By Janet Sankale
On Saturday, July 17, the world will mark the International Criminal Justice Day, a day that commemorates the adoption of the Rome Statute, the founding treaty of the International Criminal Court (ICC).
The anniversary provides another moment to reflect on the great strides the international criminal justice system has made since those first attempts to establish international law shortly after the Second World War in the form of the Nuremberg and Tokyo trials. The period stretches from the Moscow Declaration of October 30, 1943 to July 17, 1998, when the Diplomatic Conference adopted the Rome Statute, which established the first permanent international criminal court, the ICC.
After years of negotiations aimed at establishing a permanent tribunal to prosecute individuals accused of international crimes, the United Nations General Assembly (UNGA) convened a five-week Diplomatic Conference in Rome, Italy, in June 1998. Delegations from 160 countries, intergovernmental organisations, and dozens of NGOs met at the conference to finalise and adopt a convention on the establishment of an international criminal court.
On July 17, 1998, the Rome Statute was adopted by a vote of 120 to seven, with 21 countries abstaining. According to the American Society of International Law (ASIL), insiders reported that the United States, China, Libya, Iraq, Israel, Qatar, and Yemen voted against the treaty.
The statute establishes the court’s functions, jurisdiction, and structure. It addresses four core international crimes: genocide, crimes against humanity, war crimes, and the crime of aggression.
The international court is rooted in World War II, when the Allied powers (United States, France, United Kingdom, and the Soviet Union) came together to oppose the Axis powers (Germany, Japan, and Italy) and try to stop the atrocities that were happening as the aggressors threatened to overrun the world. The Moscow and Potsdam declarations addressed the punishment of war crimes committed by the German and Japanese governments and other actors such as military commanders.
It was the result of long-drawn attempts by the Allied powers to establish a permanent court with universal jurisdiction that could deal with the individuals responsible for the heinous crimes committed during the war, crimes that had shocked the conscience of humanity.
The efforts for international justice continued even after the war ended. The Allied powers met in London to draft the charter of an international tribunal (the London Charter, August 1945), which formed the basis of the Nuremberg International Military Tribunal (IMT). The charter was founded on the declaration that German actions would not go unpunished and justice would be served for those that not only caused the outbreak of the war but also committed atrocities during the hostilities. The tribunal held a combined trial of senior Nazi political and military leaders as well as several Nazi organisations. The IMT had the authority to try and punish persons who committed crimes against peace, war crimes, crimes against humanity, and conspiracy.
“There can be no peace without justice, no justice without law and no meaningful law without a court to decide what is just and lawful under any given circumstance,” said Benjamin B. Ferencz, a former Nuremberg prosecutor.
The Tokyo IMT, also known as the International Military Tribunal for the Far East, was created in Tokyo, Japan, in January 1946 by a proclamation of General Douglas MacArthur with powers granted by the Allied states as Supreme Commander to implement the Potsdam Declaration. The declaration demanded Japan’s immediate and unconditional surrender and stated that “stern justice shall be meted out to all war criminals”. The tribunal closely followed the Nuremberg IMT’s opinion on all aspects of law based on the binding nature of the decisions of the tribunal’s charter. The tribunal held trials that had senior Japanese political and military leaders in the dock.
While the origins of the two tribunals differ slightly, both were created for the same reasons ˗ to punish the people who had committed terrible offences during World War II. The Nuremberg and Tokyo international military tribunals marked a crucial moment in the legal history of international criminal law (ICL) as they confirmed that individuals could be held criminally responsible for international crimes regardless of their official rank, and that superiors’ orders were not a defence.
International criminal law is largely based upon the concepts of retribution, deterrence, and rehabilitation. It has its origins from post-World War II, and the desire to ensure that the tragedies of that time, such as the Holocaust, would never be repeated. ICL sees national courts as the courts of first resort, although prosecution of international crimes in domestic courts is a rare occurrence.
The ICC is a complementarity court, a court of last resort, meaning that primary jurisdiction is given to domestic courts. Every state has a responsibility to exercise its jurisdiction over international crimes. The ICC can only investigate and prosecute the four core international crimes in situations where States Parties to the Rome Statute are unable and/or unwilling to do so.
The Rome Statute is the result of multiple attempts to create a supranational and international tribunal. On December 9, 1948, the UNGA adopted the Convention on the Prevention and Punishment of the Crime of Genocide to try perpetrators of genocide before the international penal tribunals. This was the first step in the establishment of a permanent international criminal tribunal with jurisdiction for crimes defined in international treaties.
UNGA then invited the International Law Commission (ILC) to draft a statute for an international criminal court. The commission established a committee to draft the statute in 1951 and 1954. Despite the commission’s efforts to codify the legal principles, the process was delayed by the onset of the Cold War shortly after World War II.
After the end of the Cold War, the United Nations Security Council (UNSC), through Chapter VII of the charter that regulates the council’s power to maintain peace and security in the world, established two ad hoc tribunals ˗ the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). These were temporarily established to try crimes committed only within a specific time frame and during a specific conflict. However, the quest for a permanent international criminal court continued and in 1989, the ILC resumed its work of drafting a statute for an international criminal court.
The ICTY, whose mandate lasted from 1993 to 2017, was the first ad hoc (temporary) UN international criminal tribunal and was created to respond to the Yugoslavia wars of dissolution that saw the country break up after a series of armed conflicts. The tribunal was charged with prosecuting the perpetrators of war crimes, sexual offences, and ethnic cleansing. The ICTR, which opened in 1995, was established to hold accountable the people responsible for genocide in Rwanda between January 1 and December 31, 1994.
The ILC presented to UNGA the final draft statute for an international criminal court in 1995. The General Assembly established the Ad Hoc Committee on the Establishment of an International Criminal Court to consider substantive issues in the draft statute. It also created the Preparatory Committee on the Establishment of an International Criminal Court chaired by Adriaan Bos, which approved the final draft statute during its March-April, 1998 meeting. Later the same year the General Assembly scheduled a meeting for June 1998 in Rome. It was tasked with finalising and adopting a convention to establish an international criminal court.
“In the prospect of an international criminal court lies the promise of universal justice. That is the simple and soaring hope of this vision. We are close to its realisation. We will do our part to see it through till the end. We ask you to do yours in our struggle to ensure that no ruler, no state, no junta, and no army anywhere can abuse human rights with impunity. Only then will the innocents of distant wars and conflicts know that they, too, may sleep under the cover of justice; that they, too, have rights, and that those who violate those rights will be punished,” Kofi Annan, the United Nations Secretary-General (1997-2006), stated.
The Rome Statute of the International Criminal Court was adopted on July 17, 1998, and was now open for signature and ratification. By April 11, 2002, 60 states had ratified the statute, which entered into force on July 1, 2002. The ICC is the world’s first and only permanent international criminal court and can only prosecute crimes committed on or after that date.
The ICC does not have its own police force and depends on the cooperation of member states to enforce its decisions. It is an organ that is independent from the United Nations. However, the UNSC can refer situations to the ICC for countries that are not a parties to the ICC statute. The ICC can initiate investigations proprio motu based on information on crimes within the jurisdiction of the court and by a state referral that is a party to the Rome Statute.
Some 123 countries are States Parties to the Rome Statute of the ICC. Another 31 countries have signed the statute but have not ratified it. 41 member states of the UN have neither signed nor acceded to the Rome Statute, including three permanent members of the UNSC, which have veto power (the United States, China, and Russia).
International Criminal Justice Day unites all who wish to support justice, promote the rights of victims, and help prevent crimes that threaten the peace, security, and well-being of the world. This year the statute marks its 23rd anniversary as the ICC welcomes its new Prosecutor, Karim Khan QC, who took office on June 16, 2021.
