The International Criminal Court and ad hoc tribunals: really eliminating impunity?

COMMENTARY - Efforts to create a permanent international criminal court go back to before World War II. It took a long time and numerous discussions, meetings, debates and efforts before finally being able to effectively adopt the Rome Statute of the International Criminal Court (Rome Statute) in 1998. The International Criminal Court (ICC) started its functions in 2002 after receiving the minimum number of ratifications required. Before the creation of the ICC, a few ad hoc tribunals were created (some by the United Nations) such as the International Criminal Tribunal for Yugoslavia (ICTY) in 1993 and the one for Rwanda (ICTR) in 1995. The ICC was created as a permanent criminal court that has jurisdiction to prosecute most perpetrators of international crimes. Its revolutionary creation had the purpose to eliminate impunity. How can we then explain that after 7 years of conflict, the perpetrators of the most serious crimes in Syria still remain without prosecution and thus with impunity? The ICC and the ad hoc tribunals both have advantages and inconvenient that raise the following question: which system is more effective to the prosecution of the worst criminals and thus the elimination of their immunity? This analysis will first briefly explain both systems before describing the critics made towards them illustrated by examples and proposing solutions and recommendations to improve the situation. 

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Justice inequality - Source: Pixabay

Explanation of both systems

The ICC is the first permanent international criminal court.  According to articles 4 to 8 of the Rome Statute (1), its purpose is to prosecute all of the following crimes perpetrated on the territory of its 124 state parties or by nationals coming from one of the state parties: crimes against humanity, genocide and war crimes.

The ad hoc tribunals were mostly created by resolutions from the United Nations Security Council (UNSC) (2) and have a limited material and territorial scope, unlike the ICC. Indeed, they both prosecute crimes under international law that happened during the period of conflict in their country. This means that once the prosecutions and judgements are final, the tribunals cease to exist.

Critics and disadvantages

A few relevant critics have been raised concerning both systems. An important one, which has been expressed for the ICC and the ad hoc tribunals, is about the UNSC.  One of the reasons why it took so long to adopt the Rome Statute is all the discussions concerning the involvement and power that the UNSC would have in the ICC. It was finally decided that, according to article 13 b of the Rome Statute (3), the UNSC has the power, under  Chapter VII of the United Nations Charter, to bring any state (even non-state parties) in front of the ICC when they consider there is a breach to international peace or security.

These significant powers given to the UNSC have been deeply discussed during the drafting of the Rome Statute and were part of the conditions imposed in order for the international community to be able to create a permanent international criminal court.  They have been used twice: the UNSC referred the situation of the non-member states of Sudan in 2005 (4) and Libya in 2011 (5). The powers mentioned in the Charter are written in a large way and give a lot of space for interpretation, going from the creation of the ICTY/R to the authorization to use military measures (for example concerning the Islamic State) (6). Jumping back to the Rome Statute, it also states, in its article 16 (7) that the UNSC can obligate the ICC to hold any investigation or prosecution in a state, under its powers also given in Chapter VII. All of this information shows that practically all decisions in any of the 206 states in the world depend on the will of the 5 permanent UNSC member states. The same 5 states are protected by their veto right and 3 of them (China, the United States of America and Russia) haven’t ratified the Rome Statute yet (8). These rules not only protect nationals of the UNSC member states, but also nationals from states that have a certain relationship with them. For example, Israel, one of the biggest military powers of the world, as not ratified the Rome Statute and the violations committed by this country will probably not be referred to the ICC by the UNSC because of the veto right of the USA.

The UNSC has no obligation to identify a situation as a threat to peace and no one can correct its assessments, which means that, since some of the UNSC permanent members are concerned about the possible prosecution of their soldiers or peacekeepers on a territory of a state party, they have also used their veto right in different situations for this reason (9), for example, when China invaded Tibet or when the USA was at war in Vietnam (10). These discoveries have led to the opinion that this organ “provides a highly distorted picture” (11).

Furthermore, the situation and good example of Syria is worth highlighting. Even though Syria is not part of the ICC and thus does not automatically engage its jurisdiction, the UNSC can use its power to defer the situation in front of it. The question is: why hasn’t it been done yet? Human Rights Watch wrote an article on the matter (12) clearly explaining that 3 of the permanent member of the UNSC (and thus members having the veto power) have not expressed support for the referral, even though already more than 60 countries by 2013 have called upon the UNSC to do so. Carla Del Ponte, an important international figure and prosecutor, recently stated that she was leaving the Independent International Commission of Inquiry on the Syrian Arab Republic in the United Nations because, notably, of the UNSC’s inaction on the matter (13).

These articles and opinions demonstrate that even tough an important part of the international community agrees on the graveness of a situation and its need to be assessed, the decision seems to still depend on only a few powerful states.

Another common disadvantage of both systems is their dependence on state cooperation. Indeed, it is written in their conventions that all states concerned have an obligation to cooperate with the courts in order to help them if needed (14). It has even been said that “(…) the States are confirmed as the absolute holders of the power to exercise criminal jurisdiction (…)” (15). This is explained by the fact that since the conflicts happened in each state concerned, they are the ones in the most effective position to bring proof, witnesses, documents and other necessary elements to build a case.

These problematic points result in the fact that the ICC has unneglectable difficulties to build cases (due to the lack of proof partly coming from poor states’ cooperation) and judge perpetrators in order to effectively eliminate impunity (due to the limited action of the UNSC). The facts that the ICC’s first case only ended in 2012, a decade after its creation (16),  and the creation of residual mechanisms several years later was necessary to finish the work of the ICTY/R (17) illustrates these problematics.

Therefore, an increase number of courts and tribunals have been established with a specific material and territorial scope in order to have less difficulties and thus be more effective in their work (for example, by choosing their own work language or having judges from the same geographic area that are culturally closer) (18). There has been problems (sometimes even concerning international relations) with supranational courts (such as the ICC) or courts where the international component is highly present (such as the ICTY/R) judging serious violations of human rights partly because of the fact that judges came from all geographical areas and with predetermined working languages that would prosecute crimes committed in particular areas and suffering from complex political disagreements (19).

Concerning the legal basis of prosecution, the Rome Statute obligates states to exercise their jurisdiction over those responsible for international crimes. If they do not comply with this duty, they have an obligation to extradite the accused (20). The ICC also has the principle of complementarity, which means that only when national courts are unwilling or unable to prosecute perpetrators of international crimes, it will have jurisdiction. All of these rules demonstrate that today, there are always means to prosecute perpetrators of international crimes, which leads to the question: why, in all the serious violations committed every day in numerous countries, does the international community not double its efforts to further eliminate impunity? It has also lead to the following point of view: “(…) perhaps the greater relevance to date of the ICC is its symbolic value” (21).

Now that the different problematic points have been explained, the next part will concentrate on proposing solutions that can be applied in order to render the system more effective, especially in its purpose of eliminating impunity.

Solutions and recommendations

The first important recommendation would be to equally be able to prosecute perpetrators of international crimes in any of the ICC’s member states, which would mean modelling the UNSC’s powers. Any individual from state parties should be equally held accountable for those crimes without having the possibility to stay immune thanks to the political influence of some states. The UNSC should use its powers in a positive and justice oriented way. This recommendation is relatively optimistic because it would entail the amendment of the Rome Statute and other important legal documents as well as the agreement of most states, which necessitates numerous discussions and a rather high amount of time and patience.

Concerning non-member states in which serious international crimes are committed, there should be more efforts and aid coming from the international community to prosecute and judge the criminals. Either the UNSC should have an obligation to directly refer the situation in front of the ICC, or a special tribunal should be put in place. Examples such as the conflict in Syria cannot persevere, criminals that have been perpetrating the most serious crimes for the last 7 years should be prosecuted as soon as possible. Since the referral of the situation in Syria to the ICC will most probably not happen, Carla Del Ponte actually stated that there is a need for a special tribunal to eliminate the impunity concerning this conflict (22).

If there is a need of a special tribunal for a certain conflict, there should also be considerations about the organization of this tribunal, especially concerning the amount of influence the international community would have (such as the number of international or national judges), the location of the tribunal (if it would be best suited that the tribunal were located in the country concerned because of the proximity to witnesses, documents and proof or if, on the contrary, it is safer security-wise to locate it elsewhere) and the official language used for cases (if it is better to use a wildly understood language such as English or if, on the contrary, it is better not to use translations in order for the important documents to have their original meaning). These considerations are important because every conflict varies considerably from a country to another and thus the effective solutions to restore peace vary as well. It is important to adapt the means and solutions specifically to every conflict. For example, in some situations, such as the Special Tribunal for Lebanon, the creation of internationalized courts or courts with international aid would be more effective (23) and for others, such as the Truth and Reconciliation Commission in South Africa (24), focus on means of reconciliation or dialogue would be a better solution.

As a conclusion, it is important to notice all the efforts made to eliminate impunity. The creation of the ICC and the evolution of international criminal law have a deep theoretical positive impact on the prosecution of perpetrators that have committed the most serious crimes. Now that the theoretical efforts have greatly been made, shouldn’t these efforts be without delay concentrated on improving the practical issues? 

 

By Taline Bodart

 

 

(1) International Criminal Court. Rome Statute of the International Criminal Court.  [online] A/CONF.183/9 of 17 July 1998. Available on: https://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e1... . Consulted on 2017/10/24.

(2) United Nations Security Council. Resolution 827 (1993). [online] (modified on 1993/05/25). Available on : <https://documents-dds-ny.un.org/doc/UNDOC/GEN/N93/306/28/IMG/N9330628.pd... (Consulted on 2017/10/26). United Nations Security Council. Resolution 955 (1994). [online] (modified on 1994/11/08). Available on : <https://documents-dds-ny.un.org/doc/UNDOC/GEN/N95/140/97/PDF/N9514097.pd...>(Consulted on 2017/10/24).

(3) International Criminal Court. Rome Statute of the International Criminal Court.  [online] A/CONF.183/9 of 17 July 1998. Available on: https://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e1... . Consulted on 2017/10/24.

(4) United Nations Security Council. Resolution 1593 (2005). [online] (modified on 2005/03/31). Available on: < http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/1593(2005)> (Consulted on 2017/10/24).

(5) United Nations Security Council. Resolution 1970 (2011). [online] (modified on 2011/02/26). Available on: <http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/1970(2011)> (Consulted on 2017/10/24).

(6) Telegraph. UN Security Council unanimously approves 'all necessary measures' against Isil in Syria. [online]. (modified on 2015/11/21). Available on:  <http://www.telegraph.co.uk/news/worldnews/islamic-state/12009275/UN-Secu... (Consulted on 2017/10/26).

(7) International Criminal Court. Rome Statute of the International Criminal Court.  [online] A/CONF.183/9 of 17 July 1998. Available on: https://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e1... . Consulted on 2017/10/26.

(8) United Nations Treaty Collection. Rome Statute of the International Criminal Court.  [online] (modified on 2017/10/26).Available on: <https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII... (consulted on 2017/10/26)

(9) KLABBERS, Jean. International Law. Cambridge : Cambridge University Press, 2013, p.222. WERLE Gerhard/JESSBERGER Florian. Principles of International Criminal Law. Oxford: Oxford University Press, 2014, p.23.

(10) KLABBERS, Jean. International Law. Cambridge : Cambridge University Press, 2013, p.176.

(11) KLABBERS, Jean. International Law. Cambridge : Cambridge University Press, 2013, p.172.

 (12) Human Rights Watch. Q&A: Syria and the International Criminal Court. [online] (modified on 2013/09/17). Available on :  <https://www.hrw.org/news/2013/09/17/qa-syria-and-international-criminal-... consulted on 12.10> (consulted on 2017/10/24)

(13) RTS Info. Le dernier appel de Carla Del Ponte contre l'impunité en Syrie.[online] (modified on 2013/09/19). Available on :  <https://www.rts.ch/info/monde/8928189-le-dernier-appel-de-carla-del-pont... (consulted on 2017/10/24)

(14) DEL VECCHIO Angela, International Courts and Tribunals between Globalisation and Localism, The Hague : Eleven International Publishing, 2013, p. 31, 146, 151.

(16) KLABBERS, Jean. International Law. Cambridge : Cambridge University Press, 2013, p.223.

(17)United Nations Mechanism for International Criminal Tribunals. Security Council adopts resolution on the international residual mechanism for criminal tribunals (IRMCT). [online] (modified on 2010/12/29). Available on :  <http://www.unmict.org/en/news/security-council-adopts-resolution-interna... (consulted on 2017/10/24)

(18) DEL VECCHIO Angela, International Courts and Tribunals between Globalisation and Localism, The Hague : Eleven International Publishing, 2013, p.130.

(19) DEL VECCHIO Angela, International Courts and Tribunals between Globalisation and Localism, The Hague : Eleven International Publishing, 2013, p. 143.

(20) KLABBERS, Jean. International Law. Cambridge : Cambridge University Press, 2013, p.231.

(21) KLABBERS, Jean. International Law. Cambridge : Cambridge University Press, 2013, p.223.

(22) RTS Info. Le dernier appel de Carla Del Ponte contre l'impunité en Syrie.[online] (modified on 2013/09/19). Available on :  <https://www.rts.ch/info/monde/8928189-le-dernier-appel-de-carla-del-pont... (consulted on 2017/10/24)

(23) WERLE Gerhard/JESSBERGER Florian. Principles of International Criminal Law. Oxford: Oxford University Press, 2014, p.26, 121.

(24) KLABBERS, Jean. International Law. Cambridge : Cambridge University Press, 2013, p. 233.

 

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