‘Neither a free State nor a free world can long endure without adequate safeguards for the rule of law’
- A.N.R. Robinson, Prime Minister of Trinidad and Tobago, October 1990
Last week, we looked at the International Court of Justice, which works on disputes between countries. Any country can say ‘we think what they are doing over there is illegal’, and take the case to the ICJ. There are different treaties and international laws to protect us against harms by individual people, such as a specific political or military leader who has acted illegally, and disputes around these go to the International Criminal Court.
So this week, I’m going to tell you about the International Criminal Court (ICC), which prosecutes individuals who might be responsible for international crimes like genocide or war crimes, and other crimes which are specified in treaties, such as terrorism, drug trafficking, fraud and more. These kinds of crimes have historically been difficult to tackle, because as we have seen, every nation does have a sovereign right to conduct their own business to profit themselves, to protect their own individual citizens (even if those citizens aren’t at home), and to deal with crime within their own borders as they see fit.
Jurisdiction, (the appropriate power to make legal decisions), usually depends on where the crime took place, as well as where the alleged victims and offenders came from and where the offender happened to be hiding out. Historically, even where crimes did cross borders and include people from different nations, they had to be prosecuted somewhere, under the legal system of one or another nation. There was also quite a short list of specific crimes which could be prosecuted in this way, such as piracy and the trafficking of enslaved people. So prosecuting an individual person for international crimes was often impossible. This meant that throughout history, very powerful people often got away with murder, literally. But that changed after our disastrous world wars.
Back in 1945, when ideas about international law were developing and the ICJ was being established, there were many discussions around individual responsibility and how we might overcome some of the limits of jurisdiction. Nazi leaders who were felt to be personally responsible for the decisions and actions which killed millions of people were individually prosecuted at the Nuremberg Tribunal1.
‘Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced’.
Nuremberg International Military Tribunal Judgement,1946
This was the first time any individual, even the very powerful, could be forced to attend an international court and be as accountable as the people following their orders. Several international treaties were founded around that time, when there was enormous political will among allied nations to try to ensure that if anyone ever committed these types of crimes again, the accountability and processes for finding out what happened and who should bear the responsibility would be clear.
An international criminal court, a permanent home for the prosecution of international crimes with individual responsibility, was discussed during those exciting times, but nations and leaders hesitated – why would people in positions of power place themselves at the mercy of an institution which could make them accountable for the gravest crimes? No nation on Earth is blameless. No individual person is blameless. Leaders sometimes make unpopular decisions, or decisions that turn out to be wrong. And as we have seen, those in power sometimes want to maintain the status quo and stay powerful forever, unchallenged. Accountability is not something these individuals would welcome. So decades passed, without much progress.
In 1986, Arthur N. R. Robinson became the Prime Minister of a twin-island Caribbean nation off the coast of Venezuela, Trinidad and Tobago. This is the southernmost island in the Caribbean, in sight of the shores of Venezuela, and rich in oil, gas and minerals. The illegal trade in drugs and enslaved people across borders up through South America and the Caribbean, and arms back down from the United States had been an issue for many years, with local justice systems struggling due to all of the different sovereign territories involved and corrupt officials taking advantage of cross border policing difficulties.
Robinson had promised to tackle corruption, and drugs and arms trafficking, which were driving localised crime, gang violence, and social inequalities within the otherwise rich nation. He felt that only with international cooperation within a stable framework could these cross-border issues be resolved. In 1989, Robinson asked Benjamin Ferencz and Robert Kurt Woetzel to assist him to draft a proposal for the creation of the long-discussed International Criminal Court. The original purpose of the proposed court, in the minds of Robinson and his colleagues, was to tackle illegal trade, particularly in drugs and weapons.
In July 1990, a group of radical militants attacked Robinson and his cabinet office, as well as the national media, holding Robinson hostage and demanding that he tell the army to stand down. Instead, he ordered the military of Trinidad and Tobago to defend the nation and democracy against the heavily armed group, who shot him (with illegally trafficked guns) and beat him in retaliation. The militants were forced to surrender, but Robinson’s confidence and local popularity suffered. The idea for an international court was delayed, but Robinson never gave up hope, and in 1998, the Rome Statute, the treaty which established the International Criminal Court, was adopted. The Rome Statute went above and beyond Robinson’s original purpose, to include grave crimes against humanity and more.
‘Neither a free State nor a free world can long endure without adequate safeguards for the rule of law’
A.N.R. Robinson, October 1990
The Rome Statute laid out how and when an international criminal court could act, and listed specific crimes which would be under its jurisdiction. At around the same time as the Statute was being debated, after mass killings and other atrocities in Central Europe and the Balkans, and in Rwanda, there were two Tribunals which were established by the UN Security Council which would explore the practicalities of how individual responsibility for international crimes might be tackled: The International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). Both of these concerned atrocities committed against groups of people in those nations, with UN Tribunals set up in the Hague to prosecute those responsible. We will have to discuss the events that took place, and the alternative justice processes, such as the Gacaca Courts, another time, but those two Tribunals further set the stage for what process and accountability for grave crimes against humanity might look like. The success of these Tribunals also made the need for a permanent Court clear.
The Rome Statute set the stage for the International Criminal Court which was established in 2002, with its first ever verdict in 2012. It communicates with the communities affected by crimes to ensure that their voices are heard. Victims and witnesses are protected. Those who are accused of crimes are also protected, and are given fair hearings, which ensures the truth about situations in countries is fully heard. Cases take years to process, but contribute to societal healing as well as justice. There is also a Trust Fund for Victims, which A. N. R. Robinson championed as a director from 2006 onwards. There have been seven convictions in the ICC so far, which might not seem like much in more than ten years, but bear in mind that these are for the worst examples of crimes against humanity, including murder, enslavement and conscription of children into war, and the court process is cautious, including many voices and sources of evidence.
Any individual or group can submit a case against any individual, to the International Criminal Court’s prosecutor’s office. You don’t need to be a direct witness, or even a victim—you can submit on the behalf of others, even if they have died. Your country does not have to be a member of the ICC or party to any relevant UN Treaties or Statutes.
Look up the list of international crimes, and try to decide which ones have been broken. Think about what evidence you have. Be as specific as possible. Provide as much information as you possibly can, because there needs to be a clear, comprehensive case for the Court to consider it.
Sometimes, it seems that international institutions are a source of perpetuated inequality and colonial power. The ICC has been criticised for targeting less powerful nations, and leaving criminal individuals from the ‘global north’ like China, Russia and the USA to continue illegal activities unchallenged. This is slowly changing, with Vladimir Putin now on the Court’s hit list, but those officially accused of crimes are still overwhelmingly Black, Arab and from the global south. Like the ICJ, the Court has no policing body of its own to track down and arrest criminals or force suspects to attend trials, instead relying on nations to bring individuals to justice. It remains a voluntary institution, funded by member states who believe in and support its ideals.
It’s good to bear in mind that the ICC has, at its heart, a goal of ensuring justice for all, equally. It aims to protect individuals and communities from international criminals, whether those are rulers of countries or the leaders of criminal organisations. It aims to reduce corruption, deception and harm by targeting the people who create the conditions for these things. That’s what it was conceived for. Power inequality is a problem, but it’s not insurmountable, and slow movements towards improving the situation are ongoing.
This is part of a series aimed at making international law accessible and engaging for everyone. For the full series, see here, including an introduction What is International Law, Anyway? and why we should care, with How International Law Impacts Our Everyday Lives.
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