Prosecuting the most serious crimes

“In the case of the most serious crimes, you have a means to take the accused and try them before an international court if states fail to take the necessary action. I think that was something to fight for, there is no doubt about it.”

Adriaan Bos,
chairman of the international preparatory meetings for the ICC until 1998

“When I was looking for a new frontier, the International Criminal Court was, in my mind, the most exciting and significant development in international criminal justice in our generation and maybe for multiple generations.”

Christine Chung is Senior Trial Attorney at the office of the prosecutor of the International Criminal Court. She’s leading the investigation into the first case before this fledgling tribunal. Before that she was a federal prosecutor in Manhattan at the United States Attorney’s office for the southern district of New York.

“For me personally it’s obviously an entirely different field of law. You’re moving to prosecuting the most serious crimes that exist on the planet, war crimes, crimes against humanity, genocide and so the significance of what you are doing is magnified even beyond what I was doing in my home jurisdiction and I felt the crimes I was prosecuting there were pretty significant.”

The first war crimes trials
In the last century there were several attempts to establish a form of international criminal justice. The first real exercise was the Nuremberg Trials to prosecute top nazi party members. This trial, which began in 1945, sought for the first time to hold individuals responsible for war crimes committed during World War II. This was an ad hoc tribunal, put together by the key allies who won the war.

But subsequent cooperation in this field of international law was virtually frozen for 50 years until the end of the cold war. And then the world’s attention was seized by two other bloody conflicts – the ethnic cleansing of former Yugoslavia and the genocide in Rwanda.

History repeating itself
“The crimes committed in Yugoslavia and the genocide in Rwanda were so horrible that there was an argument to say: ‘We must do something’. I think the feeling that you should make the individuals responsible for those crimes was very clear in the minds of the people,” says international legal expert Adriaan Bos.

The international community reacted by creating two new ad hoc tribunals. Their establishment fuelled a desire for a permanent court which would be ready to prosecute cases as soon as a situation arose.

In 1994, under the auspices of the United Nations, a global discussion began on how to best do this. States with very different and complex systems of criminal law were brought together to agree on a new statute which combines elements from a variety of legal traditions.

Adriaan Bos oversaw the talks:

“My role was to chair the meetings and to establish working groups on certain issues. I tried to keep the discussions as concrete as possible, avoiding politics altogether and pinpointing only the substantive measures and that succeeded quite well”.

Success story
To say it succeeded quite well is an understatement. Within only four years, agreement was reached on the Rome Statute, which is the treaty on which the International Criminal Court is based. In 2002, the court was officially established in the Dutch city of The Hague.

Canadian Justice Philippe Kirsch was selected to be the first president of the court. “The court deals essentially with the major crimes: genocide, crimes against humanity, war crimes and in the future aggression when it is defined.

There are three ways in which cases can be referred to the court,” says Mr Kirsch.

“One is a referral made by a state. The second is by the Security Council. The Security Council can refer a situation to the court, even of a situation which does not involve a state party. The third possibility is for the prosecutor himself to analyse a situation and determine that crimes have been committed and therefore the court should be seized of the matter. In a case like that the prosecutor cannot act on his own, he has to go to a pre-trial chamber to obtain authorisation.”

The ability of this court to prosecute states that are not party to the treaty has proven to be very controversial. It is the main reason why the United States has refused to sign up to this court.

But despite the fact that some of the world’s largest nations have not signed up, the ICC is up and running and currently has five situations in its docket. Probably the best-known case before the court is the recent referral by the UN Security Council of the situation in the Sudanese region of Darfur. As well, the governments of Uganda, the Democratic Republic of Congo and the Central African Republic have all referred situations to the court. Cote d’Ivoire has also accepted the ICC jurisdiction for specific crimes.

“The first two investigations of this court present really the most serious situations on the planet today in terms of our area of jurisdiction,” says Senior Trial Attorney Christine Chung.

“One is an investigation into a situation in the Democratic republic of Congo which is a place where the most people have died since any conflict since world war two. I’m working on a case which dealing with a conflict in northern Uganda which has gone on for 18 years. The UN estimates that as many as 1.6 million people have been displaced as a result of this conflict. The allegations are that children are routinely recruited to be soldiers by a group called the Lord’s Resistance Army, so these are exactly the types of crimes the court was created to address. As its first investigation, the court has taken on cases which are at the core of its mandate.”

No easy cases
The cases are not easy ones, but as Adriaan Bos points out, “there are no easy cases before a court like this.” By definition the crimes before this court have a huge number of victims. And for the first time, this court is hoping to address some of the needs of victims.

“In the past, the victims were essentially treated like witnesses to support the arguments of the prosecution or the defence,” says ICC President Kirsch.

“First of all, the victims participate in proceedings at every stage if they want to. There is special attention being paid to children and women victims of sexual crimes. There is also a system of guidance for physical protection and there is a system of reparations. Reparation of course can never be complete for crimes like that, but the possibility of financial reparation at least exists in the form of assets that would have to the commission of the crime, or through a trust fund that has been established for victims.” 

High hopes
All this has yet to be put into practice and some observers, such as Roelof Haveman of the Grotius centre for International Legal Studies, fear that victims’ hopes may be unrealistically high relative to what the court can actually accomplish.

“I’m afraid that the ICC promises too much to people,” says Mr Haveman.

“Consider Sudan, I just read an article that people in Darfur thought that (ICC involvement) would bring an end to the conflict in Darfur. But consider that the ICC will not prosecute more than five, maybe ten people, the top elite, if they can get them. That doesn’t mean that the whole conflict stops. Although the ICC has a huge victim support arm, there are too many victims to support in Sudan. So the court will have to manage expectations. They have to let people know they should not expect too much. It is just there to prosecute those people who would never otherwise be prosecuted.” 

And that point alone represents a huge leap forward for International Criminal Law. Despite his critique of the court, Roelof Haveman believes the ICC has produced one powerful result.

“I’m convinced that people (in war zones) now realise that though crimes against humanity and war crimes are part of their lives, they are not a part of their lives they have to accept. It’s not normal, and now they have an instrument to do something about it.”

Prosecuting the most serious crimes
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