Also by: George Summers
History of the Court
The concept of an international court to judge war crimes was suggested during the Paris Peace Conference following World War I. The first model fell out of use with the isolationism and economic crash of the 1930s and war in the 1940s, and was dissolved in 1946. Following World War II and with the creation of the United Nations in 1945, the new Court of International Justice was also created.
This was not the International Criminal Court, though! Confusing, I know. The purpose of this court, as stated on the UN website, was:
- “To settle, in accordance with international law, legal disputes submitted by states”
- “To give advisory opinions on legal questions referred to it by authorized UN organs and specialized agencies.”
And to make it even more confusing, both courts are in the Hague.
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Between 1947 and 1948, the United Nations General Assembly created the International Law Commission with the purpose of “the promotion of the progressive development of international law and its codification.” (United Nations 1947) December 9th, 1948 saw the United Nations adopt the Convention on the Prevention and Punishment of the Crime of Genocide. And there hasn’t been a single genocide in the entire world ever since! Just kidding.
The Cold War largely prevented the creation of the International Criminal Court, but in the 1980s the idea of an international court to bring criminals to justice was revived by Arthur Napoleon Raymond Robinson, the President of Trinidad and Tobago.
Robinson felt a court would be necessary in the 1980s drug wars that were occurring, and brought the matter before the United Nations General Assembly in 1989. (International Criminal Court 2006)
In 1991, the Eastern Bloc and the Soviet Union dissolved, and the Balkans plunged into bloody conflict. The news of the war crimes committed during this period brought about the creation of a new court…which was also still not the International Criminal Court. Instead, it was the International Criminal Tribunal for the Former Yugoslavia of 1993. This tribunal worked to bring to justice multiple participants in the ethnic cleansing that rocked the countries that had previously made up Yugoslavia, finally closing on December 31st, 2017.
The 1994 genocide of the Tutsis in Rwanda was also not the catalyst to establish the ICC, though it was another factor in the groundwork. It was not until July 17th, 1998, that the Rome statute, the treaty establishing the court, was signed. It was adopted by 120 countries. But the United States is not a party to the International Criminal Court and voted against the Rome Statute. The other six countries to vote against it were China, Iraq, Libya, Yemen, Qatar and Israel.
The Clinton Administration signed the treaty, but saw “significant flaws.” The United States has also not had the best relationship with the ICC. Former ambassador to the UN John Bolton famously said: “We should isolate and ignore the ICC. Specifically, I propose for the United States policy- I have got a title for it…I call it the Three No’s: no financial support, directly or indirectly; no collaboration; and no further negotiations with other governments to improve the Statute. This approach is likely to maximize the chances that the ICC will wither and collapse, which should be our objective.” (ICC Now)
American animosity towards this institution is likely not helped by the fact that on November 3rd, 2017, ICC prosecutor Fatou Bensouda announced that her office had “reasonable basis to believe” that crimes against humanity had been committed by U.S. forces during the War on Terror. (Foreign Affairs 2017)
Who Has the Court Gone After?
Currently there are 12 people detained in a prison in the Hague. Fun fact: they’re nearly all from Africa! The Court has been criticized by multiple African nations for allegedly focusing on African war crimes over others. Indeed, the Wikipedia entry for investigations and prosecutions by the Court notes only one other country- Georgia- where investigations are occurring, due to the 2008 war with Russia. (Russia is not a party to the ICC, and will not cooperate with it.)
In Understanding the International Criminal Court, this very accusation is given a response:
“The ICC is concerned with countries that have accepted the Court’s jurisdiction and these are in all continents. African countries have made great contributions to the establishment of the Court and influenced the decision to have an Independent Office of the Prosecutor. In 1997, the Southern African Development Community (SADC) was very active in supporting the proposed Court and its declaration on the matter was endorsed in February 1998, by the participants of the African Conference meeting in Dakar, Senegal, through the ‘Declaration on the Establishment of the International Criminal Court’. At the Rome Conference itself, the most meaningful declarations about the Court were made by Africans. Without African support the Rome Statute might never have been adopted. In fact, Africa is the most heavily represented region in the Court’s membership. The trust and support comes not only from the governments, but also from civil society organizations. The Court has also benefited from the professional experience of Africans and a number of Africans occupy high-level positions in all organs of the Court.”
It can be debated whether this is sufficient to end claims of discrimination, or if this is merely the more-professional version of when white people point out how many non-white friends they have to downplay arguments of racism.
It may also be worth noting what states signed the Rome Statute, but then opted to withdraw, ending their obligations to the ICC…and some possible reasons why (United Nations Treaty Collection 2018):
- The Government of the United States on May 6th, 2002.
- The War on Terror
- The Government of Israel on August 24th, 2002.
- Apartheid state with heavy abuses against the Palestinians
- The Government of Sudan on August 26th, 2008.
- Sudan had a notoriously vicious Civil War that lasted from 1983 until 2005, and even afterwards the country was unstable. They used child soldiers
- The Government of the Russian Federation on November 30th, 2016.
- The Russo-Chechen War of the 1990s and early 2000s
- The Annexation of Crimea in 2014
- Suspicious deaths of political opponents
- The Government of the United States on May 6th, 2002.
Are governments just allowed to leave at any time? If so, what purpose is the court if people that commit crimes can just say, “Screw this, I’m out?”
The Washington Post notes that prosecution by the ICC can be flawed, partly because in fights for national power, both sides can commit horrendous war crimes, and the victor may cooperate with the ICC because it makes them look more legitimate and distracts from their own crimes.
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References on those imprisoned