The Imperatives of International Criminal Tribunals And International Criminal Court On Crime of Genocide

Contributor: Ifediora Obiora Chisom

Introduction

The establishment of International Tribunals and the International Criminal Court (ICC) marks a significant development in the international legal framework for addressing grave violence of human rights, including the crime of genocide.^[1] Genocide, defined as the international destruction of a national, ethnic, racial or religious group, is a heinous crime that defies the fundamental principles of humanity and international law.^[2] In response to the Holocaust, the international community sought mechanisms to prevent and punish acts of genocide, leading to the adoption of the Genocide Convention in 1948 and the subsequent establishment of institutions dedicated to enforcing these principles.

This work explores the contributions of the ICC in the combat of genocide. The historical development of the court shall be discussed to understand how the ICC evolved into the instrument of justice it is today. In addition, the work shall explain the challenges hindering the ICC in effectively performing its functions, and recommendations shall be made to ensure a better administration of justice by the court.

History of the International Criminal Court

The ICC is a permanent judicial body established by the Roman Statute of the International Criminal Court (1998) to investigate, prosecute and try persons who are accused of genocide, war crimes and crimes against humanity, and in addition, to impose prison sentences upon persons who are convicted of such crimes.^[3] The ICC was constituted as a court of last resort, vested with the mandate to prosecute the gravest offences in instances where national courts are unable or unwilling to act.^[4] It was established in 2002 as an independent international organization and is the first permanent, treaty-based, international criminal court created to help end impunity for the perpetrators of the most serious of international crimes.^[5] Distinct from the International Court of Justice (ICJ), which is concerned with adjudicating disputes between states, the ICC is concerned with the prosecution of individuals.^[6]

The foundations of the ICC were laid by the Nuremberg and Tokyo Tribunals after World War II, which prosecuted war crimes and crimes against humanity.^[7] At Nuremberg, for instance, prosecutors from the major allied powers investigated and prosecuted war criminals for crimes against peace, war crimes and crimes against humanity. After a ten-month trial, the Tribunal acquitted some defendants and sentenced some others to imprisonment or death.^[8]

Also, in the early 1990s, the United Nations (UN) Security Council established two ad hoc tribunals: the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993 and the International Criminal Tribunal for Rwanda (ICTR) in 1994.^[9] Both tribunals operated for over 20 years, convicting more than 150 individuals for international crimes.^[10]

In 1998, the Roman Statute was adopted and it laid the foundation for the ICC.^[11] The ICC officially came into existence on 1^stJuly, 2002, when the Roman Statute came into force. This marked the beginning of the Court’s operation.

International Legal Framework for Genocide

Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) 1948

The Genocide Convention of 1948 was among the first UN conventions addressing humanitarian issues.^[12] It was adopted in 1948 in response to the atrocities committed during World War II and the Convention has since been widely accepted by the international community and ratified by the overwhelming majority of states.^[13]

The Convention provides that Contracting Parties confirm that genocide, whether committed in time of peace or war, is a crime.^[14] The Convention defines genocide, outlining the specific acts considered genocidal when committed with intent to destroy in whole or in part, a national, ethnic, racial or religious group.^[15] The Convention lists punishable acts related to genocide, including conspiracy, incitement, attempt, and complicity.^[16]

Importantly, the Convention provides that persons charged with genocide shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.^[17] Thus, the international panel can only exercise jurisdiction over states that have consented to such jurisdiction.

Roman Statute of the International Criminal Court 1998

The Roman Statute was adopted at a diplomatic conference in Rome, Italy on 17^th July 1998 and it entered into force on 1^st July, 2002.^[18] The Roman statute established the ICC which shall be a permanent institution and have the power to exercise its jurisdiction over persons for the most serious crime of international concern.^[19] The statute confirms the ICC’s international legal personality and the ability to perform functions on the territory of its member states.^[20] In furtherance, the Statute made provisions for the crimes within the jurisdiction of the Court. It is vested with the authority to try such crimes as genocide, crimes against humanity, war crimes and crimes of aggression.^[21]

The statute has a similar definition of genocide to the Genocide Convention of 1948. It defines it as acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group and such acts include killing members of a group or causing serious bodily or mental harm, inter alia.^[22]

Importantly, the Statute establishes that individuals, regardless of their official capacity, are criminally responsible for committing, ordering, aiding or inciting genocide^[23] and no immunity is granted to individuals based on their position as a head of state or government.^[24]

The International Covenant on Civil and Political Rights (ICCPR)

The ICCPR is a multilateral treaty that commits nations to respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, freedom of assembly, among other rights.^[25] It was adopted by United Nations General Assembly on 16^th December 1966 and entered into force on 23^rd March 1976.^[26]

The instrument recognizes the right to life by providing that every human being has the inherent right to life and no one shall be deprived of his right.^[27] Additionally, it prohibits any form of inhuman or degrading treatment or punishment.^[28] In furtherance, it recognizes that all persons are equal before the law and are entitled without any discrimination to equal protection of the law.^[29] Thus, where the crime of genocide is committed, it goes against the civil rights of individuals, which are protected by law.

Efforts by ICC in Combatting Genocide

The ICC combats genocide by prosecuting perpetrators under the Rome Statute. For instance, the case of The Prosecutor v Omar Hassan Ahmed Al Bashir^[30] involves the very first case of genocide handled by the ICC. An arrest warrant was issued against the former president of Sudan, Al Bashir, on allegations of genocide, war crimes, and crime against humanity during the Dafur conflict,^[31] though he remains at large as of this moment^[32] and the ICC prosecutor announced that she was suspending the investigation of his case because of lack of action by the United Nations Security Council in compelling the defendant to appear in court.^[33]

Challenges Impeding the Effective Administration of Justice by the ICC

The ICC is facing significant challenges, which may put the court’s legitimacy into question. These challenges shall be studied below:

1. Limited Jurisdiction: The ICC is most likely to achieve its intended role when it becomes a universally accepted institution. In practical terms, the effectiveness of the ICC depends largely on the ratification status of the Roman Statute.^[34] Thus, where even the most heinous crimes are committed by non-state parties, the ICC would lack the authority to exercise jurisdiction over these non-state parties.
2. Weak Record of Prosecution: This has undermined the effective administration of justice by the ICC by failing to present compelling evidence, leading to acquittals and eroding public confidence. Challenges in cooperating with states have further hindered successful prosecutions. This inadequacy weakens the deterrent effect of the ICC and diminishes its credibility as an instrument of justice. For instance, in Gbagbo v The Prosecutor^[35], which resulted in an acquittal, the Trial Chamber lambasted the Office of the Prosecutor for having presented a disorganized and weak case. The Trial Chamber criticized them for attempting to build its case of crimes against humanity based on hearsay evidence from Non-Government Organization reports and press articles. Lack of diligent prosecution such as this has a way of obstructing the administration of justice in the ICC.
3. Discord among Judges: This leads to inconsistency in the application of substantive law.^[36] Thus, such divergent interpretations of legal provisions often lead to fragmented decisions, undermining the legitimacy of the Court’s judgments.^[37]
4. Lack of Cooperation with State Parties: The ICC is absolutely dependent on effective cooperation with States Parties in preparing criminal cases, in particular when it comes to the issue of arrest and surrender of the accused.^[38] The Court has no enforcement mechanism of its own and would be powerless without the cooperation of states.^[39]
5. Difficulty in Obtaining Evidence: There are situations where there would need to conduct necessary and complex investigations and this may involve travelling to regions thousands of kilometres away from The Hague Netherlands (the location of the court). Travelling may be difficult and security is volatile, making it difficult to obtain evidence.^[40]

Conclusion

The ICC plays a pivotal role in combating the crime of genocide by ensuring accountability, deterring future heinous crimes and providing justice for victims. Its establishment marked a significant milestone in international criminal law, reflecting a global commitment to addressing such heinous acts. However, the ICC faces significant challenges that hinder its effectiveness, including limited jurisdiction over non-party states, and reliance on state cooperation for enforcement, inter alia.

To overcome these barriers, it is recommended that:

1. State Parties should openly affirm and express their support for the ICC and should enhance their support to the court, its officials, and those cooperating with it in the prevention of threats and attacks.
2. State Parties should increase their efforts to cooperate with the ICC in the execution of warrants of arrest as well as in relation to financial investigation and the freezing and seizing of assets.
3. State Parties should endeavour to elect highly qualified judges with knowledge and experience in criminal law and procedure.
4. Public awareness is essential for the legitimacy and efficacy of the ICC. The court should invest in outreach programmes to educate communities, civil society organizations and government on its role, achievements and limitations.
5. The ICC should advocate for broader ratification of the Rome Statute to expand its jurisdictional reach.

SNIPPET: The establishment of International Tribunals and the International Criminal Court (ICC) marks a significant development in the international legal framework for addressing grave violence of human rights, including the crime of genocide

KEYWORDS: International Criminal Court (ICC), Crime Of Genocide, Criminal Law Administration of Justice by the ICC.

1. ICJ, ‘About the Court’, <https://www.icc-cpi.int/about/the-court#:~:text=%22This%20cause%20%E2%80%A6%20is%20the%20cause%20of%20all%20humanity%E2%80%8B%22&text=The%20Court%20is%20participating%20in,first%20permanent%20international%20criminal%20court.>, accessed 13^th November, 2024. ↑
2. ICJ, ‘How the Court Works’, <https://www.icj-cij.org/how-the-court-works>, accessed 13^th November, 2024. ↑
3. Britannica, ‘International Criminal Court’, <https://www.britannica.com/topic/International-Criminal-Court>, accessed 13^th November, 2024. ↑
4. Ibid. ↑
5. ICC, ‘Understanding the International Criminal Court’, <https://www.icc-cpi.int/sites/default/files/Publications/understanding-the-icc.pdf>, accessed 13^th November, 2024. ↑
6. Kent, A, et al, ‘What are the ICJ and the ICC and how do their Power and Jurisdiction Differ?’,<https://theconversation.com/what-are-the-icj-and-the-icc-and-how-do-their-power-and-jurisdiction-differ-230573#:~:text=The%20ICJ%20is%20a%20general,ask%20it%20to%20do%20so.>, accessed 13^th November, 2024 ↑
7. Jackson, RH, ‘The Influence of Nuremberg Trial on International Criminal Law’, <https://www.roberthjackson.org/collection/speeches/as-nuremberg-prosecutor-1945-1946/>, accessed 13^th November, 2024. ↑
8. International Military Tribunal (Nuremberg), ‘Judicial Decisions: International Military Tribunal (Nuremberg) – Judgment and Sentences’, (1947) (41) 1 American Journal of International Law 172 – 333. ↑
9. McTaggart, et al, ‘The International Criminal Court: History and Role’, <https://lop.parl.ca/sites/PublicWebsite/default/en_CA/ResearchPublications/200211E> accessed 13^th November, 2024. ↑
10. Ibid. ↑
11. Ibid. ↑
12. CICV ‘Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948’, <https://ihl-databases.icrc.org/pt/ihl-treaties/genocide-conv-1948q> accessed 13^th November, 2024. ↑
13. Ibid. ↑
14. Genocide Convention 1948, Article I. ↑
15. Ibid, Article II. ↑
16. Ibid, Article III. ↑
17. Ibid, Article VI. ↑
18. Wikipedia, ‘Roman Statute’, <https://en.wikipedia.org/wiki/Rome_Statute> accessed 13^th November, 2024. ↑
19. Roman Statute, Article 1. ↑
20. Ibid, Article 4 ↑
21. Ibid, Article 5. ↑
22. Ibid, Article 6. ↑
23. Ibid, Article 25. ↑
24. Ibid, Article 27. ↑
25. Wikipedia, ‘International Covenant on Civil and Political Rights’, <https://en.wikipedia.org/wiki/international_Covenant_on_Civil_and_Political_Rights> accessed 13^th November, 2024. ↑
26. Ibid. ↑
27. ICCPR, Article 6. ↑
28. Ibid, Article 7. ↑
29. Ibid, Article 26. ↑
30. ICC-02/05-01/09-3 ↑
31. Claus, K, ‘The ICCs First Encounter with the Crime of Genocide’, <https://www.google.com/search?q=The+ICCs+First+Encounter+with+the+Crime+of+Genocide%E2%80%99+Claus&oq=The+ICCs+First+Encounter+with+the+Crime+of+Genocide%E2%80%99+Claus&aqs=chrome..69i57j33i10i160.7376j0j7&sourceid=chrome&ie=UTF-8> accessed 14^th November, 2024. ↑
32. Ibid. ↑
33. Britannica, ‘Omar Al-Bashir’, <https://www.britannica.com/biography/Omar-Hassan-Ahmad-al-Bashir> accessed 13^th November, 2024. ↑
34. Song, S, ‘International Criminal Court – Centred Justice and its Challenges’, <https://classic.austlii.edu.au/au/journals/MelbJIL/2016/1.html> accessed 14^th November, 2024. ↑
35. ICC-02/11-01/15-1 ↑
36. Sterio, M, ‘The International Court of Justice: Current Challenges and Prospect of Future Success’, (2020) (52) 1 Case Western Reserve Journal of International Law 467-478. ↑
37. Ibid. ↑
38. Kaul, H, ‘The International Criminal Court – Current Challenges and Perspectives’, <https://www.icc-cpi.int/sites/default/files/NR/rdonlyres/289B449A-347D-4360-A854-3B7D0A4B9F06/283740/010911SalzburgLawSchool.pdf>, accessed 14^th November, 2024. ↑
39. Ibid. ↑
40. Ibid. ↑