The punishment and prevention of genocide: the International Criminal Court as a benchmark of progress and need.

AuthorChung, Christine H.
PositionInternational Conference in Commemoration of the Sixtieth Anniversary of the Negotiation of the Genocide Convention

INTRODUCTION

Sixty years ago, the drafters of the Genocide Convention envisioned the creation of an "international judicial organ" that would be available to try individuals accused of committing genocide and other crimes under international law. (1) Article VI of the Convention itself specified the possibility that persons charged with genocide be tried by such "international penal tribunal as may have jurisdiction" by agreement of contracting States. (2) Today, following decades of a difficult "birthing" process, the permanent international criminal tribunal anticipated by the drafters of that Convention--the International Criminal Court (ICC)--has been in operation for nearly five years. (3) The ICC has issued eleven arrest warrants relating to war crimes and crimes against humanity committed during three of the gravest ongoing conflicts in the world: in the Darfur region of the Sudan, in northern Uganda, and in the Democratic Republic of Congo (DRC). Its first trial, of an alleged DRC warlord, is scheduled to begin in June 2008.

A handful of years are a slim record upon which to begin reaching any conclusions. Still, in the spirit of commemorating the negotiation and adoption of the Genocide Convention, this article offers observations on the manner in which the earliest operations of the "international judicial organ" foreseen by the Convention drafters demonstrate and underscore: (1) progress in the mission of punishing and preventing genocide and other crimes of international concern, and (2) the difficulties and next challenges in accomplishing the Genocide Convention's objectives.

PROGRESS

On the progress front, the ICC has begun fulfilling at least three core aims of the Genocide Convention drafters.

  1. Strengthening of the International Rule of Law

    Most fundamentally, the ICC represents and fosters international consensus supporting a rule of law that defines genocide and other mass atrocities as crimes condemned by the civilized world. The Genocide Convention expressed an agreement among States that genocide is a crime under international law and obligated ratifying States to adopt domestic legislation criminalizing genocide, as defined in the Convention. (4) Nearly fifty years after the adoption of the Convention, in signing the treaty at Rome that created the ICC, States again reached consensus that genocide is a crime, under the same definition set forth in the Convention. (5) The signatory States also placed war crimes and crimes against humanity within the ICC's jurisdiction, judging that these crimes, like genocide, were among "the most serious crimes of concern to the international community as a whole." (6) The growing number of countries that continue to ratify the Rome Statute--at latest count, 106 countries (7)--represents the continuing commitment to a rule of law that criminalizes genocide, as well as an expanded consensus that war crimes and crimes against humanity are also crimes of international concern. As with the Genocide Convention, ICC ratification serves as a catalyst for harmonizing domestic standards to an international rule of law, because States that ratify the Rome Statute often also adopt ICC definitions of crimes in their domestic legislation.

    The building of the consensus expressed by the Genocide Convention grows in at least three dimensions via the ICC ratification process. First, there is the fact that through joining the ICC, additional countries have accepted the norm that genocide and other mass atrocities are indeed crimes deserving of international judgment and denunciation. Japan, which recently joined the ICC, is one of eighteen countries that never ratified the Genocide Convention, but have elected to ratify the Rome Statute. (8)

    Second, through ratification of the Rome Statute, States bind themselves to enforce the international rule of law within their own borders and agree that, if they fail, the ICC may intervene. (9) This simple commitment represents a huge innovation. Like Odysseus, who bound himself to the mast in anticipation of hearing the Sirens, States that join the ICC have foreseen the possibility of their own frailty and have committed themselves to the fail-safe remedy. Member States pledge to support the permanent international criminal court in its work by means of an international cooperation network. The States also express, through the 128 articles of the Rome Statute, consensus upon the specific procedures, standards, and cooperation mechanisms by which perpetrators of genocide, crimes against humanity, and war crimes should be brought to justice under universal standards of fairness. The Rome Statute, in short, creates both a court and an international criminal justice system.

    Finally, the ICC's existence simultaneously strengthens the instrument that will always constitute the primary "line of defense" against genocide and other crimes under international law--domestic punishment of those crimes. The Genocide Convention recognized that the operations of any international judicial organ must be complementary to the enforcement efforts of States.(10) The ICC, likewise, complements national enforcement mechanisms in that it possesses authority to act only when States are "unwilling" or "unable" to do so. (11) By its existence and operations, however, the ICC raises the bar of domestic accountability, even while pursuing international prosecutions. For example, knowledge that the ICC was ready to exercise its jurisdiction created the incentive for the then-transitional government of the DRC to invite an investigation into crimes committed in that country which otherwise would have escaped scrutiny. The DRC government self-referred the investigation of crimes allegedly committed in the DRC to the ICC after ICC Prosecutor Luis Moreno-Ocampo made public statements that he was prepared to use proprio motu powers to initiate an investigation. (12)

    The spread of the domestic enactment of ICC standards also strengthens State enforcement. In the United Kingdom, the International Criminal Court Act of 2001, which was enacted in connection with the ratification of the Rome Statute, became the basis for military charges brought in 2005 against soldiers in the British Army for allegedly committing war crimes against civilian prisoners in Iraq. (13) In the Netherlands, Dutch prosecutors publicly identified statements in which the Prosecutor of the ICC had encouraged the investigation of the "criminal business" of war, as motivation for two domestic prosecutions relating to war crimes and human rights abuses in the Middle East and Africa: one in which a Dutch businessman was charged with furnishing chemicals to Saddam Hussein, (14) and another in which another Dutch citizen was alleged to have provided support, including militia, to Charles Taylor. (15)

  2. The Systematic Review of Allegations of Genocide and Other Mass Atrocities

    A second area of progress that the drafters of the Genocide Convention might identify from the existence and operation of the ICC is the circumstance that there exists for the first time a judicial entity that systematically reviews allegations of mass atrocities to identify situations for investigation and prosecution. One wonders if the Convention drafters would have been gratified or horrified to learn that the ICC Office of the Prosecutor has received thousands of communications and referrals in its first years of operation-from individuals, organizations, and nations in over one hundred countries--recommending investigation and prosecution of atrocities allegedly committed around the world. (16) The achievement is that the ICC now reviews each of these communications and referrals. It determines whether the communications and referrals contain allegations deserving further investigation under the legal standards adopted in the Rome Statute and thus representing, at a minimum, the consensus of the member States of the ICC. As a result of this legal analysis, and of further culling based on its mandate of focusing upon the gravest crimes, (17) the ICC has selected some situations for investigation (thus far, in the DRC, in northern Uganda, in the Darfur region of the Sudan, and in the Central African Republic), while declining others (e.g., in Venezuela and Iraq).

    It is impossible, of course, to achieve perfect consensus about which investigations and prosecutions should be accepted or declined. The advance is that a worldwide clearinghouse for the evaluation of allegations of genocide, war crimes, and crimes against humanity, is operational. Further, the evaluation proceeds under known legal standards, to permit an examination of the merits of the decisions ultimately made. (18)

  3. Prevention of Genocide and Other Mass Crimes

    A final area in which the negotiators of the Genocide Convention might view progress in fulfilling their long-term objectives is the ICC's effort to advance the most difficult aim of the Genocide Convention: the prevention of genocide. In each of the first three investigations it opened, the Office of the Prosecutor undertook to carry out investigation and prosecution in the midst of an ongoing conflict that qualified as one of the worst in the world. In doing so, the Office of the Prosecutor opened itself to every possible complication that accompanies an attempt to carry on a criminal investigation in the middle of a war. These include, most notably, the struggles of conducting field investigations within the war zone, of providing adequate protection to victims and witnesses within that zone, and of keeping ICC field staff safe. In the most extreme case, in Darfur, the Prosecutor decided not to conduct any investigations in Darfur itself because of the danger to victims and witnesses. (19) The perceived benefit of each of the early ICC interventions--a benefit outweighing the disadvantages--was the possibility of maximizing the opportunity to have a preventive effect on the conflict...

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