Seeking justice for acts of genocide, war crimes and crimes against humanity is necessary but fraught with controversy. The Nuremberg Trials, a series of military tribunals post World War II, showed that the conflicting approaches taken by different judicial systems can make it difficult to fairly prosecute, defend and sentence war criminals, but also made the need for a permanent international court clear. Gabrielle Kirk McDonald, former president of the International Criminal Tribunal for the Former Yugoslavia, pointed out that it’s “easier to go to prison for killing one man than for killing 100,000.” With the institution of the International Criminal Court (ICC), there is hope that we can finally prosecute the perpetrators of these monstrous crimes.
The creation of the ICC spans more than a century. Gustave Moynier, the Swiss Jurist who co-founded the International Committee for the Red Cross, first planted the seed for an ICC in 1872 with his proposal to establish a permanent court to try the crimes of the Franco-Prussian War.
Then, in 1919, the Treaty of Versailles drafters identified a similar need for an international court as they began trials against the Kaiser and German war criminals of World War I. From then on, the ICC faced a series of starts and fits before its establishment in 1998.
The ICC can only try crimes related to genocide, war crimes and crimes against humanity that were perpetrated after July 1, 2002. The crimes themselves must meet the definition of a crime against humanity as laid out by the Rome Statute and the Elements of Crime. Parties directly responsible for these crimes as well as those who aided and abetted them fall under the jurisdiction of the ICC. The ICC does not have universal jurisdiction, meaning:
- The accused is part of a State that has accepted the jurisdiction of the Court.
- The crime took place in a State that has accepted jurisdiction of the Court.
- The United Nations Security Council referred the case to the Court regardless of whether the accused or the location falls under a State that has accepted jurisdiction of the Court.
- The Presidency is composed of three judges, president, vice president and second vice president. They are elected to the position by fellow Judges of the Court for a three year renewable term. The Presidency’s main function is to oversee administration for the Court, including assigning cases to Chambers, reviewing decisions of the Registrar, promote public awareness, and maintain relations with the States.
- The Judicial Division is made up of 18 judges who are divided into three groups: the Pre-Trial Division, the Trial Division and the Appeals Division. These judges are selected and assigned to Divisions based on their experience and knowledge of criminal and international law. Judges in the Divisions serve a three year term that may be extended if they are in the midst of a trial that exceeds their term. Every year, each set of judges selects a President to oversee administration for that Division.
- The Office of the Prosecutor receives, examines and investigates case referrals and substantiated information on crimes. It is also responsible for conducting prosecutions before the Court. The Office of the Prosecutor is made up of three Divisions: the Prosecutions Division, Investigations Division, and the Jurisdiction, Complementarity and Cooperation Division.
- The Registry provides judicial and administrative support to the Court, with specific responsibilities in defense, victims and witnesses, outreach and detention. This organ of the Court is headed by the Registrar, an elected official who serves a five-year term.
- Other Offices, such as the Office of Public Counsel for Victims and the Office of Public Counsel for Defence, fall under the Registry but are otherwise independent.
Ultimately a court of last resort, the ICC tries cases only if there is no functioning judicial system within the State or proceedings would be intended to shield someone from prosecution.
- During the Pre-Trial Stage, the Pre-Trial Chamber is responsible for authorizing the Prosecutor to investigate a case, issuing warrants and summons, authorizing victim participation in proceedings, and confirmation of charges. Once charges against the accused have been confirmed, the case moves to trial.
- The Trial Stage resembles a trial in the United States judicial system, but, unlike a typical court, there is no jury. Judges in the Trial Chamber determine a person’s guilt or innocence based on the evidence presented by the Prosecutor and the Defence. If a person is found guilty, the Trial Chamber decides the proper sentence with exception to the death penalty.
- Appeals may be made by the convicted person or the Prosecutor at many points during the pretrial and trial stage, including the conviction and sentencing.
The Road Ahead for the ICC
There is no question that the global community needs a court of last resort so that the world’s worst human rights offenders are brought to justice. But with an annual budget of $140 million and a staff of 766, the ICC has faced criticism that it requires too many resources to function properly. Having spent almost a decade before making its first conviction, the world is watching as the ICC struggles to earn the public’s trust. With little support from the world’s most influential countries – the United States, Russia and China – there is a long road ahead toward a solid reputation, but for now, the ICC remains the only permanent international court.