The Challenges of National Prosecutions for International Crimes

Introduction

The idea of a permanent international criminal court can be traced to the late 19th Century. In 1870,  Gustav  Moynier, one of the founders of the International Committee of the Red Cross called for the establishment of an International Permanent Court,[1] in his commentary on the 1864 convention regarding the treatment of wounded soldiers, he stated that “a treaty was not a law imposed by a superior authority on its subordinates but only a contract whose signatories cannot decree penalties against themselves since there would be no one to implement them. The only reasonable guarantee should lie in the creation of international jurisdiction with the necessary power to compel obedience.”[2] He subsequently drafted a proposal for the establishment of an International Criminal Tribunal which was presented to the International Committee of the Red Cross in 1872. However at that time, the international community was not ready to embrace the idea of setting up a permanent International Criminal Court.[3]

After the First World War, the attempts to establish an International Criminal Court were renewed. A proposal was submitted by the Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties to establish a tribunal with judges from different nations.[4] The victorious nations in the First World War also signed the Versailles treaty which called for the punishment of individuals responsible for committing war crimes during the war.[5] The concept of an International tribunal to prosecute individuals for breaching international law can also be inferred in Article 227 which called for the creation of a special tribunal to try General Emperor Kaiser Wilhelm for war crimes committed during the First World War. However, though Kaiser Wilhelm was indicted, he was never prosecuted.[6]  In addition, attempts to prosecute German military personnel for committing war crimes before an International Court also did not materialize.[7] Instead they were allowed to be tried before their domestic court and most of them were acquitted. The high regard for national sovereignty explains why it was difficult at that time to establish an International Criminal Tribunal and indict either a State official or Head of State for war crimes.

After the end of the Second World War, the International Military Tribunal was established to prosecute and convict Nazi officers who had committed heinous crimes during the Second World War.[8] Following the prosecution of these officers, other prominent individuals were also prosecuted pursuant to Allied Control Council Law No. 10[9] for their involvement in crimes committed by the Nazi government.[10] The Tokyo military tribunal also prosecuted and convicted seven prominent Japanese leaders for their involvement in war crimes that were committed during the Second World War.[11]  Both tribunals, however, were accused of being biased and mere institutions of victor’s justice[12] that turned a blind eye to the crimes committed by the Allied forces.[13] Nonetheless the prosecution of prominent state officials by these tribunals set an important precedent and showed that state sovereignty could no longer be used as a means of protection from prosecution for heinous crimes. There were also discussions in the international community to have an international tribunal that would be tasked with prosecuting perpetrators of serious international crimes such as genocide.

In 1948, the United Nations General Assembly passed a resolution which invited the International Law Commission to study the desirability and possibility of establishing an international judicial organ for the trial of crimes charged with genocide or crimes with similar gravity.[14]  A Committee was established by the General Assembly which drafted the Statute for the establishment of the Court in 1952. However, the contentious issue of defining the crime against aggression led to the postponement of the review of the draft statute by the General Assembly. Moreover at that time, the on-going Cold War was a distraction to the international community and paralyzed the work of the General Assembly. [15] It was not until 1989 that work resumed on the establishment of a permanent international criminal court after Trinidad and Tobago which was dealing with a serious problem of drug trafficking called upon the United Nations to create an international criminal court.[16]

Consequently, the International Law Commission resumed their work a draft Statute of the International Criminal Court (1994) and the Code of Crimes (1996) was prepared. However, a permanent Court was not established - two events that shocked the world’s conscience in Yugoslavia and Rwanda necessitated immediate action from the United Nations which was tasked with creating ad hoc tribunals to prosecute persons responsible for serious violations of international humanitarian law committed in the respective countries. The process of setting up the tribunals, long court delays and operational expenses of the tribunals, among other reasons, made the U.N. Security Council less willing to set up similar tribunals culminating in the eventual establishment of the International Criminal Court. 

MAIN REASONS FOR THE ESTABLISHMENT OF THE INTERNATIONAL CRIMINAL COURT

The main reasons for the establishment of the International Criminal Court (ICC) include the following:

THE OBLIGATION TO PROSECUTE AND PUNISH CERTAIN VIOLATIONS OF IHL

1. International armed conflicts

Common Article 49 / 50 / 129 and 146 to the 1949 Geneva Conventions compels all High Contracting Parties, i.e. virtually the entirety of the community of States, to enact criminal legislation for all individuals having (ordered to) committed those crimes which qualify as “grave breaches” under the Conventions. In respect of these individuals, “each High Contracting Party shall be under the obligation to search for (them) and shall bring such persons, regardless of their nationality, before its own courts.” Thus, States have been made responsible for upholding and enforcing the principle of individual criminal responsibility for “grave breaches” of IHL in international armed conflicts. Clearly, the mere adoption of a law satisfying the Conventions’ requirements does not suffice, as States have an active duty to search for and prosecute these individuals. However, the turn from theory to practice is not always easy and uncontested, as is inter alia demonstrated by Belgium’s experience in implementing and enforcing the requirement to incriminate  to search and to prosecute through its so-called “universal jurisdiction law” of 1993/1999 (meanwhile repealed and replaced by a Law of 5 August 2003).

A State, however, is not necessarily compelled to bring these individuals before its own courts in order to comply with the Conventions. Indeed, the same article goes on to say that a State “may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.” This is an application of the “aut dedere, aut judicare” principle, which equally applies to States which are in no way involved in the armed conflict. Hence, this clearly is a form of universal jurisdiction. However, also here the turn from theory to practice has been far from smooth. Indeed, notwithstanding the aforementioned provisions of the Geneva Conventions, prosecution was virtually always exclusively initiated by either the State of which the perpetrator was a national or by the State which had physically captured that person. In more recent years, though, some States have started to enact domestic legislation empowering their authorities to exercise universal jurisdiction, sometimes even vis-à-vis individuals they have not captured or which are not on their territory. In these instances, the State is trying to exercise universal jurisdiction in absentia, a very contested notion in international law.

However this may be, it is certain that the Geneva Conventions impose certain active duties on the Contracting Parties, which are reinforced by the obligation of common Article 1, pursuant to which “the High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances”, the interpretation of which has been expanded through some recent evolutions and judicial construction even though its geographical scope remains unclear. As stated above, the duty to search for and prosecute those suspected of having committed grave breaches of the Geneva Conventions will have to abide by other rules of international law restricting the scope of extraterritorial jurisdiction.

While time and space prevent us from further elaborating this point, it must be spelled out that the same common Article 49 etc. provides in its third paragraph for the obligation that “Each High Contracting Party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches (…)”. (emphasis added) This paragraph speaks of “taking measures”, but it does not specify exactly what is meant by that. Does the obligation go as far as requiring a State to incriminate, search and prosecute? The Commentaries to the Geneva Conventions, conceding the paragraph is “open to various interpretations”, state that it “covers everything a state can do to prevent the commission, or the repetition, of acts contrary to the Convention.”, and stipulate that States should “insert in their legislation a general clause providing for the punishment of other breaches”.[18] Despite these interpretations of the Commentaries, the paragraph’s precise scope is to be further explored, just as the duty imposed by human rights treaties to take certain measures needs to be assessed, as will be done in the fourth part of this presentation. To conclude, it can be said that, notwithstanding the fact that in 1977 the First Additional Protocol to the Geneva Conventions enlarged the number of conflicts being qualified as “international armed conflicts”, States were for a long time not making substantial efforts to live up to their treaty obligations.

b. Non - international armed conflicts

As far as the obligation to prosecute and punish violations of IHL in non-international armed conflicts is concerned, there have been quite some significant changes in recent years. Indeed, under the Geneva Conventions, there simply is no obligation to prosecute for non-international armed conflicts, such conflicts being only cursorily dealt with in their common Article III. Nor was there a system of “grave breaches”, while the decision to prosecute was entirely left to national criminal law. Thus, impunity prevailed almost always when the non-state actor eventually won the civil war or when an amnesty was part of the consideration underlying parties’ consenting to a peace agreement. Particularly disturbing from an “obligation to prosecute” perspective is Article 6, paragraph 5, of the Second Additional Protocol to the Geneva Conventions: while this article, entitled “penal prosecutions”, mostly contains provisions of a human rights / fair trial nature, the said paragraph provides that “at the end of hostilities, the authorities in power shall Endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to anything, the Rome Statute has drastically reversed this pattern of condoning impunity: indeed, war crimes can now also be committed in a context of a non-international armed conflict,even though the list of war crimes in the latter context is less expanded than the list which has been provided for international armed conflicts. Thus, without explicitly saying so, the Rome Statute declares applicable to non-international armed conflicts what has traditionally been referred to as “international crimes”: the nature of the crime, rather than the context in which it is being perpetrated, becomes the defining criterion qualifying States’ obligations. Over the last years, a number of national courts have tried several persons for war crimes committed in non-international armed conflicts on the basis of universal jurisdiction, prompting the ICRC in its impressive Customary International Humanitarian Law study to conclude that the right of States to vest universal jurisdiction in their national courts for war crimes committed in non-international armed conflicts is now established as a norm of customary international law.[19] However, these evolutions do not provide sufficient evidence for arguing that there is an unqualified duty under international law, applicable to other States than the one involved in the non-international armed conflict, to prosecute violations of IHL committed in non-international armed conflicts.

c. Genocide and Crimes against Humanity

While, as previously mentioned, the ICC has been given jurisdiction over both genocide and crimes against humanity (CAH), this leaves unanswered the question whether States are under an international legal obligation to prosecute genocide and CAH, committed in or outside their territory and by their or by foreign nationals respectively.

In respect of genocide, the answer to the question raised is less controversial than in respect of CAH. Indeed, the 1948 Convention on the Prevention and Punishment of the Crime of Genocide confirms, in its Article I, that “genocide, whether committed in time of peace or in time of war, is a crime under international law which they (the Contracting Parties) undertake to prevent and to punish” (emphasis added) This undertaking to punish individuals having committed genocide is repeated in Article IV. Pursuant to Article V, all Contracting Parties have the obligation to enact, inter alia, criminal legislation applicable to perpetrators of genocide. The crux of the matter for determining the scope of application of the undeniably applicable duty to prosecute genocide, however, lies in Article VI, which stipulates that “persons charged with genocide shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.” Clearly, the basic duty to prosecute exclusively rests, according to the treaty text, on the State on whose territory the genocide has been committed, thus excluding any universal jurisdiction, as is confirmed in the Convention’s t avaux préparatoires.[20]

The “international penal tribunal”, already envisaged in this 1948 text, only materialized in 2002. Of the first few decades after the Convention’s adoption, apart from the famous Eichmann-trial in Israel and some other prosecutions, no real practice had developed under which it could be affirmed that States regarded it as a customary international law duty, irrespective of the restrictions imposed by the Convention’s text, to prosecute in their national courts individuals having perpetrated genocide on another State’s territory. Some courts, however, had gone in this direction by interpreting Article VI as allowing for universal jurisdiction, thus corroborating the submission of a number of commentators that customary international law had evolved towards a recognition of allowing universal jurisdiction for genocide.[21]This situation of paralysis – absence of an international criminal court and most often a lack of willingness of the State on whose territory the genocide had been committed to prosecute its perpetrators – started to change in the early 1990s, when both the ICC started to become a realistic option, the ICTY and the ICTR were created and some States prosecuted individuals having committed a genocide with which they had, strictly speaking, no link. This changing climate may explain why the International Court of Justice, in the case Application of the Convention on the Prevention and Punishment of the Crime of Genocide, noted that "the obligation each State thus has to prevent and to punish the crime of genocide is not territorially limited by the Convention”[22], a view which was equally confirmed by the ICTR in the Ntuyahaga case.[23]

The existence of a duty to prosecute CAH is a different story: indeed, apart from their definition in the International Law Commission’s no international treaty defined the concept until recently. It is uncertain to what extent actual State practice confirms the doctrinal point of view that, as international crimes, they should be sanctioned with universal jurisdiction.[24] Indeed, many States which did provide for domestic legislation over CAH committed abroad included requirements in terms of links with the State prosecuting the crimes, thus remaining below true universal jurisdiction. In this respect too, it is to be hoped that the coming years, benefiting from definition agreed upon in the Rome Statute, will provide further guidance of the extent to which States consider they are bound by a customary international law duty to prosecute CAH committed abroad.

THE COURT’S CHALLENGES

Notwithstanding its impact, the Court continues to face challenges. Since its establishment, the effectiveness of the Court has been called into question. However, there are interrelated factors that have contributed to the ineffectiveness of the Court for instance, the lack of an efficient police force, the difficulty of indictment and lack of substantial financial and diplomatic support for the Court. For the Court to be effective in its operations, such challenges have to be resolved.

Lack of Police Force : The Court lacks executive powers and a police force. As a result, it is completely dependent on State Parties. State Parties have an obligation to cooperate with the Court. Under Article 86, “States shall in accordance with the provisions of the Statute, cooperate fully with the provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.” The Court also relies on non State Parties, interregional bodies and international organizations to apprehend and surrender indicted persons and assist it in its investigations and prosecutions. However, some State Parties and interregional organizations pay lip service to this provision. For example, Kenya and Mali which State Parties to the Rome Statute failed to cooperate with the Court in apprehending and arresting Al-Basher after the Court issued his arrest warrants.[25] When the Court issued decisions reminding these States about their obligation to cooperate with the Court, they were still not forthcoming with this cooperation. The African Union, a regional organization made of African member States, which was initially receptive to the Court changed its tune when the arrest warrants for Omar Al-Bashir were issued and discouraged its member states from cooperating with the Court.[26] This creates a serious problem for the Court because it needs the cooperation of the African Union in order to uphold perpetrators especially considering the fact that currently most of the situations and cases are in Africa. 

Financial Limitations of the Court: There have been mounting concerns over the cost of the Court’s activities and the long court proceedings which are similar in nature to the ad hoc tribunals. It has been documented that since its inception, the Court had cost the international community approximately 900 million dollars.[27] Is the 900 million dollars justified? Currently, there are currently 18 cases and 8 Situations before the Court. This necessitates a mass recruitment of court staff, investigations and outreach to enable the Court conduct its investigations and prosecutions smoothly. To accomplish those objectives, the Court needs money. Currently Britain, Germany and France help to finance the court and contribute staff members while the European Union covers most of the Courts budget and the Netherlands pledged ten years of free rent in the Hague as well as $70 million for starting costs.[28] However, State Parties are trying to restrict the funding that is received by the Court yet as illustrated above, funding is vital for the Court to function. It is true that there have been long court proceedings and delays which has contributed to the high operation costs. But we have to take into consideration that the ICC is the first of its kind in the world. No guidelines were provided regarding the Court’s operations. In retrospect conducting the proceedings and running the Court was trial and error. It is also imperative that with the dramatic increase in the cases, the Court will need to grow its expertise and productivity. For the Court to achieve this goal, it will need to have sufficient resources. Moreover, given the referrals from the U.N. Security Council that the Court receives unexpectedly, the Court cannot operate on a strict budget every year.

Difficulty in obtaining Evidence: The Court also faces difficulty in obtaining evidence required in its court proceedings. The investigations carried out by the Court to gather relevant evidence are often complex and conducted in dangerous, remote and at times insecure areas. For example in the DRC, Central African Republic, and Darfur, the Court faced logistical and technical difficulties in obtaining evidence.[29] In Libya, four staff members of the Court were arrested and detained after they had undertaken a mission to visit with Saif-Al-Islam Qaddafi.[30] The insecure areas that staff visit during the investigation phase are a risk to their safety.  This, coupled with financial and institutional constraints in carrying out these investigations also creates obstacles for the Court. 

Misconception that the Court is Biased: There are currently seven situations before the Court and all of them are in Africa States. These include: Uganda, Democratic Republic of Congo, Central African Republic, Sudan (Darfur), Kenya, Libya and the Ivory Coast. This has led to criticism that the Court is only targeting African States yet the crimes that fall under the Court’s jurisdiction are not limited to Africa.  There are valid concerns raised that the exclusive restriction to cases in Africa will affect the Court’s credibility. African States acting in unison through the African Union have criticized the Court labeling it as racist.[31]The criticism increased when an arrest warrant was issued against the President of Sudan Al-Bashir and culminated in the refusal of the establishment of a liaison office in Addis Ababa.[32] Only the  Kenyan and Cote d’ Ivoire cases have been opened by the Prosecutor proprio motu. The other cases were referrals by State Parties and the U.N. Security Council It is a truism that the humanitarian violations are more severe in Africa than in other parents of the world.  For example, Mali, the Democratic Republic of Congo (DRC), the Central African Republic, Sudan, Libya, Somalia, South Sudan, Nigeria, Kenya and others all have or have had  conflicts. In some cases, the national legal systems in Africa are weak – they cannot be relied on to effectuate criminal proceedings against those perpetrators that commit heinous crimes. Moreover, there are preliminary investigations being carried out in Afghanistan, Guinea, Honduras, Korea, Nigeria, Colombia and Georgia by ICC which shows that the Court is not restricting itself to a particular continent.[33] Nonetheless, it is important to note that the investigations focusing on Africa alone do cast the Court in bad light. Should crimes under the Court’s jurisdiction occur in other parts of the world where the Court has jurisdiction, it is imperative that the Court also investigates those crimes provided that the fall under the Court’s jurisdiction.

Criticisms of Fostering Conflict instead of Reconciliation : There has been valid concern raised about the Court being an obstacle to reconciliation and the resolution of conflicts. Granting amnesties at times play a role in ending conflicts. With the ICC, there is only prosecution that awaits those who commit gravest crimes. Hence it has been argued that this makes it difficult for those leaders who are engaged in a conflict to surrender or end it because they will face indictment. In some cases, the indictment may even further fuel the conflict. When Omar-Al-Bashir was indicted, many people were apprehensive that his indictment would result in further conflict in the Darfur region and endanger peacekeeping and humanitarian operations. In Uganda, the Court’s issuing of arrest warrants against Joseph Kony and other rebels brought them to a negotiating table with the Uganda government.[34] Some rebel leaders required that their cases be terminated before the signing of any peace agreement. However, where is the justice in granting amnesty to these rebels who have commited heinous crimes? How will the victims and the rest of the international community perceive the Court if perpetrators are granted amnesty or an alternative means of justice for the sake of bringing them to the negotiating table?  In any case, under Article 53 (1)(c), “ [In] deciding whether to initiate an investigation, the prosecutor shall consider whether taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not be in the interests of justice” acts as a safeguard that allays the fears of those who believe that the Court would foster conflict instead of reconciliation. This provision shows that there may be exceptional cases where it would not be in the interests of justice for the Prosecutor to proceed with an investigation. In reaching a conclusion whether to proceed or not, the prosecutor will take into consideration, the gravity of the crime, interests of victims, particular circumstances of the accused, other justice mechanisms and peace processes.[35]

Understaffed Court: The Court is currently understaffed and cannot effectively deal with the caseload that it has nor the cases that it wants to add to its caseload. For example, when the Office of Public Counsel for the Defence (OPCD) was established, it only consisted of three staff which included the head of the office and two interns only. When the staff was appointed, at that time, it was envisaged that they would only take on one case. However, they acted outside of their mandate and provided support in two situations – the Katanga and Ngudjolo cases.[36] The office, in order to keep up with the current workload had to use its outreach funds to hire more staff. [37] The Office also had to make a request to the Assembly of States for two more senior staff but the request was rejected.[38] It is therefore important that the Court is not restricted to a zero growth scenario. As more cases are added to the Court’s case load, more staff will need to be hired. There is need for sufficient resources for the Court to function effectively.

Perception that Court is a Political Tool for the United Nations Security Council : Under Chapter VII, the United Nations Security Council has discretionary powers to determine the existence of a threat to peace and decide what measures to take without the use of force in order to implement its decisions and making referrals to the ICC. Pursuant to Chapter VII, the U.N. Security Council referred both the Situation in Sudan and Libya to the Court through.[39]However, the referrals created a problem for the Court. First the Court was perceived as a political tool for the U.N. Security Council to refer States that it did not like to the Court. At the time, those referrals were made; there were other States in the world like Syria which were experiencing conflict. However, the U.N. Security Council chose not to refer the Situation in these States to the Court yet it was evident that crimes under the Court’s jurisdiction were being committed there. Second, these States were not parties to the Statute. However, under Article 13 (b), once the U.N. Security Council refers a Situation in a Non-State Party, the Court has jurisdiction over that State. When the U.N.  Security Council referred the Situation in Sudan to the Court, cooperation from the Sudan government was not forthcoming even though the U.N. Security Council in its referral urged all member and non-member States including Sudan to cooperate with the Court.[40] Though the Prosecutor brought to the attention of U.N. Security Council, the non-cooperation of Sudan, the U.N. Security Council has not considered or adopted any measures that would result in Sudan cooperating with the Court.

Long Court Proceedings: Both at the pre-trial and trial stages, interlocutory appeals are permitted which prolong the court proceedings resulting in delays and increasing operational costs. These delays create a backlog of cases which prevent the Court from functioning effectively especially when new situations arise. In addition, they affect the credibility of the Court-its proceedings are supposed to be fair and expeditious. It therefore becomes difficult for the Court to adhere to this principle when the Pre-Trial or Trial Chamber take months to grant an interlocutory appeal and the Appeals Chamber takes several months to reach a judgment on it.[41] In some cases, the appeals do not even provide sufficient guidance to the Chambers resulting in inconsistent application of the law which leads to uncertainty.

​SUGGESTIONS:

The above challenges will continue to restrain the Court in achieving its mandate unless alternative means of enabling the Court meet its objectives are considered. In this section, I will lay out recommendations that could be implemented which would go a long way in solving some of the problems that the Court currently faces.

CONCLUSION

The ICC has come a long way since its establishment in 1998. It creation was not easy; there were different factions that emerged among the countries during the Rome negotiations and interests that needed to be considered when adopting the Rome Statute. In particular, States wanted a Court that would not infringe on their sovereignty. Others wanted a Court that would be under the control of the U.N. Security. What emerged from the negotiations was a Court that would be the last resort for prosecuting crimes that are committed under its jurisdiction when national courts are unable and unwilling to prosecute those crimes- a court that would be entirely dependent on State Parties.

Despite the aforementioned inherent limitations, the Court continues to make a big impact in strengthening the rule of law worldwide.  It has opened investigations, indicted persons and issued a conviction among others. However, it continues to face challenges which not only hamper its operations but also affect its legitimacy and credibility. This places the Court in a difficult position because of the high expectations that have been placed on it. The cooperation of State Parties, Non-State Parties and Intergovernmental organizations remains crucial for the Court to be effective.  This includes, among others diplomatic and financial support, support in gathering evidence, arresting and handing over suspects. It is imperative that the Court gets full and reliable support from all States and organizations; otherwise it will merely be a moral compass rather than a force of real might.