Much is ballyhooed on the international law stage with little practical effect on the day-to-day lives of citizens. Yet nation-states continue to send delegates and money to these international law-making organizations.

Except for those dealing with international trade, international law professors and international human rights activists, international law and most of its institutions are for the most part, just "sitting there", waiting for the real world to catch up to an environment where international law slowly displaces domestic law.

One of the reasons for the global hesitancy towards international law is the fear that nation's could lose the distinctive characteristics of their own domestic law; to Americans, the right to possess arms; to Canadians, a tolerance towards multiculturalism; to the Chinese, their language; etc.

Amidst the cornucopia of international law there is one institution that is both long-overdue and, hopefully, a harbinger of the future: the International Criminal Court ("ICC"; chief prosecutor Luis Moreno-Ocampo pictured).

As with all international law and its institutions, without exception, the International Criminal Court is based on a treaty.

Luis Moreno-OcampoAs of January 1, 2007, it was endorsed by 104 countries, which includes Canada, France, Spain, Mexico, Brazil, Argentina, Australia, and England, to name but a few; but not the United States, China, India or Russia. Japan joins in 2007.

In fact, the USA stood with China, Iraq, Libya, Yemen, Qatar and Israel in voting against the Rome Statute of the International Criminal Court in 1998, it being concerned that the ICC snoop around to investigate prosecutions of U.S. military personnel. This attitude has attracted sharp rebuke from the international community as it suggests a two-tiered system: one for US nationals, another for the rest of the world.

These types of growing pains, while worrisome, are typical but "necessary evils" of any permanent and effective international judicial body. While in the short term it means that the ICC lacks a significant member, it does stimulate discussion and adjustment so vital in insuring the long-term viability of the ICC. Perfection takes time.

The concept of an international criminal court was first devised in 1948 when, in the aftermath of World War II, and the Nuremberg trial of members of Germany's Nazi party, the United Nations passed a resolution stating:

"At all periods of history, genocide has inflicted great losses on humanity.... In order to liberate mankind from such an odious scourge, international co-operation is required ... the desirability and possibility of establishing an international judicial organ for the trial of persons charged with genocide".

But the problems an international criminal court purports to address have been around since times immemorial. Applying the Rome Treaty's standards against the acts of war in centuries past would raise no end of violations.

A leader of men directs his army to overwhelm another people by force, usually to seek a financial or territorial advantage. In order to encourage submission or eliminate a backlash by those defeated, the victorious leader would utilize a variety of intimidation techniques: massacre of those of different ethnicity, rape, torture, pillage or forced migration.

Just as law and justice have evolved within free and democratic societies, the post-war sequence of events that may have been accepted practice in ancient and medieval times, is no longer tolerated.

Today, this conduct has the quintessential name of war crime.

More recently, when armies that had committed war crimes were defeated, their directing minds would seek refuge within another state, thereby inaccessible to the domestic justice of either their home state or the state where the crime was committed, even if there was a willingness to prosecute.

In the decades following World War II, as Nazi atrocities particularly towards Jews, became known worldwide, so, too, was the horror universal and a popular desire to punish that type of conduct arose, which was considered an affront to standard rules of military engagement.

While international politicians toyed with the idea of an international criminal justice process, events soon added an element of urgency: the need for a concerted effort against the production and distribution of narcotics, and the brutalities which occurred in the 1993 conflict in the former Yugoslavia.

Indeed, in three cases – Nuremberg (1945-48), Yugoslavia and Rwanda – the international community simply did not wait for an ICC to get off the ground, and convened ad hoc tribunals for those specific war crimes.

A draft treaty for an ICC was developed by the United Nations and delegates convened at Rome in 1998 to consider and debate it.

The then-Secretary General of the United Nations, Kofi Annan encouraged the plenary session with these inspiring words:

"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 realization. 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."

Persons purporting to act on behalf of their nation-state, were perpetrating horrendous crimes without punishment. In Cambodia, circa 1970, it is estimated that 2 million people were killed by the Khmer Rouge. Idi Amin, while ruling Uganda from 1971 to 1979, deports 40,00 people and ordering the killing of 300,000 Ugandans only because they were members of the rival tribe.

And yet, within the borders of nation-states of the United Nations, individuals were being aggressively prosecuted and punished for murders, leaving one pundit to say "a person stands a better chance of being tried and judge for killing one human being than for killing 100,000".

ICC logo The Rome Treaty (called a "Statute") contains within its preamble (extract only), the following statements of what the ICC (logo pictured) seeks to address:

"Conscious that all peoples are united by common bonds, their cultures pieced together in a shared heritage, and concerned that this delicate mosaic may be shattered at any time,

"Mindful that during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity,

"Affirming that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation,

"Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes,

"Reaffirming the Purposes and Principles of the Charter of the United Nations, and in particular that all States shall refrain from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations,

"Determined to these ends and for the sake of present and future generations, to establish an independent permanent International Criminal Court in relationship with the United Nations system, with jurisdiction over the most serious crimes of concern to the international community as a whole."

The ICC, based in The Hague, Netherlands, has jurisdiction in instances of genocide, crimes against humanity, war crimes (and, eventually, the crime of aggression), all singularly defined.

The model for the ICC is much like that of contemporary democratic societies, were complaints are received and investigated by an independent prosecutor who, further to that investigation, decides whether or formally summon the alleged perpetrator before the ICC. Few perpetrators of war crimes would voluntarily appear before the ICC and for this reason, this step is often proceeded with by way of an arrest warrant.

The ICC receives complaints from all over; in regards to alleged international crimes committed by nations or nationals of over 153 countries or political entities around the world, including Germany, USA or France. The vast majority (80%) are rejected offhand as outside the court's jurisdiction.

Prosecutions are ongoing in regards to alleged offences as set out in the Rome Treaty for nationals of Uganda, the Democratic Republic of the Congo, the Central African Republic and Sudan (aka Dafur).

The case against the four Ugandans include allegations of crimes against humanity and war crimes, such as rape, inducing rape, murder, enslavement, sexual enslavement, forced enlisting of children, attacking civilian populations, cruel treatment, pillaging and inhumane acts.

The case regarding Sudan alleges that Ahmad Muhammad Harun, an acting Minister of the Sudanese government, and Ali Kushayb, a leader of the Militia (Janjaweed), jointly committed war crimes and crimes against humanity in Darfur.

The situation regarding the Central African Republic involves several years of jurisdiction wrangling within CAR, culminating in a decision of the highest CAR Court giving exclusive jurisdiction to the ICC in regards to the "grave crimes" allegedly occurring in 2002 and 2003, including some 6,000 rapes.

Another substantial benefit of the court is its adoption of the common-law concept of a presumption of innocence until proven guilty beyond a reasonable doubt, as set out at article 66 of the Treaty.

And like its sister court, the International Court of Justice, it suffers from too many judges, not enough cases. The ICC has 16 judges and only four cases on its docket (as of August 2007)!

References and Further Reading:

  • The International Criminal Court website at icc-cpi.int
  • ICC, "the states parties to the Rome statute", at icc-cpi.int/statesparties.html
  • The Rome Statute of the International Criminal Court at icc-cpi.int/library/about/officialjournal/Rome_Statute_English.pdf or un.org/law/icc/statute/99_corr/2.htm
  • Human Rights Watch at hrw.org
  • The coalition for the international criminal Court, at iccnow.org