Doctoral Researcher in law
European University Institute, Florence
Fondation Pierre du Bois
Juillet 2009, No 6
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In 2009, we find ourselves surrounded by numerous important dates in the area of international criminal law: While last year we celebrated the tenth anniversary of the signing of the Rome Statute of the International Criminal Court, this year marks the fifteenth anniversary of the International Criminal Tribunal for Rwanda. In early 2010, the international community wi ll gather for the second review conference of the Rome Statute in Uganda, a country which until recently has been the theatre of a gruesome civil war. Moreover, this year is the 90th anniversary of the Versailles Treaty, which was the first treaty to introduce the international criminal responsibility of individuals. All this reminds us that international criminal law is an important achievement of the 20th century, and an accomplishment which needs to be developed further in the 21st century. These anniversaries allow us to contemplate the added value, beyond the purely legal, of international criminal justice to modern international governance. In tracing the emergence of this dimension of law throughout the last century, this paper will argue that international criminal law was, from the outset, inextricably linked to issues of international security, and has vastly contributed to extending the traditionally state-centred understanding of security to include individual conduct and to bring forth a global notion of ordre p ublic.
While the ICTY was still being made operational, the civil war in Rwanda in mid-1994, which culminated in the killing of several hundred thousand ethnic Tutsis and moderate Hutus by the majority Hutu faction caught the attention of global media. Once again, the international community had failed to prevent genocide. However, following the precedent of the ICTY, the UN Security Council quickly established through Resolution 955 of 8 November 1994, under Chapter VII of the UN Charter, the International Criminal Tribunal for Rwanda (ICTR), located in Arusha, Tanzania. In contrast to the ICTY, this was a more delicate exercise, since the Rwandan genocide lacked the international dimension of the post-Yugoslavian wars, and met with reservations of China, a veto-wielding permanent member of the Security Council, and Rwanda itself. Still, the ICTR was set up, and given jurisdiction over genocide, crimes against humanity and certain war crimes (i.e. violations of Common Article Three and Additional Protocol II of the Geneva Conventions, which both pertain to war crimes committed during internal conflicts) committed during the year 1994. Its first case, concerning Jean Paul Akayesu, who was found guilty of 9 counts of genocide and crimes against humanity, is notable as it constitutes the first instance in history that the Convention on the Prevention and Punishment of the Crime of Genocide of 1948 was actually enforced. On 2 October 1998, Akayesu was sentenced to life imprisonment. To date, the ICTR has completed 21 trials and convicted 29 accused, while another 11 trials are still in progress. Its completion strategy envisages the conclusion of all proceedings by 2010.
While the ad hoc tribunals of The Hague and Arusha had been mandated and staffed by the UN, thus achieving the universal legitimacy that the Nuremberg and Tokyo tribunals were lacking, it was clear from the outset that they were temporary solutions for specific situations. In the meantime, the negotiations on the establishment of a permanent international criminal court had continued, resulting in the diplomatic conference in Rome, where on 17 July 1998 the Statute of the International Criminal Court (ICC) was adopted. The ICC, also located in The Hague, has jurisdiction over the yet to be defined crime of aggression, genocide, crimes against humanity and war crimes committed after the entry into force of the Statute, which was on 1 July 2002. Currently 108 countries are parties to the Statute. A number of important states are, however, not party to the Rome Statute, including three of the five permanent UN Security Council members, China, Russia and the United States. Especially the latter has adopted an increasingly hostile attitude towards the ICC. The main reason for this is the relationship the Court has with the UN Security Council, which significantly differs from the ad hoc tribunals of the 1990s. The ICC is an institution independent from the United Nations, and the U.S. under the Bush Jr. administration was concerned that it would encroach upon U.S. sovereignty. Consequently, not only did the U.S. withdraw its signature from the Rome Statute, but it also adopted a number of so-called "Bilateral Immunity Agreements" with other countries to prevent U.S. citizens from being surrendered to the Court. Furthermore, in 2002 the U.S. Congress passed the American Servicemembers' Protection Act, which has become better known as "The Hague Invasion Act" since it provided, among other things, for the U.S. President to authorize military action to retrieve U.S. military personnel held by the Court. This is a remarkable departure from the traditional U.S. position since Nuremberg, which thus far favoured the advancement of international criminal justice. Furthermore, it should be noted that, in contrast to the ad hoc tribunals, the ICC has to exercise its mandate in a strictly complementary way. This means that it may not become active as long as states are willing and able to conduct effective proceedings. Also, the Rome Statute grants the Security Council the right to defer certain proceedings for up to one year. However, the U.S. stance is likely to become friendlier toward the ICC under the new Obama administration.
Four situations have so far been referred to the ICC: Uganda, the Democratic Republic of the Congo, the Central African Republic and Darfur, with all proceedings still ongoing. The most remarkable case is that of the incumbent Sudanese President Omar al-Bashir, against whom an arrest warrant was issued on 4 March 2009 on counts of war crimes and crimes against humanity (but not on the count of genocide). Al-Bashir is the first head of state in office to be indicted by the ICC.
This brings us to the present time, with the Review Conference of the Rome Statute to be held soon. The goals for the conference are rather modest. It is expected that it will mainly deal with the unfinished business of defining the crime of aggression, while other items on the agenda are likely to be the inclusion in the list of crimes of drug trafficking, the intentional targeting of journalists in war zones and terrorism. Especially with regard to the latter, it is highly unlikely that an agreement on a definition will be reached.
Antonio Cassese, International Criminal Law (2nd edition), Oxford University Press, Oxford, 2008
François Delpla, Nuremberg face à l'histoire, L'Archipel, Paris, 2006
Carla Del Ponte & Chuck Sudetic, Madame Prosecutor: Confrontations with Humanity's Worst Criminals and the Culture of Impunity, Other Press, New York, 2009
Norbert Ehrenfreund, The Nuremberg Legacy: How the Nazi War Crimes Trials Changed the Course of History, Palgrave Macmillan, New York, 2007
Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court (2nd edition, C.H. Beck, Munich, 2008
William Schabas, The UN International Criminal Tribunals: The Former Yugoslavia, Rwanda and Sierra Leone, 2006, Cambridge University Press, Cambridge, 2006
Disclaimer: The views expressed in this paper are those of the author alone and do not necessarily reflect the opinion of the Foundation.
Mise à jour le Mercredi, 24 Mars 2010 12:02