An Appraisal Of International Crimes And The Operations Of The International Criminal Court

An Appraisal Of International Crimes And The Operations Of The International Criminal Court

Abstract

The traditional focus of International Law has been upon the rights and obligations of states while International Criminal Law regulates the conduct of individuals and also punishes those who commit heinous and barbaric crimes against others. The most prevalent of these crimes include genocide, crimes against peace, war crimes and crimes against humanity.

After the end of World War II, the Allies tried Nazi leaders responsible for the massacre to demonstrate that such would not be permitted in future. In the absence of a permanent criminal court, ad hoc tribunals were established. Unfortunately, in the succeeding years, the world sustained atrocities without having recourse to any permanent global mechanism for the prevention and punishment of such crimes.

Consequently, a treaty establishing the International Criminal Court was adopted in Rome on July 17, 1998 at the Rome Conference. The court came into being on 1 July, 2002 as that was the date its founding treaty, the Rome Statute entered into force and it can only prosecute crimes committed after that date.

Despite the courts various achievements, it still faces some challenges. These include the refusal of the United States to ratify its treaty, the non-cooperation of states that are not parties, lack of universal ratification of the Rome Statute and a host of others. In spite of all these, the International Criminal Court promises a lot because it seeks to deter other war criminals from committing inhumane crimes against others. The court is widely acknowledged as the missing link in the international legal system.

On the whole, this long essay seeks to examine the International Criminal Court, tracing its evolution from the post-World War II era to the establishment of International Criminal Tribunals. The Courts achievements and also the challenges undermining its successes will be discussed.

Chapter One

General Introduction

1.0.0: Introduction

International Humanitarian Law took its modern form after World War II in a bid to prevent a repeat of the horrors that took place in the trenches and concentration camps. A lot of cruel, horrendous and barbaric crimes were committed in the course of the war as the hostages were treated inhumanely by their captors. The whole world was in chaos because of the war between the Eastern and the Western blocs. The resultant effect was the extermination and killing of the citizenry massively. Many people were unfortunate to have been victims of genocide, war crimes, war against peace and crimes against humanity on a large scale.

It is instructive to note that these criminal acts did not go unpunished because International Law has mechanisms in place for the prosecution and punishment of offenders whenever international humanitarian law is violated. As a result of this, at the end of the war, the United Nations General Assembly and the victorious Allied Powers i.e. United States of America, France, Britain and the Union of Soviet Socialist Republics set up ad hoc tribunals for the purpose of investigating, prosecuting and punishing the guilty war criminals to serve as deterrence to others. This was done to prevent other would-be criminals from carrying out their cruel, debasing, dehumanising and undignifying acts. The tribunals were located in the countries where the barbaric acts were committed and due to their ad hoc nature, they were disbanded after their mission had been completed. The tribunals include the Nuremberg tribunal, Tokyo tribunal, Special Court for Sierra Leone, Special Tribunal for Lebanon and the Yugoslavia Tribunal. The tribunals laid down the precedent that superior orders will not be a defence to criminal liability.

Therefore, anybody alleged to have committed international crimes cannot say he acted against his own will but will be held solely responsible for his actions. The tribunals were a watershed in International Criminal Law recognizing individual responsibility for international crimes. The tribunals recorded many achievements but were equally flawed with criticisms. This however provided the necessary clout for the establishment of a permanent mechanism to punish offenders of international humanitarian law.

After series of negotiations, the United Nations’ General Assembly convened the Rome Conference on 17 July, 1998 where the Rome Statute was adopted and this brought about the International Criminal Court. It is a permanent court which prosecutes and punishes individuals for the most serious offences of global concern i.e. genocide, war crimes and crimes against humanity. The mandate of the court is to ensure that violators of international criminal law do not go unpunished. The Rome Statute sets out the court’s jurisdiction, structure and functions. The statute is not retrospective because the court will only punish individuals who commit crimes after 1 July 2002, being the date the Rome Statute entered into force.

1.1.0: Background to the Study

The motivating factor for choosing this topic is to critically examine and analyse international crimes bearing in mind the evolution of international criminal tribunals and the activities of the International Criminal Court aimed at deterring people from committing international crimes. Certain crimes are intrinsically contrary to international law so that states are either by customary law or treaty entitled to try persons accused of the offences and punish persons found guilty whether or not they are committed in their territories and irrespective of the nationality of the accused. This is the principle of universal jurisdiction which applies to piracy, slavery and war crimes.

Hence, the establishment of the International Criminal Court was seen as a right step geared towards the prevention of inhumane acts and the punishment of offenders in situations where such crimes were committed. Although the court has recorded many successes, it still has some challenges bedevilling it.

The choice of this topic was borne out of the necessity to examine the activities of the Court viz a viz its successes and challenges in a bid to achieve its mandate and to make the world community a peaceful one to live in.

1.2.0: Objectives of the Study

The cardinal reason for undertaking this research is to critically, analytically and jurisprudentially examine international crimes and the operations of the International Criminal Court. The research is to carefully and surgically analyse the various acts that constitute international crimes. This long essay is also geared towards tracing the evolution of international criminal tribunals and the precedents they laid which contributed positively to the development of international humanitarian law. Their ad hoc nature also brought about agitations for the establishment of a permanent tribunal to prosecute violators of International Criminal Law.

Also, the aim of this work is to shed light on the activities of the International Criminal Court highlighting its resolute firmness to prosecute offenders no matter how highly placed in the society. The achievements of the court will also be brought to the fore including the numerous challenges it is grappling with in a bid to achieve its mandate.

1.3.0: Focus of the Study

The focus of this long essay is to establish the various acts that constitute international crimes and are regarded as violations of international criminal law. The efforts of the International Criminal Court in guarding against the commission of such crimes will also be examined. The Court has opened investigations into situations of conflict and this will be adequately discussed. Also, the Court has recorded many laudable achievements but there are setbacks militating against its successes. The Court has influenced the development of international humanitarian law and this is also discussed with solutions proffered.

1.4.0: Scope of the Study

This research work centres on international crimes including the evolution of international criminal tribunals bearing in mind their influence and contributions to the development of international criminal law leading to the establishment of the International Criminal Court.

• Chapter One discusses the general introduction of the research, the reasons that facilitated the choice of this topic and the focus of the work. The textbooks used are reviewed and some of the words consistently used are defined.
• Chapter Two examines acts that constitute international crimes, tracing the evolution of international criminal tribunals which were ad hoc tribunals. The ad hoc nature of the tribunals finally led to a clamour for the establishment of the permanent court to prosecute war crimes.
• Chapter Three focuses extensively on an overview of the international criminal court including its jurisdiction, structure, membership, investigations carried out by the court and the court’s contribution to international law.
• Chapter Four discusses the numerous achievements of the court and the challenges militating against its efficiency.
• Chapter Five is about the general conclusion and the recommendations that will assist the Court in functioning effectively and efficiently.

1.5.0: Methodology

In this research, reliance would be on both primary sources and secondary sources of information. The primary sources are judicial decisions and legislations which include the Rome Statute (2002), the Nuremberg Charter (1945), the United Nations Charter (1945), Genocide Convention (1948), Vienna Convention on the law of treaties (1969), Geneva Conventions (1949) and the Constitution of the Federal Republic of Nigeria (1999). Secondary sources are basically articles in journals, articles on the internet, books, dictionaries and newspaper reports.

1.6.0: Literature Review

The information used for this essay will be sourced basically from the internet, law journals and textbooks. Below is the review of the books used for this research work.

UMOZURIKE in his book1 opined that the widespread massacre and ethnic cleansing experienced all over the world made the UN Security Council set up some ad hoc tribunals to prosecute persons responsible for some of the crimes committed in armed conflict, whether international or national in character and directed against any civilian population. The crimes include murder, extermination, enslavement, deportation, imprisonment, torture, rape, prosecutions on political, racial and religious grounds and other inhumane acts. The tribunals were important developments in International Humanitarian Law as they focused on compliance with the accepted humanitarian principles and punishment for their violations. They reaffirm the principle of individual responsibility for war crimes even if committed within the framework of municipal law. He further stated that the tribunals were however criticised for being organised by the victors of the war against the losers and also punishing crimes that were not in existence at the time they were committed.2

MALANCZUK in his book3 posited that the establishment of a permanent international criminal court would indeed overcome the problems arising from the efforts and time required creating ad hoc tribunals. The creation of such a court on a treaty basis would remove any doubts as to the proper legal basis of the court under international law as distinct from the constitution of ad hoc tribunals by Security Council resolutions.

OGBU4 stated that the statute of the International Criminal Court recognises the general principles of criminal law such as no crime or statute without law. It follows the precedent of the Nuremberg Charter by providing that official status shall not exempt a person from criminal responsibility and it will also not constitute a ground for reduction of sentence. It therefore means that immunity which may attach to the official capacity of a person whether under national or international law will not bar the court from exercising its jurisdiction over such a person.

1.7.0: Definition of Terms

For the purpose of clarity and better understanding, it is pertinent to provide the full meaning of some concepts that will be consistently used in this long essay. This is because words do not have meanings of their own except in the context in which they are used. In this regard, the words used in this long essay will be given meanings based on the context in which they are used so that they will not be misinterpreted. A brief definition will be given here because they are fully discussed in subsequent chapters: International Criminal Court

It is a permanent court situated in The Hague to try individuals for genocide, crimes against humanity and war crimes.5

Jurisdiction

The Black’s Law Dictionary6 defines it as the powers of courts to inquire into facts, apply the law, make decisions and declare judgment. It is also the power of a court or judge to entertain an action, petition or other proceedings.7

Accused

This is the generic name for the defendant in a criminal case.8 It also refers to one charged with an offence.9

Victim

The Oxford Dictionary of Law10 defines a victim as a person who is actually and directly affected by an act or omission that is incompatible with the European Convention on Human Rights, or a person who is at risk of being directly affected.

The Black’s Law Dictionary11 defines a victim as the person who the court determines has suffered pecuniary damages as a result of the defendant’s criminal activities or the person who is the object of a crime or tort.

Reparation

The Black’s Law Dictionary12 defines it as payment for an injury or damage; redress for a wrong done. This is the compensation for injuries or international torts.13

1.8.0: Conclusion

This chapter has shed light on what will be discussed in subsequent chapters. Prior to the establishment of the International Criminal Court, the Nuremberg and Tokyo tribunals which were set up by the victorious Allied Powers established that all of humanity would be guarded by a legal shield and that even Heads of State would be punished for the commission of international crimes. This has been subsequently affirmed by the Court in its investigations. In a nut-shell, the role of the International Criminal Court in preventing the commission of war crimes cannot be over-emphasised. In this wise, it is a court that has jurisdiction over crimes of great concern to the international community. Such crimes as genocide, war crimes and crimes against humanity fall within the jurisdiction and purview of the Court. The Court has been up to the task as it has conducted some investigations into climes where international crimes have been committed. However, despite its numerous achievements, criticisms and controversies have trailed the court’s activities. This is because of the fact that though the court has opened investigations only in five African countries, there has been no conviction. All of the above will be discussed subsequently in this long essay.

Chapter Five

General Conclusion

5.0.0: Conclusion

There is no gain-saying the fact that the ICC has played a prominent role in curbing the activities of would-be violators of international humanitarian law. Although it has long been recognized that there cannot be durable peace without justice, it is equally difficult to conceive of true justice in a society that lacks peace. This is because there can be no healing without peace, there can be no peace without justice and there can be no justice without respect for human rights and the rule of law. Facilitating the end of conflict and contributing to durable peace are demanding challenges for the international community. There are pain-staking efforts to surmount these challenges through international cooperation and where necessary, through international mechanisms such as the ICC which triggers legal obligations for states parties to the Rome Statute.

The creation of the ICC is historic and it now stands as a permanent institution capable of punishing perpetrators of the worst offences known to mankind. It has an important impact by putting would-be violators on notice that impunity will not becondoned. The ICC serves as a catalyst for enacting national laws against international crimes.

On the whole, the court has made it clear that whoever commits any international crime no matter how highly placed would be prosecuted. This was seen when President Omar al-Bashir of Sudan was indicted for the commission of war crimes and crimes against humanity in the Darfur region. In a nutshell, the establishment of the ICC is a welcome development and it has contributed positively to the development of international humanitarian law.

5.1.0: Recommendation

The ICC will be more efficient and its challenges surmountable if efforts to improve the functioning of the court are sustained to ensure its continual success in future. The following should be implemented for the court to be more vibrant:

1. State cooperation is one of the crucial factors that determine the credibility of the ICC as an impartial and independent institution. This is basically important as regards arrest warrants. Therefore, state parties should always assist the court when it issues arrest warrants by putting the necessary mechanisms in place to enforce the arrest warrants. This is because without arrests, there cannot be trials and without trials, victims will be denied justice and potential perpetrators may be encouraged to commit new crimes with impunity. The court’s founding states must as a matter of urgency begin to provide real political support to the court if it is to ever hope to end the impunity of those responsible for inhumane, debasing and conscience-shocking crimes.
2. States equally have to reaffirm their commitment to combat impunity for the most serious atrocities. Universality and implementation of the Statute play an indispensable role in that regard. The fight against impunity is the common responsibility of all States whether or not they are parties to the Rome Statute. They should not pay lip-service to the fight against commission of international crimes; rather they should sign, ratify and implement the Rome Statute.
3. Also, for the court to truly serve as deterrence for those who may contemplate atrocities in the future, the court needs to expand its horizon. This is because all the formal investigations are in Africa even though atrocities within the court’s jurisdiction have been committed in other parts of the world.
4. The prosecutor must also start pursuing perpetrators in positions of power in those countries that invite him or in which he chooses to investigate. Government leaders should not think that by inviting the ICC, they can use it as a tool against their opponents, and avoid rigorous scrutiny themselves. If the court is to have the impact its founders hoped of it, it needs convictions of government leaders who abuse human rights because such convictions serve as deterrence.
5. As a matter of fact, investigations usually carried out in situations of ongoing conflicts are usually of security concern because of the sensitivity. Based on this, security measures should be put in place to guarantee the safety of members of staff, victims, witnesses and other parties involved.
6. In addition, there should be speedy investigation and conclusion of trial. There is an apparent difference between the prosecution of crimes at the national and international level. Even though both require thorough consideration, the complexity and magnitude of international crimes are exceptional circumstances that influence the pace of conducting and concluding such trials.
7. More importantly, the United States of America should become a state party by signing and ratifying the Rome Statute. The US is concerned about possible charges against its citizens and has not been supportive of the court. The US wields great influence and it is a super power in the comity of nations. It is however disheartening that several years after the Rome Statute was adopted, the US is yet to become a state party. The country takes the top lead in combating gross violation of human rights and so it influences other states. If it becomes a state party, many countries will sign the Rome Statute and the activities of the ICC will be more effective and efficient.

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