The History and Function of International Criminal Courts

The Arc of Justice: The History and Function of International Criminal Courts

The 20th century, a period marked by unprecedented technological advancement and global interconnectedness, was also an era of unimaginable brutality. The horrors of two World Wars, and the genocides and mass atrocities that stained the decades that followed, gave birth to a once-radical idea: that individuals, no matter how powerful, could be held accountable for the most heinous of crimes under international law. This is the story of the international criminal courts, a chronicle of the global community's halting, yet persistent, effort to forge a system of justice where there once was only impunity.

From Versailles to Nuremberg: The Genesis of International Justice

The seeds of international criminal justice were sown in the aftermath of World War I. The Treaty of Versailles in 1919 included provisions to prosecute German Emperor Wilhelm II for "a supreme offence against international morality and the sanctity of treaties," and other German officials for war crimes. While these trials ultimately failed to materialize in any meaningful way, with Wilhelm II finding asylum in the Netherlands and the German government largely unwilling to prosecute its own, the very notion that political and military leaders could be subject to international legal scrutiny was a significant departure from the long-held doctrine of state sovereignty.

It was the cataclysm of World War II, however, that provided the fertile ground for this idea to take root. The systematic extermination of six million Jews in the Holocaust, alongside the widespread persecution and murder of millions of other civilians and prisoners of war, demanded a response beyond traditional warfare. As the Allied powers neared victory, they grappled with how to address the immense scale of Nazi atrocities. While some, like British Prime Minister Winston Churchill, initially favored summary executions of high-ranking Nazi officials, the United States, in particular, advocated for a legal process. This led to the signing of the London Agreement in August 1945 by the four major Allied powers—the United States, the Soviet Union, the United Kingdom, and France—which established the International Military Tribunal (IMT) in Nuremberg, Germany.

The Nuremberg Trials, which began in November 1945, were unprecedented. For the first time in history, an international tribunal was convened to prosecute the leaders of a sovereign state for crimes committed during wartime. The 22 defendants, including prominent figures like Hermann Göring, Rudolf Hess, and Joachim von Ribbentrop, faced a four-count indictment: conspiracy to commit crimes against peace, war crimes, and crimes against humanity; crimes against peace; war crimes; and crimes against humanity.

The legal framework for the trials, outlined in the Nuremberg Charter, was groundbreaking. It defined "crimes against humanity" for the first time in an international instrument, encompassing acts like murder, extermination, enslavement, and deportation committed against any civilian population. The Charter also established the principle of individual criminal responsibility, famously articulated by the chief American prosecutor, Robert H. Jackson, who declared that "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." This principle pierced the veil of state sovereignty, making it clear that individuals could not hide behind their official positions to escape accountability.

The trial itself was a monumental undertaking. The prosecution presented a mountain of evidence, including captured German documents and films that chillingly detailed the Nazi regime's crimes. The defendants were afforded the right to counsel and to present evidence in their defense. In October 1946, the tribunal delivered its verdict, convicting 19 of the defendants and acquitting three. Twelve were sentenced to death, while others received lengthy prison sentences.

The Nuremberg Trials were not without their critics. Some argued that it was a form of "victor's justice," where the victors of a war prosecuted the vanquished. This criticism was fueled by the fact that the tribunal was composed entirely of judges from the Allied nations. Others questioned the legal basis for prosecuting crimes that were not explicitly codified as international offenses before they were committed. Despite these criticisms, the Nuremberg Trials left an indelible mark on the development of international law. They established fundamental principles that would serve as the bedrock for future international criminal courts. The trials also created a crucial historical record of the Holocaust and other Nazi atrocities, combating denial and ensuring that the horrors of that era would not be forgotten.

In the Far East, a similar process unfolded. In January 1946, General Douglas MacArthur, the Supreme Commander for the Allied Powers in occupied Japan, established the International Military Tribunal for the Far East (IMTFE) in Tokyo. The Tokyo Tribunal was tasked with prosecuting high-ranking Japanese political and military leaders for war crimes, crimes against peace, and crimes against humanity. The trial, which lasted from May 1946 to November 1948, saw 28 defendants, including former prime ministers and generals, face justice. All the remaining defendants were found guilty and sentenced to punishments ranging from death to seven years' imprisonment.

Like its counterpart in Nuremberg, the Tokyo Tribunal faced accusations of victor's justice and cultural bias. The decision not to prosecute Emperor Hirohito, who retained his throne, remains a point of contention among historians. Nevertheless, the Tokyo Trials, along with the Nuremberg Trials, solidified the principle of individual accountability for international crimes and contributed significantly to the growing body of international criminal law.

The Ad Hoc Tribunals: A Resurgence of International Justice

For nearly half a century after Nuremberg and Tokyo, the momentum for international criminal justice stalled. The Cold War created a geopolitical landscape where the cooperation necessary to establish further international tribunals was impossible. The abject failure of national courts to hold perpetrators of atrocities accountable during this period became a compelling argument for a more robust international system.

The end of the Cold War and the eruption of brutal conflicts in the former Yugoslavia and Rwanda in the early 1990s brought the issue of international justice back to the forefront of the global agenda. The horrific images of ethnic cleansing in Bosnia and the systematic slaughter of an estimated 800,000 Tutsis and moderate Hutus in Rwanda shocked the world's conscience and spurred the United Nations to act.

In response to the widespread atrocities in the Balkans, the UN Security Council, acting under its Chapter VII powers, established the International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague in May 1993. The ICTY was the first international war crimes tribunal since Nuremberg and Tokyo and was given jurisdiction over grave breaches of the Geneva Conventions, violations of the laws or customs of war, genocide, and crimes against humanity committed in the territory of the former Yugoslavia since 1991.

The ICTY's mandate was ambitious: to bring to justice those most responsible for the atrocities, to provide a measure of justice for the victims, and to contribute to the restoration and maintenance of peace in the region. Over its 24-year mandate, the tribunal indicted 161 individuals, including high-ranking political and military leaders like former Serbian President Slobodan Milošević, Bosnian Serb leader Radovan Karadžić, and General Ratko Mladić.

The ICTY's work had a profound impact on the development of international criminal law. Its jurisprudence significantly advanced the understanding and prosecution of genocide, crimes against humanity, and war crimes. In a landmark decision, the tribunal ruled that the mass murder of over 7,000 Bosnian Muslim men and boys in Srebrenica in 1995 constituted genocide. The ICTY also made significant strides in prosecuting sexual violence as a weapon of war, recognizing rape as a form of torture and a crime against humanity. The tribunal's proceedings also provided a platform for thousands of victims and witnesses to share their stories, creating an invaluable historical record and combating the denial of the crimes committed.

However, the ICTY also faced significant challenges. Its proceedings were often lengthy and expensive, and the tribunal was criticized for its perceived bias against certain ethnic groups, particularly Serbs. The fact that the tribunal was located in The Hague, far from the communities most affected by the crimes, also created a sense of detachment for many victims.

In November 1994, the UN Security Council established the International Criminal Tribunal for Rwanda (ICTR) in Arusha, Tanzania, to prosecute those responsible for the 1994 Rwandan genocide. The ICTR was mandated to prosecute genocide, crimes against humanity, and violations of Common Article 3 of the Geneva Conventions. Over its two decades of operation, the ICTR indicted 93 individuals, including high-ranking government officials, military leaders, and media personalities who had incited the genocide.

The ICTR achieved several historic milestones. In 1998, it became the first international tribunal to deliver a verdict on the crime of genocide, convicting Jean-Paul Akayesu, the former mayor of Taba commune. The Akayesu judgment was also groundbreaking in its recognition of rape as an act of genocide. In another landmark case, the ICTR convicted Jean Kambanda, the former Prime Minister of the interim government during the genocide, making him the only head of government to be convicted of genocide by an international tribunal. The tribunal also held media leaders accountable for their role in inciting hatred and violence, a crucial precedent in an age of mass communication.

Like the ICTY, the ICTR faced its share of criticisms, including its slow pace and high cost. However, its contributions to international criminal justice are undeniable. The tribunal's jurisprudence on genocide and the role of individuals in orchestrating mass atrocities has had a lasting impact on international law.

The International Criminal Court: A Permanent Forum for Justice

The ad hoc tribunals for the former Yugoslavia and Rwanda, while groundbreaking, were temporary and limited in their jurisdiction. They highlighted the need for a permanent, independent international criminal court that could address future atrocities wherever they might occur. This long-held dream of a permanent international criminal court finally came to fruition on July 17, 1998, when 120 states adopted the Rome Statute, the treaty that established the International Criminal Court (ICC). The Rome Statute entered into force on July 1, 2002, after being ratified by 60 countries, and the ICC was formally established in The Hague, Netherlands.

The ICC is the world's first and only permanent international court with jurisdiction to prosecute individuals for the international crimes of genocide, crimes against humanity, war crimes, and the crime of aggression. Unlike the ad hoc tribunals, the ICC's jurisdiction is not limited to a specific conflict or region. However, its jurisdiction is not universal. The court can only investigate and prosecute crimes committed within the territory of a state that is a party to the Rome Statute, or by a national of a state party. It can also exercise jurisdiction if a situation is referred to it by the UN Security Council.

A key feature of the ICC is the principle of complementarity. The court is a "court of last resort" and can only intervene when national courts are unwilling or unable to genuinely investigate and prosecute the perpetrators of international crimes. This principle is intended to respect the primary responsibility of states to prosecute their own citizens.

The structure of the ICC is composed of four main organs: the Presidency, the Judicial Divisions, the Office of the Prosecutor, and the Registry. The Presidency is responsible for the overall administration of the court. The Judicial Divisions are composed of 18 judges, elected by the Assembly of States Parties, who are assigned to the Pre-Trial, Trial, and Appeals Chambers. The Office of the Prosecutor (OTP) is an independent organ of the court responsible for receiving and analyzing information on alleged crimes, conducting investigations, and prosecuting cases. The Registry is responsible for the non-judicial aspects of the court's administration, including security, interpretation, and victim and witness support.

The ICC's first trial began in 2009, in the case of Thomas Lubanga Dyilo, a Congolese warlord accused of enlisting and conscripting child soldiers. In 2012, the court delivered its first verdict, finding Lubanga guilty and sentencing him to 14 years in prison. Since then, the ICC has opened investigations in numerous countries, including Uganda, the Central African Republic, Darfur (Sudan), the Democratic Republic of Congo, Kenya, Libya, Côte d'Ivoire, Mali, Georgia, Burundi, Palestine, and Ukraine. As of 2022, the court had brought 31 cases, some involving multiple suspects, and had issued 37 arrest warrants.

Notable Cases Before the ICC

The ICC has handled a number of high-profile cases that have drawn international attention and highlighted both the potential and the challenges of the court. Some of the most notable cases include:

The Prosecutor v. Thomas Lubanga Dyilo: This was the ICC's first case and resulted in the court's first conviction. The case established important jurisprudence on the war crime of using child soldiers.
The Prosecutor v. Omar al-Bashir: In 2009, the ICC issued an arrest warrant for then-Sudanese President Omar al-Bashir for war crimes and crimes against humanity committed in Darfur. This was the first time the ICC had issued an arrest warrant for a sitting head of state. However, Bashir has yet to be arrested and handed over to the court, highlighting the ICC's reliance on state cooperation for enforcement.
The Prosecutor v. Laurent Gbagbo: The former president of Côte d'Ivoire was the first former head of state to be tried at the ICC. He was charged with crimes against humanity committed during post-election violence in 2010 and 2011. Gbagbo was acquitted in 2019, a decision that drew criticism from victims' groups but was seen by others as a testament to the court's impartiality.
The Prosecutor v. Jean-Pierre Bemba Gombo: The former vice-president of the Democratic Republic of Congo was convicted of war crimes and crimes against humanity in 2016 for atrocities committed by his troops in the Central African Republic. However, his conviction was overturned on appeal in 2018.
The Situation in Ukraine: Following Russia's full-scale invasion of Ukraine in 2022, the ICC prosecutor opened an investigation into alleged war crimes and crimes against humanity. In March 2023, the court issued arrest warrants for Russian President Vladimir Putin and Maria Lvova-Belova, the Russian Commissioner for Children's Rights, for the alleged war crime of unlawful deportation and transfer of children from occupied areas of Ukraine to the Russian Federation. This marked the first time the ICC has issued an arrest warrant for the leader of a permanent member of the UN Security Council.

The Rights of the Accused and the Role of the Defense

A fundamental principle of international criminal justice is the right of the accused to a fair trial. The statutes of the ICTY, ICTR, and the ICC all contain detailed provisions outlining the rights of the accused, which are largely based on international human rights law. These rights include the presumption of innocence, the right to be informed of the charges, the right to have adequate time and facilities to prepare a defense, the right to legal counsel (including the right to have legal assistance provided free of charge if the accused cannot afford it), the right to examine witnesses against them and to call their own witnesses, and the right to remain silent.

The role of the defense in international criminal proceedings is crucial not only for protecting the rights of the individual accused but also for ensuring the legitimacy of the entire process. A robust defense helps to ensure that the prosecution's case is thoroughly tested and that the judges have all the relevant information before them when making their decision.

Defense counsel in international criminal courts face unique challenges. They often have to work in a foreign legal system, with judges from different legal traditions, and with evidence and witnesses from conflict zones. They may also face public hostility and be seen as defending individuals accused of monstrous crimes. Despite these challenges, defense lawyers play a vital role in upholding the principles of justice and ensuring that the international criminal justice system operates fairly and effectively.

The Voices of Victims and Witnesses

Central to the mission of international criminal courts is the desire to provide a measure of justice for the victims of the crimes they prosecute. While the primary focus of the trials is on the guilt or innocence of the accused, the voices of victims and witnesses are an essential part of the process. Their testimony not only provides crucial evidence for the prosecution but also helps to create a historical record of the atrocities and to ensure that the human cost of these crimes is not forgotten.

The ICTY, ICTR, and ICC have all developed extensive systems for victim and witness protection and support. These measures include providing psychological and medical support, protecting the identity of witnesses who may be at risk, and, in some cases, relocating witnesses and their families to safe locations. The tribunals have also made efforts to make the courtroom experience less intimidating for witnesses, particularly for victims of sexual violence and child soldiers.

For many victims, the opportunity to testify in an international court can be a powerful and cathartic experience. It can be a chance to have their suffering acknowledged on a global stage and to see those responsible for their pain held accountable. However, the experience of testifying can also be traumatic, forcing victims to relive their most painful memories. A pilot study conducted by the ICTY found that while most witnesses reported positive experiences, the process of testifying was different for each individual.

Personal stories from these trials offer a glimpse into the profound human impact of these crimes. Tali Nates, the daughter of a Holocaust survivor, recalls the "silence" that surrounded her father's trauma, a silence that was "louder than any words could have been." Niklas Frank, the son of Hans Frank, the "Butcher of Poland" who was executed after the Nuremberg trials, remembers visiting his father in prison and the deep disturbance he felt when he saw photographs of the atrocities his father was connected to. These personal accounts serve as a powerful reminder of the human cost of the crimes that international criminal courts are designed to address.

The Challenges and Criticisms of International Criminal Justice

Despite their many achievements, international criminal courts have faced a barrage of challenges and criticisms. One of the most persistent criticisms is that of "victor's justice," a charge that was leveled against the Nuremberg and Tokyo tribunals and continues to be directed at the ICC. The fact that the ICC's investigations have so far focused heavily on Africa has led to accusations of bias and a "neo-colonial" approach to justice. This has led to some African countries threatening to withdraw from the court.

Another major challenge is the ICC's reliance on state cooperation. The court has no police force of its own and must rely on states to arrest and surrender suspects, to provide evidence, and to enforce sentences. When states are unwilling to cooperate, as has been the case with the arrest warrant for Omar al-Bashir, the court is rendered powerless.

The ICC has also been criticized for its slow pace, high cost, and limited success rate. After nearly two decades and billions of euros spent, the court has only secured a handful of convictions. The length and complexity of international criminal trials, which often involve vast amounts of evidence and witnesses from multiple countries, contribute to this slow pace.

Furthermore, the legitimacy of the ICC is challenged by the fact that some of the world's most powerful countries, including the United States, China, and Russia, are not state parties to the Rome Statute. This not only limits the court's jurisdiction but also undermines its claim to be a truly universal institution.

The Future of International Criminal Justice

The landscape of international criminal justice is constantly evolving. As the world faces new and emerging threats, from cybercrime and environmental destruction to transnational terrorism, the role and function of international criminal courts will continue to be debated and redefined.

One of the key questions for the future is how to bridge the "impunity gap" for crimes committed in countries that are not party to the Rome Statute. The principle of "universal jurisdiction," which allows national courts to prosecute certain international crimes regardless of where they were committed or the nationality of the perpetrator, offers one potential avenue for accountability.

There is also a growing movement to hold corporate actors accountable for their role in international crimes. While the ICC's jurisdiction is limited to individuals, there have been calls to amend the Rome Statute to allow for the prosecution of corporations. In recent years, national courts in some European countries have begun to investigate and prosecute corporate executives for their alleged complicity in war crimes and human rights abuses.

The future of international criminal justice will also be shaped by the ongoing debate between universalism and localization. While international courts play a crucial role, there is a growing recognition of the importance of national and regional justice mechanisms. Hybrid courts, which combine elements of domestic and international law and personnel, may offer a way to bridge the gap between international justice and the communities most affected by the crimes.

Ultimately, the future of international criminal justice will depend on the political will of the international community. The establishment of the Nuremberg and Tokyo tribunals, the ad hoc tribunals for the former Yugoslavia and Rwanda, and the International Criminal Court were all testament to the fact that when the international community is united, it can take meaningful steps to combat impunity. As the world confronts new challenges, the lessons learned from the history of international criminal courts will be more important than ever. The long and often arduous journey towards a more just world is far from over, but the arc of the moral universe, as Martin Luther King Jr. so eloquently stated, continues to bend towards justice. The ongoing work of international criminal courts, despite their imperfections, is a vital part of that journey.