The term international courts covers many institutions with different structures and functions. Common among them is that they adjudicate disputes based upon principles of law rather than the wealth or political power of participants and thus are judicial bodies. Another commonality is that they have been created by agreements between states and are therefore international. Most international courts decide disputes occurring between states rather than individuals. For example, the International Court of Justice is the principal judicial organ of the United Nations. Its main function is to resolve legal disputes among members of the United Nations. Individuals cannot be parties to legal proceedings at the International Court of Justice.
One of the few bodies of international law that directly affects individuals is international criminal law. Certain acts by individuals, such as genocide, war crimes, and crimes against humanity, are violations of international criminal law and can result in criminal sanctions such as incarceration. While violations of international criminal law can be prosecuted by national legal systems, a number of international courts have been created to prosecute such violations, particularly in situations where individual states are unable to carry out prosecutions on their own. These courts have generally been referred to as international criminal courts (ICCs) with one, the ICC, recognized as the most important. This article traces the development of ICCs with a particular focus on the ICC.
The Development of ICCs
ICCs developed in tandem with international criminal law. While some aspects of international criminal law had been developed prior to World War II, the horrors of that conflict, particularly the Holocaust, spurred a rapid expansion of the law. It also gave rise to the first ICC—the International Military Tribunal at Nuremberg—created by the Allies after World War II to prosecute senior Nazi leaders.
Nearly 50 years later, the United Nation Security Council created two more ICCs: the 1993 International Criminal Tribunal for the former Yugoslavia in response to the widespread mistreatment of civilians during the civil war that took place following the disintegration of Yugoslavia and the 1994 International Criminal Tribunal for Rwanda in response to the genocide there. Both courts were modeled on the International Military Tribunal and prosecuted individuals for violations of international criminal law.
The International Military Tribunal, International Criminal Tribunal for the former Yugoslavia, and International Criminal Tribunal for Rwanda are generally viewed as having been successful, though limited because they were impermanent responses to particular atrocities. With a permanent international court, atrocities could be addressed no matter where they occurred without needing to create a new institution in response to every crisis. After many academics and civil society groups pressed for the creation of such a permanent court, the ICC was established.
The ICC
The ICC was created by a treaty known as the Rome Statute. It began operation in 2002 and, by 2016, included 124 states as parties to the Rome Statute and members of the ICC—roughly 65% of the countries in the world. However, a number of powerful countries, including the United States, Russia, and China, have refused to join the ICC, objecting to an international court having jurisdiction over their citizens without their consent.
The ICC, located in The Hague, the Netherlands, is a permanent international court with jurisdiction over serious violations of international criminal law, including war crimes, crimes against humanity, and genocide. However, it has a number of limitations to its authority. First, it investigates and prosecutes only individuals. The court has no authority to adjudicate the responsibility of states for the commission of international crimes. Second, its geographic jurisdiction is limited. While some supporters hoped it would have jurisdiction over crimes committed anywhere in the world, it is mostly confined to crimes committed upon the territory of its member states.
The ICC was never intended to prosecute every violation of international criminal law. Rather, it was created as a court of last resort to prosecute violations that would otherwise go unpunished. Thus, the court cannot prosecute anyone unless the national jurisdiction that would otherwise have jurisdiction over the violation is either unable or unwilling to conduct the prosecution on its own. The ICC is meant to complement, rather than replace, domestic prosecutions.
Internally, the court is composed of various organs that operate independently. The Office of the Prosecutor is responsible for investigating and prosecuting violations of international criminal law. The Judicial Division contains the judges who decide whether the individuals charged by the prosecution are guilty. The Assembly of State Parties is composed of all the states that are members of the ICC and is responsible for deciding on the budget of the court, which is then paid for by the member states. The Registry provides support services to the other organs.
The Rome Statute contains numerous due process guarantees for defendants. For example, all individuals charged by the ICC are presumed innocent, and defendants have the right to legal representation and to present witnesses and evidence to challenge the witnesses and evidence presented by the prosecution. If the accused is indigent, the court will provide funds to hire defense counsel.
In order to convict the accused person, the judges of the Trial Chamber must be convinced of the guilt of the accused beyond a reasonable doubt. There are no juries at the ICC. All decisions, including the determination of guilt, are made by judges. A convicted defendant may be fined, ordered to forfeit the proceeds of the crime, or sentenced to a maximum term of life in prison. The death penalty is not available. If convicted, the accused has a right to appeal the decision of the Trial Chamber to an Appeals Chamber.
The Future of the ICC
Much of the academic debate about the ICC has centered on whether it is successful. Detractors often point to the small number of investigations and prosecutions and ask how a court that tries so few cases could have a meaningful impact on the world. Supporters tend to focus on the fact that a majority of states have joined the ICC, which they say shows that most states support the goals of the court. Ultimately, part of the problem is that there is little agreement about what success means or how to measure it. Another problem is that the ICC has only been in operation since 2002. It may take several decades before any significant impact of the court can be seen.
References:
- Giorgetti, C. (Ed.). (2012). The rules, practice, and jurisprudence of international courts and tribunals. Leiden, the Netherlands: Martinus Nijhoff.
- Schabas, W. A. (2011). An introduction to the International Criminal Court (4th ed.). Cambridge, UK: Cambridge University Press.
- Scheffer, D. (2012). All the missing souls: A personal history of the war crimes tribunals. Princeton, NJ: Princeton University Press.