15 July 2011
On the 17th of July we celebrate International Criminal Justice Day, a day that symbolizes the hopes of victims but also the evolving consensus within the international community to prevent and punish the crimes of genocide, crimes against humanity and war crimes. Thirteen years ago, on this day, representatives of 120 states adopted the Rome Statute which led to the creation of the International Criminal Court (ICC) in July 2002. This should also be a day for reflection on what has been achieved and what more needs to be done to bring the perpetrators of gross human rights violations to justice and put end to the culture of impunity.
International Criminal Law has made great strides over the last 15 years. After World War II, the Nuremberg and Tokyo Tribunals were established to try the leaders of the Nazi regime and Japan. It would take fifty years, until the end of the Cold War, for crimes against humanity to be subjected to judgment once again, with the creation of ad hoc tribunals for Rwanda, former Yugoslavia, Cambodia and Sierra Leone.
© picture: ICC
The tribunals have written an important page in the history of International Criminal Justice, which has led to the Rome Statute and the creation of the ICC, which sits in The Hague, The Netherlands.
Indeed, the mandate of this court is broader than that of the ad hoc tribunals – it is a permanent court, with a quasi-universal jurisdiction and the support of 116 states – but the Court also faces challenges.
First of all, the Court can only prosecute those who bear the greatest responsibility for the most serious crimes within the limits of its resources. This would leave a significant impunity gap unless States Parties discharge their responsibility to prosecute perpetrators of mass violations of human rights committed by their citizens and/or in their jurisdiction. The ICC is also dependent on the cooperation of States Parties including financial contributions and the enforcement of arrest warrants and other rulings. Moreover, the treaty that creates the ICC has not been ratified by important countries like Russia, China and the USA, which presents an important limitation to the effectiveness and legitimacy of the Court. These countries are able, nevertheless, as members of the United Nations Security Council, to refer certain situations before the ICC, as we have recently seen in the case of Libya, which led to the indictment of Colonel Gaddafi and others for serious crimes committed in the context of the ongoing violence. In such cases, the referral of the Security Council is bound to contribute to criticisms concerning the independence of the ICC and its neutrality. While this is an argument often raised by the accused politicians, it can nevertheless generate a negative perception on the Court.
In spite of the limitations that the ICC faces, it can be said it has come to be recognized as the main actor in the application and development of International Criminal Law in a relatively short period of time. More and more victims are able to participate before the ICC, which shows certain recognition of the importance of the Court at the local level, be it for the prosecution of the perpetrators or the prevention of mass crimes.
Accordingly, it is indispensible that States Parties and the NGOs continue to contribute to the development of the ICC, follow up on the activities of the court with a critical eye. It is equally important to support and encourage domestic investigations and prosecutions of serious human rights given that States bear the primary responsibility for the prosecution of such crimes.
For more information on the day: