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The International Criminal Court

“Nasty, brutish and short,” these are the words used by Thomas Hobbes, a 17th century English philosopher to describe a world in which there are no laws, “the state of nature.” When we look to any utopia, be it Star Trek, Switzerland or those days in school where a teacher decided to cancel the class and we’d all watch Shrek the Third, they all have one thing in common. A universal system of law and order. So, what happens when we try to bring this fiction into reality?

In today’s Megaprojects video we will be looking at the beginning, evolution of and perhaps even the impending end of the most ambitious legal project ever launched by our species: the International Criminal Court.

International Criminal Court 1 by Greger Ravik is licensed under CC-BY

The History of Injustice

Firstly, in order to understand the International Criminal Court, we must take the same approach of anybody watching the most recent Spiderman, we must view a painful past to understand the significance of our modern innovations.

In this sense there are broad questions which led to the creation of the ICC. You see, one of the main questions any legal system must answer is the point of authority: who do you go to in order to resolve an issue? Well, you go to a jury to resolve a murder, a Magistrate to resolve a theft, and a Psychic to resolve a YouTube copyright strike, but who do you go to for the worst of all crimes? The genocides, the crimes against humanity, the illegal wars? It’s this question which shapes much of our discussion today.

There are a few moments in history where something like this has been needed. The first of these significant moments for our purposes is the end of World War One.

Article 227 of the Treaty of Versailles, a number that sounds all so innocent, yet would be one of the primary reasons for so much pain that would take place barely 30 years later. It proclaimed that Germany held blame for the events of World War One. This on its own is not relevant here, but the second part of the article is.

If There Is Injustice Anywhere by Eden, Janine and Jim is licensed under CC-BY

The key point of criminal law compared to all other law is that in criminal law you are finding one specific individual guilty of a violation of some legal principle like murder or watching tv shows illegally online. It is this principle that Art.227 invoked, not only did 227 find Germany responsible for starting the war but it specifically held that Kaiser Wilhelm II was responsible for the waging of war. It actively called for the convening of a panel of five judges for “offences against international morality.”

Now, for several political reasons this trial never took place, but this article entrenched an idea within the international psyche, an idea that violations of international norms would no longer only lead to small punishments like an embargo. Now the very sovereigns who commanded millions could possibly go to jail or worse. This was the birth of the idea of international criminal justice.

The History of Punishment

Now to any starry eyed among you who wonder “so if they made violations of international law criminal after World War One, why do we need an International Criminal Court,” you should look away now, I don’t want to ruin your innocence.

You see, funnily enough when you say people will be punished for violating international law but don’t punish them, it doesn’t send a very clear message. Events such as the Armenian genocide, Nazi violations of the London Naval Treaty and numerous horrors of the British Empire serving as the grim heralds for this message. So, when 30 years later World War Two came to its calamitous end, the allied powers knew they had to change something… and change they did.

World War Two changed the entire world, it’s the reason we refer to it as a “World War”, and it changed the way we viewed international justice. With the International Military Tribunal sat at Nuremberg the entire face of punishment had changed…. people were going to hang now.

Most of the Nazi high command were punished through either hanging or very lengthy prison sentences. (Except for the ones rewarded with cushy jobs in the United States… that’s a story for another day).

This “Nuremberg justice” was the birth of a new era, an era of change. What had not changed however, was the crimes.

Late 20th Century Genocides

Lyon Armenian Genocide Memorial4 by Michel Bakni is licensed under CC-BY-SA

It would be nice to think that the history of genocides and war crimes ended with World War Two. Unfortunately, that’s not the case.

There are three genocides which are of key importance to our discussion today: the Rwandan Genocide (1994), the Bosnian Genocide (1995) and the Cambodian Genocide (1975-1979). It should be noted that it is impossible to do any of these genocides’ justice in this video without massively extending it, but we will give a quick background.

The Rwandan Genocide began in 1994 in the central African nation of Rwanda, a culmination of hundreds of years of bitter hatred and tension built up through a past of colonial atrocities and the exploitation of ethnic divisions by imperial powers. The genocide ended with the intervention of the United Nations.

The Bosnian Genocide began in 1991 in the Balkan states of Europe. Generally, it refers to the Srebrenica (pronounced Seb-re-niza) Massacre and many other massacres carried out at around the same time targeting various ethnic minorities: primarily Bosnian Croats and Muslims. The genocide was the boiling point of a long history of tension between groups which had been built up through hundreds of years of imperialism and colonial powers (this time the Nazis) manipulating the tension to their own gain. The genocide ended, again, with the intervention of the United Nations.

Finally, the Cambodian Genocide which occurred in 1975-1979. Many may ask why this genocide, which took place before the others is being dealt with now, but all shall become clear soon. The Cambodian Genocide, otherwise known as the Khmer (pronounced Kim-air) genocide took place in the southeast Asian country of Cambodia and was the result of the attempt of the Khmer government to transform the country into a sort of agrarian utopia. Through which however, many minorities were almost completely wiped out. The genocide came to an end only through the intervention of neighbouring Vietnam, who overthrew the Chinese backed government.

All together the death tolls from the above genocides will never be fully known, it is estimated that thousands died in the Bosnian genocide, over 1 million died in the Rwandan Genocide and anywhere between 1.5 and 2 million died in the Cambodian Genocide.

The international order was now faced with one important question, how would it deal with these horrific acts?

The answer from the international community was to echo Nuremberg; convene tribunals in coalition with whatever governments remained within the territories which the genocides had taken place. This local tribunal method would dominate the remainder of the 1990s. As such, the International Criminal Tribunal for Rwanda (ICTR) was convened in 1994, the International Criminal Tribunal for the former Yugoslavia (ICTY) was convened in 1993 and the Extraordinary Chambers in the Courts of Cambodia (ECCC) were convened in 1997, 18 full years after the Cambodian Genocide’s end.

We don’t have time to explore each tribunal today… perhaps those are stories for another day. What we can say however is that the tribunal system is seen by many as a near complete failure. Each cost the international community astronomical amounts, with the ICTY and ICTR estimated to have cost the international community around five billion dollars.

The straw which broke the camel’s back however came with the ECCC, concluding 18 years past the end of its relevant genocide. There have even been claims, from judges, that the ECCC cared less about justice than it did about politicking and attempting to bury the history of the Cambodian genocide. The Cambodian appointed judges simply blocking the prosecution of the chief of the Khmer navy Meas Muth (Pronounced Me-ass Moo-ph).

What Happens in Rome goes International

Italy, the land of pasta, wonky architecture and international justice. The treaty of Rome began life in 1989 as an idea suggested by A N R Robinson, the then Prime Minister of Trinidad and Tobago. The organisation would evolve, originally being suggested as an organisation tasked with tackling the international drugs trade.

In 1994 the International Law Commission was tasked by the United Nations with designing the constitution for this new court. This body would have the aims of providing justice in cases of genocide, war crimes and crimes against humanity. Several meetings were held at the United Nations, with six meetings held at UN headquarters in New York between 1996 and 1998, with the US delegation taking a leading role in much of the negotiations. Finally on 17th June 1998 it was ready… As the General Assembly convened in conference in Rome the statute of the International Criminal Court, henceforth known as the statute of Rome was unveiled, 120 states immediately adopted the statute, 21 abstained and seven voted against.

Of those voting against, we have China, Iraq, Israel, Libya, Qatar, Yemen and of course, the primary drafters of the statute, the United States of America. The USA took the view that ultimately the statute did not protect against politicised prosecutions.

In 2002 60 states gave final ratification to the statute, a process through which an international treaty is adopted into the actual law of a state itself. Finally the court’s doors would open, the world would finally have an arbiter of international justice.

What Does Justice Look Like?

So, the International Criminal Court has been founded, queue the end credits, that’s all folks… right?

Wrong, we have yet to cover what the International Criminal Court actually is. Let’s start with the most basic questions, what does it address?

The ICC deals with four different crimes:

Genocide- as contained within Article 6 of the Statute of Rome, this means to kill or displace members of an ethnic or racial group with the intention of destroying that group.

Crimes against humanity- as contained within Article 7 of the Statute of Rome, this means to breach principles of international morality. In short this means you are torturing or murdering your own, or another countries, citizens. An example of this would be something such as the Aktion T4 program which you can learn more about on our sister channel Into The Shadows.

War crimes- as contained within Article 8 of the Statute of Rome, this simply means breaking any of the rules of war such as killing prisoners of war or using chemical weapons.

Crimes of aggression- The lesser-known cousin of the big three we just mentioned. A crime of aggression is simply a situation where a state launches an illegal war, such as faking the circumstances from which they claim self-defence. (Which is the only legal reason to ever launch a war.)

Now, as a court responsible for the entire world, you’d be forgiven for thinking that the ICC has been busy since being founded. Since its creation the court has considered 26 different cases. This doesn’t sound too bad, until you consider that it has only reached a verdict in six of those cases. Well at least the court is providing justice throughout the world, right?… Not exactly, every one of those 26 cases came from Africa.

A Day in the Life of a Judge

So, who sits in judgement of the worst criminals in the world, and who do we trust to prosecute them?

The ICC has 18 judges split equally between the pre-trial chamber, the trial chamber and the appeals chamber; you win no points for guessing what each chamber’s purpose is.

Each judge must be from a country which has ratified the statute of Rome. There can be no more than a single judge from any one country at a time, a measure aimed at combating any one legal philosophy dominating. Judges hold their position for nine years and are not eligible to be re-elected.

The prosecutors chosen for the court are appointed in a similarly careful manner. The Office of the Prosecutor (OTP) is required by the statute of Rome to act independently from all other state or international agencies. They may open an investigation in only a few situations: firstly, where a case is referred to them by a state, secondly where the United Nations Security Council refers a case to them or thirdly, where the Pre-Trial chamber authorises them to do so.

Every nine years, a new chief prosecutor is appointed by secret ballot of the members of the International Law Commission. In 2021, British barrister Karim Khan was selected as new chief prosecutor, he is likely to be the ICC prosecutor tasked with addressing the legal implications of the so-called Islamic State.

The physical offices of the prosecutors are located within the palace of justice in the Hague. Employees of the office generally spend most of their day trying to ensure that member states play ball with whatever investigations are currently ongoing. This heavy politicisation has been a consistent criticism of the office.

The Lame Arm of the Law?

As mentioned, there are many criticisms which have been thrown at the ICC over the years.

Firstly, there have been complaints raised that the court is slow, dealing with only 6 cases in 20 years. However, when considering this you have to remember that there are only 18 judges in total which are split into three chambers. This means only six judges are actually available for each part of the trials. You also have to remember that cases within a single country can take years before they get to trial. So, obviously a case spanning multiple countries is going to take even longer.

In 2018, Donald Trump raised our second contention. At the United Nations in New York, when addressing the general assembly, he complained that the court interferes with a state’s individual sovereignty. That’s the point! Courts are meant to interfere with sovereignty to protect the general public; whether it’s from a murderer, a war criminal or a person holding suspicous fish.

Finally, the most damning of all, is the complaint that the long arm of the law has had a focused lens in its approach to justice. Every single one of the 26 cases so far brought to the ICC have been from countries in Africa. Yes, the ICC has recently opened investigations into the Myanmar crisis, but this does little to shake the idea that the ICC and the general idea of international justice is an embodiment of 21st century western imperialism. To make this complaint even worse for the ICC, several commentators have pointed to various cases of criminals who should have been dealt with by the ICC, but instead were prosecuted by their own nations. One clear example of this is Sgt. Alexander Blackman, a British Royal Marine who executed surrendering Taliban soldiers in 2011 and was subsequently sentenced for their murder in England. Sgt. Blackman was released after serving only eight years of his life sentence for what was unequivocally a war crime.

The History of Justice

We end this Megaproject with many questions as to the ideas of international justice, and more specifically the application of international justice through the ICC. The ICC is, without a doubt, the single most significant effort made by us as a species towards this goal. Despite this, its future is a troubled one. No one knows how it will change with the appointment of a new prosecutor, the uncertainty of the modern international climate, or whether it can even survive through the rising discontent against it. There is one thing we can be sure of though, the ICC has been a long time coming. It may be troubled, but its troubles are nothing compared to its past.

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