International Criminal Court (ICC)

In this article, we shall discuss the International Criminal Court (ICC). We shall examine the history and early formation of the International Criminal Court, and the movement to establish such a court. In addition, we shall also examine the makeup and functions of the ICC. Moreover, we shall also discuss the various cases tried at the International Criminal Court. We will address various successes of the ICC, as well as criticisms posed with regards to the court. Then, we will end with books on the International Criminal Court, as well as a list of references.

What is the International Criminal Court

Located at the Hague, in the Netherlands, the International Criminal Court is an international court that hears cases against individuals accused of committing war crimes,  crimes against humanity, or acts of genocide. There are currently 124 states that have signed onto and have ratified the statute of the ICC court, thus accepting the jurisdiction of the court. Interestingly, and quite contrary to other international organs, the ICC’s statute is not open for reservations, understandings, or declarations. Thus, states that sign onto the ICC understand that they are completely bound by the ICC statute (Hurd, 2014), which, as we shall discuss later, some argue that this itself be one of the greatest accomplishments of the International Criminal Court (Casesse, 1999).

History of the International Criminal Court

The International Criminal Court arose from the various human rights abuses committed by the state towards its citizens. One of  the issues with such abuses was that traditional judicial responses were either ineffective or non-existent (Hurd, 2014), given that the state who carried out the crime often had control over the judiciary. Interestingly, the idea of prosecuting those who have committed crimes during war is an ancient one, as “[w]ar criminals have been prosecuted at least since the time of the ancient Greeks, and probably well before that” (Schabas, 2004: 1). And we see a history of states carrying out trials for individuals committing crimes during war. However, what distinguished later trials from earlier ones was the development of international courts that were not a part of the domestic legal structure of a state.

We saw pushes for international trials during World War I, following the defeat of Germany. However, there was not agreement of all states as to whether one could try someone after the fact that the crimes were established as crimes in international law.  There were also other discussions about international trials (such as the Versailles Treaty), but negotiations moved away from the idea of international courts, and instead allowed domestic trials to maintain the jurisdiction of these cases. However, it was following the events of World War II that the Allied Powers established the international courts of the Nuremberg and Tokyo Trials. 

There is little written documentation regarding the discussions about the formation of the International Criminal Court, at least compared to other human rights institutions. Antonio Cassese (1999) argues that “[t]he need for informal, off-the-record discussions clearly arose out of the necessity to overcome major rifts in a smooth manner and in such a way as to avoid states losing face by changing their position” (145). It was in 1998 that the Rome Statute (the statute of the ICC) was created. Then, four years later, in 2002, the Rome Statute was signed by 60 states, enough to put the statute into force. The International Criminal Court was born.  Many have pointed out that the time between the introduction of the Rome statute and the 60 needed signatures was indeed remarkable, and took place in much less time than anticipated Schabas (2004).

Mandate of the International Criminal Court

The International Criminal Court was specifically created to deal with human rights issues. The ICC has the mandate and jurisdiction to hear cases related to genocide, war crimes, crimes against humanity, and crimes of aggression (Casesse, 1999). Interestingly, the International Criminal Court’s (ICC) first function is to “[ensure] that states standardize their domestic laws on war crimes, genocide, and crimes against humanity, and by doing so it helps spread the idea that these crimes will not go unpunished in parts of the world controlled by countries that are ICC members” (Hurd, 2014: 223). But when most think about the ICC, they see the creation of an international court that itself will hear such cases outside of the domestic courts of the states. Hurd (2014) explains the importance of these two functions, and how they work together when he says that “the former is a piece of legal homogenization, spreading a set of common legal standards around the world, and is therefore one aspect of the broad process of globalization. The latter function creates a completely new international institution with autonomous legal powers and a powerful political role. Binding these two functions together is the concept of “complementarity,” which specifies that the ICC shall be “complementary” to domestic courts rather than to supersede them” (223-224).

Thus, the functions and mandate of the ICC have allowed the international body to know that there is a venue in which crimes against humanity, war crimes, acts of genocide, etc… can be heard. This is an important development in international human rights, since there did not exist a permanent court that had such jurisdiction. Of course, the United Nations does have a court of its own, namely the International Court of Justice. However, the two courts have very different mandates. While the United Nations ICJ hears cases brought by states against states, the ICC allows for non-state actors to file against state leaders (Hurd, 2014). This is a great shift, as it allows leaders to be accountable for their actions in an international court; they can no longer hide behind arguments of state sovereignty. This is important because it gives non-state actors (such as individual people) power, something that was not there when the understanding was that the state would represent them in the international arena (Hurd, 2014).  And thus, when looking at the functions of the International Criminal Court, the ICC operates like a domestic court; “[i]t sees cases through from the start to finish — that is, from identifying suspects, to investigating the facts of the case, to prosecution, and on through convictions, acquittals and jail sentences” (Hurd, 2014: 224).

Jurisdiction of the International Criminal Court

There are a three points that the ICC will examine before they decide if they have jurisdiction to charge someone with a crime, and in turn have case heard in their courts.

1. The individual being discusses is believed to have committed one of the crimes in the mandate of the International Criminal Court (genocide, war crimes, or crimes against humanity). And even with these crimes, the ICC hears cases where “the most serious crimes”, or “systematic crimes” committed by actors (Hurd, 2014: 226).
2. There must be some relationship between the accused and the ICC, namely, the person accused of carrying out one or more of these crimes must either be from a state that has signed onto the ICC, or is believed to have committed crimes in a state that has signed and ratified the Rome Statute  of the International Criminal Court. However, These do not apply if  the case was initiated at the request of the Security Council under Article 13(b)” (Hurd, 2014: 226).
3. The domestic courts were either unable or unwilling to try the accused for the crimes (and the Rome Statute allows the ICC to make this decision) (Hurd, 2014).

Contributions of the International Criminal Court

There have been a number of key contributions that the International Criminal Court has offered the human rights movement. To being, one of the most important developments with the ICC has been the way that the court has further altered norms towards challenging state sovereignty. As Cassese, writing in 1999 pointed out, that while “[i]t is easy to find fault in any new legal institution. In the case of the International Criminal Court (ICC), whose Statute was adopted in Rome on 17 July 1998, however, one should be mindful of the fact that, firstly, this is a revolutionary institution that intrudes into state sovereignty by subjecting states’ nationals to an international criminal jurisdiction” (145). He went on to say in the following sentence: “Consequently, if and when it becomes an operational and effective judicial mechanism, the ICC could mark a real turning point in the world community. Such statements illustrate how the ICC has indeed transformed human rights and the issues of accountability for state leaders.    

Recent Cases and Proposed Cases at the International Criminal Court

Omar al-Bashir and the ICC

In March of 2009, the ICC called for Sudanese leader Omar al-Bashir of Sudan to face charges of crimes against humanity and war crimes. And in July 12th, 2010, the International Criminal Court called for the arrest of Sudan’s leader Omar al-Bashir for the acts of genocide carried out by his government and Janjaweed against the people of Darfur. This 2010 arrest warrant was the genocide arrest warrant in the history of the International Criminal Court. It was given to al-Bashir for his “alleged role as an indirect perpetrator or indirect co-perpetrator of genocide in Darfur through killing, causing bodily or mental harm, and deliberately inflicting conditions of life calculated to bring physical destruction” (Human Rights Watch, 2010).

The reason that the International Criminal Court has jurisdiction over Sudan is not because Sudan is a party to the ICC (as it did not sign and ratify the Rome Statute) (and even continued to challenge the courts legitimacy) (Hurd, 2014). Thus, on this alone, the ICC would not be able to charge al-Bashir. However, it was because of the actions of the United Nations Security Council that the International Criminal Court received jurisdiction over Sudan and Darfur. Specifically, it is because of Article 13(b) of the Statute, where it allows ICC jurisdiction through actions taken by the United Nations Security Council. And in this case, because the UNSC passed resolution 1593, in this resolution it called for the Darfur situation to be referred to the International Criminal Court (the vote was 11-0-4 (Algeria, Brazil, China, and the United States) (UN, 2005), and therefore, the court thus has jurisdiction over the country (Human Rights Watch, 2010).

Hurd (2014) points out that the Rome Statute of the ICC has actually given the UNSC even more power than it has stated in the UN Charter, since the International Criminal Court obviously did not exist at the time of the creation of the UN and the UN Charter. In addition, the UNSC can use their powers to further challenge a leader’s argument for sovereignty. In addition, not only does the UNSC have such power, but they can also do so without carrying the burden of costs that would be associated with a trial, since the UN stated in the 2005 resolution 1593 that “none of the expenses incurred in connection with the [case] … shall be borne by the United Nations” (in Hurd, 2014: 237).

Israel and the ICC

Israel, the 2010 Gaza Flotilla, and the ICC

One other potential case with regards to the International Criminal Court is that of Israel. Different Israeli actions have been been brought up as possible cases for the ICC. One recent complaint was brought by Turkey to the International Criminal Court. The possible case had to do with the 2010 Turkish Flotilla Mavi Marmara, which was trying to enter into Gaza, which has been blocked by Israel. Israeli military stopped the boat, and then boarded the ship, and after fighting broke out, nine activists were killed. There were calls by a number of states saying that Israel committed war crimes, however, “the Turkel Commission and the UN-sponsored Palmer Report cleared Israel of war crimes…even as the Palmer Report said that some of the IDF’s force was excessive” (Bob, 2014). However, this ruling was seen as controversial by many such as Richard Falk and Phyllis Bennis, who wrote a piece entitled “The Legal Flaws of the Palmer Commission Flotilla Report.”

However, the Comoros Islands brought a complaint to the ICC calling for Israel to be charged with war crimes with regards to the  actions in 2010. However, according to the ICC (reported by Yonah Jeremy Bob, Jerusalem Post (2014)), it “has learned that [Prosecutor Fatou] Bensouda’s ruling, still as yet not fully public, says that the incident did not rise to the level of severity of broad-based war crimes allegations which the ICC is empowered to deal with.”

Israeli, the Occupied Palestinian Territories, and the ICC

The second involves Israeli actions in the Occupied Palestinian Territories. Israel has been the Occupying power in Palestine since 1967, where, during the 6 Day War, Israel took control over the West Bank, Gaza, and East Jerusalem (along with the Golan Heights and the Sinai Peninsula). Furthermore, for a number of decades, the Israeli state has continued building settlements in the West Bank and East Jerusalem (and continue to do so even today). Moreover, they have carried out a number of aggressive military campaigns in the Occupied Palestinian Territory of Gaza, the most recent one being this past summer, where over 2100 individuals lost their lives, many of them being children and other non-combatants (BBC, 2014).

Regarding this last military incursion (along with the previous ones), there has been belief that Israel committed war crimes during their actions (In fact, on November 5th, 2014, Amnesty International put out a report saying that Israel did indeed commit war crimes during their actions in the summer of 2014 in Gaza). And as a response, many individuals have been calling for Israel to be tried at the International Criminal Court. For example, ” The Palestinian ambassador to the United Nations [Riyad Mansour] said Thursday that his government will join the International Criminal Court if the UN Security Council refuses to set a deadline for Israel to withdraw from all Palestinian territory” (Jack Khoury of Haaretz, 2014). Upset with the lack of pressure on Israel to stop its occupation of Palestine, the Palestinian representative said that if actors are closing opportunities for peace, then this would be an option that the Palestinians would take (Haaretz, 2014). The deadline is believed to be November 2016. It is believed that the Palestinians are planning on introducing a UNGA resolution on the matter. And the draft of the resolution calls for working on a two state solution. In addition, “[i]ts key provision calls for “the full withdrawal of Israel, the occupying power, from all of the Palestinian territory occupied since 1967, including East Jerusalem, as rapidly as possible and to be fully completed within a specified timeframe, not to exceed November 2016, and the achievement of the independence and sovereignty of the state of Palestine and the right to self-determination of the Palestinian people” (Haaretz, 2014).

This issue with Israel and the ICC was why they (and the United States) were so adamant against Palestine receiving observer state status in the United Nations. With that status, they are able to ask the ICC to hear cases in their jurisdiction. And the ICC has received a great deal of criticism from the international community, in what many see as inaction on the issue of trying Israel for its crimes. On August 29th, 2014, The ICC Chief Prosecutor Fatou Bensouda (2014) wrote that the reason for this is because Palestine was a member of the ICC throughout the signing and ratification of the Rome Statute. However, with Palestine being a non-member state of the UN in November of 2012, he explained that it was not possible for them to be a part of the ICC (in Khan, 2014). But seeing that they now have full observer status, they are able to sign onto the Rome Statute, and could file charges against Israel.

 

References

BBC (2014). Gaza Crisis: Toll of Operations in Gaza. 1 September 2014. Available Online: http://www.bbc.com/news/world-middle-east-28439404

Bensouda, F. (2014). Fatou Bensouda: The Truth About the ICC and Gaza. The Guardian. August 29th, 2014. Available Online: http://www.theguardian.com/commentisfree/2014/aug/29/icc-gaza-hague-court-investigate-war-crimes-palestine 

Bob, Y. J. (2014). ICC Rejects Pro-Turkey War Crimes Allegations Against IDF in Gaza Flotilla Raid. http://www.jpost.com/Israel-News/ICC-rejects-pro-Turkey-war-crimes-allegations-against-IDF-in-Gaza-flotilla-raid-380955

Casesse, A. (1999). The Statute of The International Criminal Court: Some Preliminary Reflections. European Journal of International Law, pages 144-171.

Falk, R. & Bennis, P. (2011). The Legal Flaws of the Palmer Commission Flotilla Report. 13 September, 2011. Available Online: http://richardfalk.wordpress.com/2011/09/13/the-legal-flaws-of-the-palmer-commission-flotilla-report/ 

Human Rights Watch (2010). Sudan: ICC Warrant for Al-Bashir on Genocide. July 13, 2010. Available Online: http://www.hrw.org/news/2010/07/13/sudan-icc-warrant-al-bashir-genocide

Hurd, I. (2014). International Organizations: Politics, Law, Practice. Cambridge, England. Cambridge University Press.

Khan, M. (2014). Gaza Crisis: ICC Chief Prosecutor Says Palestine Can File War Crime Charges Against Israel. IB Times, August 31, 2014. Available Online: http://www.ibtimes.co.uk/gaza-crisis-icc-chief-prosecutor-says-palestine-can-file-war-crime-charges-against-israel-1463367 

Khoury, J. (2014). Palestinian Envoy: If UN Rejects Occupation Deadline, We’ll Join International Criminal Court. 

United Nations (2005). Security Council Refers Situation In Darfur, Sudan, To Prosecutor Of International Criminal Court. Security Council Press Release, 31 March 2005. Available Online: http://www.un.org/press/en/2005/sc8351.doc.htm 

Schabas, W. A. (2004). An Introduction to the International Criminal Court, Second Edition. Cambridge, England. Cambridge University Press.