War crimes, genocide and crimes against humanity are some of the most serious offences under international law. But who administers justice? How are suspects brought to trial? Who hears the cases and decides on a sentence if guilt is proven?
This briefing answers these basic questions by focusing on the work of the International Criminal Court in The Hague. It also suggests areas of interest which teachers and other educators might like to raise with children and young people.
Curriculum links: Citizenship
What is the International Criminal Court for?
It has the power to investigate and try people suspected of war crimes, genocide and crimes against humanity.
Countries should use their own national courts to try anyone who is alleged to have committed such serious violations of international law. Historically, however, although states have prosecuted people from other countries, they have generally been much less willing or able to put their own nationals on trial. One recent solution has been temporary international criminal tribunals established by the United Nations. These have tried people for war crimes and other serious international crimes following, for instance, the Rwanda genocide in the 1990s and the conflict in the former Yugoslavia. These temporary tribunals are still hearing cases.
But now there is a permanent International Criminal Court, separate from the United Nations. Based in the Netherlands city of The Hague, it became effective in 2003 with the aim of ensuring "that no ruler, no State, no junta and no army anywhere can abuse human rights with impunity". These are the words of Kofi Annan, United Nations Secretary-General, expressing the idea of a world in which innocent people know that their rights will be defended and those who violate them will be punished.
Why is it needed?
In the past 50 years, there have been many crimes against humanity and appalling war crimes for which no individuals have been held accountable. In Cambodia in the 1970s, an estimated two million people were killed by the Khmer Rouge. In armed conflicts in Mozambique, Liberia, El Salvador and other countries, there has been tremendous loss of civilian life, including horrifying numbers of unarmed women and children. There have been massacres of civilians in Algeria, Sudan and in the Great Lakes region of Africa.
It is hard to overstate the suffering of millions of children, women and men in unimaginable atrocities. The aim is that from now on those responsible for such crimes can be dealt with by the new Court, when national courts are unable or unwilling to prosecute.
What kinds of cases can be brought before the court?
Genocide covers acts committed with the intent to destroy, in whole or in part, a national, ethnic, racial or religious group. That can include killing or seriously injuring members of that group, forcibly transferring children from one group to another group, or acts designed to prevent births of children to a particular group.
Crimes against humanity encompass a large number of crimes – murder, torture, enslavement, arbitrary imprisonment, enforced disappearances and rape – committed systematically or on a large scale against civilians.
A war crime is a grave breach of the Geneva Conventions or other serious violation of the laws and customs that apply to armed conflicts. That can include wilful killing, torture or inhumane treatment, taking hostages, killing prisoners, attacks on undefended towns which are not military objectives, or attacks on civilians or on those who are providing humanitarian assistance. The list is long, but the overall aim of the laws is to reduce unnecessary suffering and death associated with conflicts.
In theory, the International Criminal Court also has the right to prosecute for crimes of aggression, that is resorting to military action without a lawful justification. But in practice the international community has not yet agreed a way of defining this very complex and sensitive area of law so no prosecutions are expected soon.
At the moment the Court is actively investigating situations in Uganda, in the Democratic Republic of Congo and most recently in Darfur, Sudan
Who will be tried and what kinds of sentences might the court pass?
Anyone who is suspected of an offence over which the Court has jurisdiction can be brought to trial. They could be ordinary soldiers, officers, members of militias or rebel groups and politicians, including heads of government or heads of state. The Court cannot hear cases against States themselves, but only against individuals.
Sentences include imprisonment, which may be life imprisonment, and fines. The Court can also order the forfeiting of proceeds and property derived from a crime. The Court does not have the power to impose the death sentence, even for the worst of crimes.
States can themselves refer cases for investigation by the Court. But the Court Prosecutor also has the power to begin investigations, without the need for referral. This is important because, in the past, some states have been reluctant or unable to prosecute, sometimes because of fears of further conflict or even because no satisfactory government exists. The United Nations Security Council can also refer a situation to the Prosecutor for investigation.
What is the point of trials after a conflict?
Punishing the guilty may make future atrocities and serious crimes less likely. It also can go some way to satisfying the need for justice felt by victims and their families. An investigation and trial can sometimes be the only way that families discover the truth about what happened to their relatives. Hard though it may be to relive the details of tragic personal loss or times of great suffering, it can be necessary before people begin the process of rebuilding their lives.
How will trying criminals help victims?
It is sometimes said that trials do little to help victims and their families. They can feel like pawns in a legal battle between prosecution and defence.
However, the way the International Criminal Court was set up allows victims to present their views and observations before the Court. Victims – people who have been harmed by crimes covered by the Court – can take part in trials and can seek reparation, which could be some form of damages or compensation. There are also arrangements to give victims anonymity and protection.
Is everyone in favour of the International Criminal Court?
No. Although many countries have ratified the Rome Statute which established the Court, there are some big names who haven’t. The USA is unwilling to ratify the Statute, believing that there is a risk to its soldiers and politicians of politically-motivated prosecutions. China will not sign because it also fears political bias and thinks that developing domestic judicial systems is the best way to deal with grave crimes. Similarly, the Russian Federation and important regional powers like India and Pakistan have yet to agree to be bound by the Statute.
As of January 2006, 100 states have ratified the Statute. A further 43 have signed the agreement, a stage prior to ratification, though states need to go on to ratify the Statute for them to be legally bound by it.
Discussion and activities
- There is a cynical saying that someone who kills one person risks ending up in prison. Someone who kills thousands is invited to peace talks. Talk about what this means. Will the International Criminal Court change this?
- Do students feel safer knowing that there is an international court that can prosecute for serious international crimes? Will it make a practical difference to people’s lives?
- A country’s leader who shocks the world with crimes against humanity, war crimes or acts of genocide might in future be investigated by the Court and a warrant issued for their arrest. Could this sometimes be a realistic alternative to a full-scale military invasion in order to prevent serious human rights abuses?
- The international community hopes to agree a definition of the crime of aggression in the forthcoming years. Talk about the practical problems. The right of self-defence is established in law. How do you separate legitimate self-defence from an act of aggression? Discuss the problems of determining ‘who started it’ and who is ‘in the right’ in situations students are likely to be familiar with, including personal conflicts from their own experience.
It is important to distinguish between the International Criminal Court as described in this briefing and the International Court of Justice. The International Court of Justice deals with legal disputes between countries, and is quite separate from the International Criminal Court. Confusingly it also sits in The Hague, in the Netherlands.
This briefing was written by P. J. White.