Development of International Criminal Justice

• Some major milestones: • Nuremberg Tribunal (1945-46) • Tokyo Tribunal (1946-48) • Genocide Convention (1948) • Geneva Conventions of 1949 • International Criminal Tribunal for the Former Yugoslavia (1993- present) • International Criminal Tribunal for Rwanda (1995-present) • International Criminal Court (2002-present) From the Nuremberg Charter: Article 6. ……. (a) CRIMES AGAINST PEACE: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing; (b) WAR CRIMES: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity; (c) : namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated. Please note: The “war nexus,” requiring a link to war, no longer forms part of the definition of crimes against humanity. Additional principles of the Nuremberg Charter: NO IMMUNITY BASED ON OFFICIAL STATUS Article 7: The official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment. FOLLOWING ORDERS IS NOT A SHIELD FROM PROSECUTION Article 8: The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires. Criticisms made against the Nuremberg tribunal:

• Retroactive punishment • Double standard • Inadequate due process for the accused

• Was the Nuremberg trial a case of victor’s justice?

• Tokyo Tribunal (1946-48) sat in judgment of crimes committed by leaders of the Japanese wartime government. The Nuremberg Trial: the legal legacy • By a unanimous resolution of the UN General Assembly in 1946, the principles of the Nuremberg Charter and Nuremberg Judgment are recognized as constituting principles of international law. • Legal principles established by Nuremberg: – Crimes against humanity are recognized as a category of international law. – Official status provides no immunity from responsibility for war crimes, crimes against humanity, or crimes against the peace. – Individuals are not absolved of responsibility for war crimes or crimes against humanity because they acted pursuant to superior orders. The Genocide Convention of 1948 • Raphael Lemkin, tireless advocate of the Convention • Definition of genocide: killing, serious assault, starvation, forcible prevention of births, and transfer of children when “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.” • Genocide defined as a crime. • Member states undertake to – Prevent and punish genocide. – Make genocide a crime in domestic law. – Punish individuals guilty of genocide committed on the member state’s territory. The International Criminal Court • an international court set up to prosecute major human rights crimes • Its origins: – Nuremberg Tribunal (1945-46) – Tokyo Tribunal (1946-48) – International Criminal Tribunal for the Former Yugoslavia (est. 1993) – International Criminal Tribunal for Rwanda (est. 1994) Treaty text adopted on July 17, 1998, in Rome. The ICC was officially born on July 1, 2002 (after 60 countries ratified the ICC Treaty). As of today 123 countries are parties to the Rome Statute of the ICC (ICC Treaty).

Public support for the ICC Treaty in Rome, summer 1998. Crimes that fall under the jurisdiction of the ICC (art. 5) Genocide (art. 6) Crimes Against Humanity (art. 7) War Crimes (art. 8) Aggression – ICC exercises jurisdiction only after 2017, and then only on an extremely limited basis (arts. 8 bis, 15 bis, 15 ter). The Principle of Complementarity: The Court will not initiate prosecution unless the state of primary jurisdiction proves itself “unwilling or unable” to launch criminal proceedings. (art. 17) Genocide (definition directly copied from 1948 Convention)

Crimes Against Humanity 1. No war nexus: the relevant acts (murder, extermination, etc.) constitution CAH “when committed as part of a widespread or systematic attack directed against any civilian population.” 2. Sexual crimes, including , added 3. Disappearances added 4. Apartheid added War Crimes 1. Court has jurisdiction over war crimes “in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.” 2. Enumeration of the specific acts that constitute war crimes 3. Sexual crimes included 4. Jurisdiction covers internal as well as international armed conflicts Organization of the Court

• 18 judges (who arrange themselves into pre-trial, trial, and appeals chambers) • Prosecutor and staff • Assembly of States Parties

Luis Moreno Ocampo Fatou Bensouda, Prosecutor 2003-12 Prosecutor 2012-21

How is a criminal investigation begun? Three possible routes:

• At the request of a state party (art. 14) • On the Prosecutor’s own initiative (requires permission of the pre-trial judges’ chamber) (art. 15) • At the request of the Security Council of the (art. 13) Over which persons does the ICC exercise jurisdiction?

• In cases initiated by a member state or by the Prosecutor, jurisdiction is limited to citizens of member states and individuals accused of committing crimes on the territory of member states. (art. 12) • In cases referred by the Security Council, the ICC Statute places no limits on jurisdiction. • Remember the Principle of Complementarity: The Court will not initiate prosecution unless the state of primary jurisdiction proves itself “unwilling or unable” to launch criminal proceedings. (art. 17) Other legal principles observed by the ICC: • The jurisdiction of the Court is prospective only: the only prosecutable crimes are those committed after July 1, 2002 (when the Court came into being). (art. 24) • due process protections for suspects (art. 55) and the accused (art. 67) • The Court is empowered to provide compensation to victims. (art. 75) • No immunity for high-ranking officials, such as presidents, prime ministers, cabinet officials, generals, etc. (art. 27) • Military commanders are responsible for the crimes committed by their subordinates when they know, or ought to know, that such crimes are being committed, and do not take action to stop them. (art. 28) • Individuals are not exempt from criminal responsibility on the grounds that they were merely “following orders.” (art. 33) Situations under official investigation by the ICC: Uganda, Democratic Republic of Congo, Sudan (Darfur), Central African Republic (2), Kenya, Libya, Côte d’Ivoire, Mali, Georgia, Burundi

Preliminary Examinations: Afghanistan, Colombia, Gabon, Guinea, Iraq (UK), Nigeria, Palestine, Ukraine, Mavi Marmara ship

The prosecutor recently requested permission to open a formal investigation into crimes committed in Afghanistan. This includes crimes committed by US officials, in particular, torture and ill-treatment. Convicted by the ICC: Thomas Lubanga (Dem. Rep. of Congo), (Dem. Rep. of Congo), Jean-Pierre Bemba (Central African Republic), Ahmad Al-Faqi Al-Mahdi (Mali)

On trial at the ICC: (DR Congo), Laurent Gbagbo (Côte d’Ivoire), Charles Blé Goudé (Côte d’Ivoire), (Uganda)

Wanted for trial at the ICC: Omar al-Bashir (Sudan), Seif al-Islam Gaddafi (Libya), (Uganda), and several others

Laurent Gbagbo, former president of Côte d’Ivoire David Bosco, Rough Justice • Does politics affect the conduct of the ICC? – Major powers – Other states – The ICC (prosecutor) • Bosco’s claim: a politics of mutual accommodation between the ICC prosecutor and the major powers • Law is not effaced, but nor does it displace politics. • What posture will major powers adopt towards ICC? – marginalization – control – acceptance • What posture will major powers adopt towards ICC? – marginalization – control – acceptance • What posture will major powers adopt towards ICC? – marginalization – control – acceptance • What type of behavior will the prosecutor adopt towards the major powers? – apolitical – pragmatic – strategic – captured • What posture will major powers adopt towards ICC? – marginalization – control – acceptance • What type of behavior will the prosecutor adopt towards the major powers? – apolitical – pragmatic – strategic – captured Darfur, Sudan, as case study

Omar al-Bashir, president of Sudan Darfur, Sudan, as case study • January 2005. UN Commission of Inquiry recommends Security Council referral to ICC • March 2005. UN Security Council refers Darfur situation to ICC. • February 2007. ICC prosecutor seeks indictments against (cabinet minister) and (pro-government militia leader) • April 2007. ICC judges issue arrest warrants against Haroun and Kushayb. • July 2008. ICC prosecutor seeks indictment against Sudanese president Omar al-Bashir for war crimes, crimes against humanity, and genocide. • March 2009. ICC judges issue arrest warrant against Bashir for WC and CAH, but not genocide. • July 2010. ICC judges reinstate genocide charge against Bashir. Darfur, Africa, and the ICC • Bashir seeks to mobilize African opposition to the ICC. • encourages member states to withhold cooperation from the ICC. African countries are divided. • Burundi has withdrawn from the ICC treaty. (Previously, South Africa and Gambia made moves to do so.) • Is the ICC biased against Africa? Some Virtues of the ICC:

1. It invites countries to make their own commitment to human rights and democracy. (A desirable alternative to costly and dangerous attempts to impose democracy from the outside.) 2. It publicizes, teaches, and reinforces values of human rights and international humanitarian law. 3. It embodies principles of reciprocity that discourage the corruption of international justice. Seeks to overcome the problem of victor’s justice. 4. It is an opportunity to collect and publicize information about human rights atrocities. 5. It provides an opportunity to mobilize concerted international action in response to human rights atrocities. Some Virtues of the ICC, cont.

6. It can serve as a catalyst for domestic change – Prod to domestic legislation – Influence on domestic judges – Resource for domestic human rights advocates Features of the ICC to which the United States government has objected:

• Jurisdiction over non-party nationals • Ability to act independently of the UN Security Council • Power of prosecutorial initiative