Impunity over for heinous crimes against humanity
OPINION:For 10 years, the International Criminal Court has ensured justice and accountability
THIS MONTH we mark the 10th anniversary of the establishment of the International Criminal Court. The court represents the international community’s resolve to end impunity for the most heinous crimes and to foster a culture of accountability.
Less than 20 years ago, the prospect of holding individuals personally accountable for international crimes so serious that they shock the conscience of mankind seemed illusory. Impunity for genocide, crimes against humanity and war crimes was tolerated, and the gravest of crimes went unpunished.
For several decades, the voices of victims who suffered unimaginable atrocities went unheard as the international community struggled to build upon the legacy of the Nuremberg and Tokyo tribunals.
The tide has finally turned. Today, those responsible for genocide, war crimes, crimes against humanity and other gross violations of international humanitarian and human rights law are being held accountable. Heads of state and senior officials can no longer hide from justice.
The flame of international criminal justice was rekindled in the early 1990s, when the Security Council established the International Criminal Tribunals for Rwanda and the former Yugoslavia in response to the atrocities in those countries. The successes of these two tribunals emboldened the determination to establish a permanent court.
The International Criminal Court, which took more than a decade to be established, represents one of the major achievements of the past century in international law.
It is currently considering eight situations: four self-referrals (Central African Republic; Democratic Republic of the Congo; Mali; and Uganda); two Security Council referrals (Darfur and Libya); and two prosecutor-initiated situations (Côte d’Ivoire and Kenya). Recently, the ICC has completed its first trial. The Rome Statute has been ratified by 121 states. The ICC enjoys the support of many other states and the UN.
Today, there is no denying that international criminal justice and its centrepiece, the ICC, have become part of the fabric of the international system. The objectives of international criminal justice are closely intertwined with the achievement of stability, as atrocity crimes threaten the peace and security of societies. Its mission to end impunity for serious crimes complements the purposes and principles of the UN.
Jurisprudence has developed that should make potential perpetrators think twice before. The threat of prosecution and punishment hangs over those who commit atrocity crimes. Children cannot be used as soldiers during hostilities. Use of sexual violence as a weapon of war is a serious crime. Rape can be treated as an element of genocide. Attacks against UN peacekeepers are unlawful.
This growing body of jurisprudence makes clear that individuals will be held accountable. Following superiors’ orders is neither a defence nor a mitigating factor. The recent conviction of Charles Taylor, former president of Liberia, by the Special Court for Sierra Leone was the first conviction of a former head of state since Nuremberg. This trial has demonstrated the long reach of international criminal justice.
Ensuring accountability for serious international crimes is neither cheap nor fast. These cases are complex. Their integrity and credibility depend on the highest standards of justice and fairness. In addition, the success of international criminal justice depends upon the co-operation of states: in funding; in providing evidence and facilitating witnesses; in surrendering suspects; and in providing prisons. Thus, in as far as it depends on the political will of states, the system of international criminal justice remains fragile.
International courts are engaged only when national courts are unable or unwilling to investigate or prosecute. In some cases, after a conflict, there is no proper national criminal justice infrastructure. Sierra Leone and some parts of the former Yugoslavia were so devastated by war they did not have the resources for prosecutions. Rwanda did not have the capacity to try the senior public officials responsible for the genocide.
Just as prosecution in domestic courts is not the only solution or deterrent for domestic crimes, international criminal justice is not a panacea for all the evils in the world. The Arab Spring has reminded us that people worldwide strive for the full realisation of their human rights and fundamental freedoms, for justice and for rule of law.
International criminal justice responds to the aspirations of people everywhere by reaffirming faith in fundamental human rights and in the dignity and worth of the human person.
It also does so by upholding the unwavering principle that impunity for the worst crimes known to mankind will never again be tolerated.
Under-secretary-general PATRICIA O'BRIENis the UN legal counsel