances, amongst others.
Similarly, the crime of genocide involves the commission of certain inhumane acts, namely: killing, causing serious bodily or mental harm, deliberately inflicting conditions of life calculated to bring about the destruction of a group, measures intended to prevent birth, and forcibly transferring children from one group to another. However, in order to qualify as genocide, these acts must be committed with the intention to destroy a national, religious, ethnic or racial group in whole or in part.
These three core international crimes are currently prosecuted by the International Criminal Court (ICC) as well as numerous domestic courts where the States have adopted legislation providing for such prosecutions.
Subject to the entry into force of an amendment to its founding statute, the ICC will also be able to prosecute the crime of aggression as of 2017. According to that amendment, an act of aggression is defined as the use of armed force by one State against another State – such as launching an invasion or attack, blockading ports, or sending armed groups or mercenaries – which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations. The individuals who are responsible for the planning, preparation, initiation or execution of acts of aggression will be guilty of the crime of aggression.
In addition, there is support for expanding the list of international crimes to include torture, terrorism and grand corruption (see Robin Palmer’s article). However, while the four abovementioned crimes are undoubtedly crimes under customary international law, and therefore universally outlawed, there remains some doubt about the customary character of other putative international crimes.
How is international criminal law enforced?
International criminal law is enforced by both domestic and international courts. The first international prosecution of these crimes took place after World War II, when the International Military Tribunal at Nuremburg was established by the Allied powers (Britain, France, the United States and Russia) in 1945 to try ‘the major war criminals of the European Axis’ for violations of the laws of war, crimes against the peace and crimes against humanity. The Nuremberg trial had a profound effect on the development of international criminal law. In fact, many people believe it represents the ‘birth certificate' of the discipline. It was followed in 1946 by the International Military Tribunal at Tokyo, set up ‘for the just and prompt trial and punishment of the major war criminals in the Far East’.
The unanimity that existed in the aftermath of World War II dissipated as the Cold War set in. As a result, the next international courts were only established nearly half a century later when the United Nations Security Council created two ad hoc tribunals to prosecute international crimes committed in the former Yugoslavia (the ICTY) and during the 1994 Rwandan genocide (the ICTR). These ad hoc tribunals were established by the Security Council acting under Chapter VII of the UN Charter – which tasks the Council with the maintenance of international peace and security. Then, in 1998, states adopted the Rome Statute of the International Criminal Court (ICC), which established the first permanent international court for the prosecution of international crimes.
Brief mention must also be made of the ‘hybrid tribunals’ that emerged in the late 1990s, such as the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia and the Special Tribunal for Lebanon. These courts are neither purely domestic nor international – rather their founding documents, jurisdiction, composition and funding are a mixture of the two.
The enforcement of international criminal law by international courts is usually given more media and scholarly attention than the domestic prosecutions of these crimes. As a result, many see international criminal justice as ‘justice delivered by international courts’. However, this underestimates the importance of domestic prosecutions in both the development of the field and its enforcement. The fact is that for much of the 20th century – in the absence of an international enforcement mechanism for international crimes – international criminal law was primarily the concern of domestic courts. The four 1949 Geneva Conventions, for example, contain a provision setting out an obligation on states, through their domestic courts, to either prosecute individuals alleged to have committed or ordered the commission of grave breaches of the Conventions (i.e. war crimes) or extradite such persons to another state willing to do so. Similarly, the 1948 Genocide Convention contains a provision stating that individuals charged with committing genocide ‘shall be tried by a competent tribunal of the State in the territory of which the act was committed’ or by an international court such as the ICC. Even with the resurgence of international prosecutions, and the establishment of a permanent international court (the ICC), domestic prosecutions remain essential to the enforcement of international criminal law. In fact, under the ICC’s principle of complimentarity, domestic courts remain the preferred forum for delivering justice for international crimes.
In order to facilitate these national prosecutions, international law has evolved to allow states to exercise universal jurisdiction over individuals accused of international crimes. Traditionally, states’ ability to prosecute and punish crimes (i.e. exercise criminal jurisdiction) was limited to crimes that take place within their borders. The exercise of criminal jurisdiction by a state over events that take place outside its borders was limited to circumstances where there was some other link between the state and the crime in question: such as when the accused or the victim of the crime was a citizen of that state. However, under the principle of universal jurisdiction, states can exercise criminal jurisdiction ‘based solely on the nature of the crime, without regard to where the crime was committed, the nationality of the alleged or convicted perpetrator, the nationality of the victim, or any other connection to the state exercising such jurisdiction’.
While the exercise of universal jurisdiction remains contested by some, a growing number of states accept it as a basis for exercising jurisdiction, at least in principle, over war crimes, crimes against humanity and genocide. Since the entry into force of the Rome Statute in 2002, a number of states (including South Africa) have adopted implementing legislation providing for the exercise of universal jurisdiction provisions over international crimes by their domestic courts. Furthermore, the existence of such jurisdiction is supported by the Preamble to the Rome Statute which: ‘[a]ffirms that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation...’.
What is the International Criminal Court?
The ICC is the culmination of efforts that began well over a century ago in 1872 when Gustave Moynier (one of the founders of the International Committee of the Red Cross) proposed the establishment of an international tribunal to punish violations of the Geneva Convention of 1864. Following the atrocities committed during World War II, and the successful trials at Nuremburg and Tokyo, the UN General Assembly passed a resolution calling on the International Law Commission (ILC) to ‘study the desirability and possibility of establishing an international judicial organ for the trial of persons charged with genocide or other crimes’.
However, the Commission’s work stalled in 1954 and was only formally revived in 1989, when the UN General Assembly once again asked the Commission to address the issue. As a result, in 1994 the ILC completed a draft of what would become the Rome Statute. This led the General Assembly to convene the UN Diplomatic Conference of Plenipotentiaries on the Establishment of a Permanent International Criminal Court in Rome from 15 June to 17 July 1998 to negotiate and agree the final text of a treaty establishing a permanent international court. At the end of this marathon meeting, 120 states adopted the Rome Statute of the International Criminal Court. Senegal was the first state to ratify the Rome Statute, which entered into force on 1 July 2002.
Under the Rome Statute, the ICC is tasked with prosecuting genocide, crimes against humanity and war crimes. A State that becomes party to the Rome Statute authorises the ICC to exercise jurisdiction over these crimes when they are committed by their nationals or on their territory. The ICC’s jurisdiction can then be ‘triggered’ either by that State or by another State that is party to the Rome Statute, or by the Prosecutor acting on his own initiative (with the authorisation of the ICC Judges). For example, having ratified the Rome Statute in June 2002, Uganda referred the situation in the north of the country to the Court in December 2003. Meanwhile, the Democratic Republic of the Congo (DRC) became a party to the Rome Statute in April 2002 and two years later the government triggered the exercise of jurisdiction over its territory by asking the Prosecutor to investigate crimes within the jurisdiction of the ICC allegedly committed in the DRC since the entry into force of the Statute. The first case to be triggered by the Prosecutor on his own accord related to the 2008 post-election violence in Kenya.
There are two additional ways that the ICC can exercise jurisdiction when the State concerned is not a party to the Rome Statute.
Firstly, a State that is not party to the Rome Statute can lodge a declaration with the Court accepting its exercise of jurisdiction over a particular situation. This happened in the case of Ivory Coast, which lodged a declaration with the ICC in April 2003 accepting the Court’s exercise of jurisdiction over acts committed on its territory since September 2002. Notably, the Palestinian Authority has attempted to lodge a similar declaration in respect of the crimes committed in Gaza, but the Prosecutor is yet to rule on whether it can be considered a State for these purposes.
The second is when the UN Security Council refers a situation to the ICC for investigation and possible prosecution, acting under Chapter VII of the UN Charter. The Council has done so on two occasions: the first was in March 2005 when the Council passed Resolution 1593 referring the situation in Darfur (Sudan) to the ICC, while the second was in February 2011 when the Council passed Resolution 1970 referring the situation in Libya to the ICC. The role given to the Security Council to refer matters to the ICC – and defer proceedings for a period of one year – is extremely controversial, particularly among African states that see the Council as unrepresentative. This role is the result of a political compromise between the States that negotiated the Court’s founding treaty in Rome in 1998, which had divergent interests and very different views on the legitimacy of the Security Council and its role in maintaining international peace and security. One might add that the role the Council plays under the final Statute is significantly diminished, not least because of the efforts of African states in Rome. Nevertheless, the fact that the Council plays any role in the Court’s functioning remains a central concern for African States, which has been exacerbated by the fact that the Council has so far only used this power to refer African States to the ICC.
Crucially, just because the ICC has jurisdiction over an international crime does not automatically mean that it will prosecute the individuals concerned. This is because at the heart of the Rome Statute is the principle of complimentarity, in terms of which the ICC will only prosecute an individual if the State concerned is unwilling or unable to prosecute the offender domestically. This principle – reflected within Articles 1 and 17, as well as the Preamble to the Rome Statute – is a novel idea. Effectively, it affords States primary jurisdiction over international crimes committed within their jurisdiction. The principle ensures that the ICC reinforces the criminal justice systems of States at a national level, as well as the broader system of international criminal justice. The principle proceeds from the belief that national courts should be the first to act. Aside from assuaging the concerns of States over the potential usurpation of their national sovereignty, the principle carries with it other important consequences, such as the recognition of: the need for full participation by victims; the practicality of local prosecutions; and, the practical limitations of a court with potentially universal jurisdiction.
In order to give effect to the principle of complimentarity, a number of States have amended their laws to allow for the prosecution of core international crimes within domestic courts. From an African perspective, South Africa, Kenya, Uganda, Burkina Faso and Senegal have all done so either through specialised Acts of Parliament or through amendments to their criminal codes. A number of other countries are also in the process of doing so.