The International Criminal Court - An Idea Who's Time Has Come…

The International Criminal Court

– An Idea Who’s Time Has Come…

In July 1998, Rome, Italy witnessed the overwhelming approval of a statute to establish a permanent International Criminal Court (ICC). On April 11, 2002, the Rome Statute of the ICC received more than 60 ratifications required, and entered into force on July 1, 2002.

People from every corner of the world never give up the efforts to build a mechanism to avoid horrific and devastating crimes toward humanity, especially during the time of wars. However, the “Road to Rome” was not easy to walk through. In the latter part of the 19th century and the first half of the 20th, quite a few international agreements on the laws of war raised the hope that when conflicts broke out, there would be certain standards of conduct to reduce the horror impact of war on the individuals, communities and nations involved. Yet despite all these agreements to control wars, the 20th century turned out to be the most war-ravaged century in history. Wars in 20th century were more frequent and more brutal. In the past fifty years, more than 250 conflicts have erupted around the world; more than 86 million civilians, mostly women and children, have died; and over 170 million people were stripped of their human rights, their property and their dignity. The majority of the horrific crimes against innocent people were committed with impunity. The United Nations General Assembly first recognized the need of a permanent mechanism to prosecute the mass murderers and war criminals in 1948, following the Nuremberg and Tokyo trials after World War II. Now, more than 50 years after the founding of the UN, and over 10 years after the end of cold war, which makes the idea more viable, the dream of International Criminal Court comes true.

The main functions of ICC are different from those of the International Court of Justice, which is the principal judicial organ of the United Nations and designed to deal primarily with disputes between States while has no jurisdiction over matters involving individual criminal responsibility. “The ICC is an independent judiciary body capable of trying individuals and serving as a deterrent to the Hitlers, Pinochets and Milosevics of the future.”1

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The ICC will deal with the most serious crimes committed by individuals including genocide, crimes against humanity, war crimes and aggression. Genocide covers those prohibited acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group. Crimes against humanity are the acts when committed as part of a widespread or systematic attack directed against any civilian population, which include murder, extermination, rape, sexual slavery, the enforced disappearance of persons and the crime of apartheid, among others. War crimes cover grave breaches of the Geneva Conventions of 1949 and other serious violations of the laws of war, committed on a large scale in international as well as internal armed conflicts. The inclusion of internal conflicts is consistent with customary international law and reflects the reality that in the past 50 years, the most serious violations of human rights have occurred not in international conflicts but within States. The definition of aggression is a little ambiguous since it is hard to define whether an action is an aggression or legitimate peacekeeping action. So the Court will deal with the crime of aggression when the Assembly of States Parties has agreed on the definition, elements and conditions under which the Court will exercise jurisdiction. This cannot happen until a review conference has been held, seven years after entry into force of the treaty.

The founding of International Criminal Court is a milestone in the international law as well as of the human beings development. The ICC brings tremendous influence on human society. It can deter future war criminals, end impunity of criminals, help to solve regional conflicts, remedy the deficiencies of ad hoc tribunals, and take over cases when national judicial systems are unable or unwilling to act on. Among them, three aspects are most important.

First, the International Criminal Court will make international standards of conduct more explicit and more specific, provide an important mechanism for implementation of these standards and ensure that the perpetrators are brought to justice before the ICC when national Courts are unable or unwilling to do so. In the past, warlords and dictators could plan and commit mass rapes, extra-judicial executions, and other gross violations of international human rights with almost total impunity. In the International Criminal Court, the high-level government officials or military commanders could also be prosecuted. Criminal responsibility will be applied equally to all persons without distinction as to whether he or she is a head of state or government, a member of parliament, on an elected high-level official. In this case, the future Hitlers and Pinochets have to be very cautious in carrying out their guilty actions since even if they will not be prosecuted within their own countries, the ICC will also bring them to face the justice.

Second, “the bottom-line” of human rights can be agreed on by the force of ICC. Different countries have different cultures, different economies and different political situations. Their standards of human rights would also be different. It is hard to ask all the countries to comply with some universal human rights standard. However, the basic standard or the bottom-line should be made out for the all nations. Every person on the earth should be entitled to basic human rights including enough food, safe shelter, individual freedom, equal opportunity and so on. The ICC could be prosecution to those in power who violate these basic standards, which shows big progress in universal human rights development.

Third, under the influence of the International Criminal Court, the national courts of all the State Parties will tend to fulfill their obligations to ensure these crimes to be tried within their own borders. This is the reasonable outcome of the first aspect of ICC influence I mentioned. The national courts will try to take more responsibilities on these crimes that otherwise might go to the ICC than before since people tend to deal with their own conflicts and crimes by themselves. If there is difficulty for national courts to cope with crimes and try criminals fairly, the International Criminal Court is just standing at the back of the national courts. Not only is the ICC a good supplement of the national courts, but a catalyst to the development of a fair universal judiciary system.

Nevertheless, the International Criminal Court is also facing some serious problems. First, the ICC is often criticized for violating the national sovereignty. In order to carry out its obligations, the ICC has to use the right to prosecute crimes occurring in a State Party, or a country has to accept the Court's jurisdiction on an ad hoc basis, or the UN Security Council referred the case to the Court if the national court of the accused does not initiate a fair prosecution. This may compromise the nations’ basic sovereign right of managing their internal affairs exclusively. Secondly, some critics argue that it is very difficult to see that the ICC Statute can work in current international legal and political order. Who should arrest commanders of the military forces? How should Ariel Sharon, Saddam Hussein, Yasir Arafat, Russian generals involved in the Chechnya campaign or Chechen leaders be dealt with? These are all questions the ICC should answer. Finally, the ICC has not got the ratification from the US. It is hard to imagine how the ICC can carry out its obligations without the support or permit from the US, the only superpower in the world.

From Nuremberg and Tokyo trials to the ad hoc tribunals for the former Yugoslavia and Rwanda, then to the founding of the International Criminal Court, people of generations are pursuing the mechanism to make the international society more orderly and harmonious. Although there still exist many issues for the ICC to cope with, people with goodwill will always find good solutions. We are waiting for the coming of the time that the international Criminal Court could fully play its role in the prosecution of major criminals and bring enough deterrent to stop the serious crimes against humanity in the world.

References

1. www.cicc.org

Evo Popoff, Inconsistency and impunity in international human rights law: Can the international criminal court solve the problems raised by the Rwanda and Augusto Pinochet cases, The George Washington International Law Review; Washington; 2001
, Challenging the conventional wisdom: Another view of the international criminal court, Journal of International Affairs; New York; Spring 1999
Uncle Sam lays down the law; The International Criminal Court, The Economist; London; Oct 5, 2002
, Policy perspective favoring the establishment of the international criminal court, Journal of International Affairs; New York; Spring 1999