The International Criminal Court – Background
When people commit crimes, they have to face the retributions. Whether this be on a local or national scale, systems are put into place to ensure the wellbeing of our society. However, what if the crime is too grave? What if the crime is of a global scale? Usually, the answer to this question would be to let the United Nations take it from here. However, as the name states, their area of expertise, is that of states and countries, to ensure global cooperation within governments and leading bodies. But what if the crime is not committed by a country, but by an individual? If a crime committed is so grave, it can not be handled by the country alone, so heinous that it leaves a lasting impact on other people’s lives around the world, what do we do then?
Most people of this day and age have heard of the United Nations, an organisation whose purpose is to ensure world peace and that fundamental human rights are enforced. However, less well-known is the International Criminal Court, or the ICC for short. This independent organisation works alongside the United Nations, as a complementary jurisdictional organisation. Where the United Nations holds countries accountable for their actions, the ICC tries individuals charged with the
“Gravest crimes of concern to the international community”
these being Crimes of genocide, crimes against humanity, war crimes, and crimes of mass aggression.
On the 17th of July, 1998, the Rome Statute was adopted at a diplomatic conference in Rome, and entered into force of the 1st of July, 2002. This multilateral treaty, serving as the ICC’s governing document, states that the ICC may only investigate and prosecute the four core international crimes in situations where states are unwilling or unable to do so, meaning that they do not have the resources or would rather have a third neutral party conduct the trail.
As a judicial institution, the ICC does not have its own police force, or enforcement body, and relies on cooperation with countries to make arrests or bring criminals in to be tried. The ICC has jurisdiction in three events; when one of these crimes are committed in the territory of a state party, when the crime is committed by a national of a state party, or if it is organised by the United Nations Security Council. Seeing as the UN and ICC work side by side, it would make sense to think that all UN state parties are automatically ICC parties as well. However, as the ICC is an independent organisation, this is not the case, for example in the instance of the United States of America which was a signatory state, that subsequently withdrew its signature.
The centre of the ICC, where all trials take place, is based in the heart of the Hague, the same city that holds the Netherlands’ House of Parliament, and the World Peace Palace. Therefore, the Hague is an ideal location for the International Criminal Court, where cooperation and diplomatic agreements are fostered. However, due to the recent political events in the world, there is much speculation about the ICC’s role, and whether more countries will follow America’s isolationist and nationalist actions, and withdraw their signatures. If highly influential countries like America and Russia are leaving international organisations such as there, who is to say they will stop there, or, that other countries will not follow suit?
International Criminal Courts: partners, supporters and relationships
Russia, Africa and the ICC: true opposition or personal gain?
Several countries have withdrawn their membership of the ICC on the basis of a contrast in beliefs, traditions and views of justice. Russia recently announced its withdrawal after Putin declared the ICC’s prosecuting system to be
“one-sided, inefficient and ineffective”.
He later went on to proclaim the ICC
“failed to live up to expectations”.
On the surface Russia’s exit could be put down to a irreconcilable differences. However, upon delving deeper into the events leading up to it, a different interpretation appears.
First, in a document published late last year, the ICC announced it’s plans to review Russia’s ‘brief’ war with Georgia in 2008. As part of the review, the ICC planned to investigate possible war crimes conducted by Russian armed forces, which would scrutinise what Russia saw as a just political decision.
Second, the ICC Chief Prosecutor’s report, released on 14 November 2016 states that evidence obtained by the Court points to Russia’s direct military involvement in the armed conflict in Eastern Ukraine, something that Russian authorities have repeatedly denied. The Chief Prosecutor claims:
“The Russian Federation displayed members of its armed forces to gain control over parts of Ukrainian territory without consent of the Ukrainian government”
However, Ukraine, like Russia is a non-member of the ICC, and therefore is not truly under ICC jurisdiction, though it has accepted the Court’s power in limited circumstances. As such, the Court would have had jurisdiction to investigate and prosecute crimes committed by Russia, had Russia not withdrawn from the Rome Statute. Thus, this is another explanation for Russia’s withdrawal from the ICC to suit itself.
Third, a more recent charge against Russia by the ICC, is its occupation of Crimea, another crime that Russia had dodged as a result of leaving the ICC. The Prosecutor described Russia’s act as:
“Factually amounting to an on-going state of occupation”
But the ICC is powerless to act on this illegal act. For years Africa has been threatening to withdraw from the ICC. The threat was first made when African leader, Bashir, was charged by the ICC for crimes of genocide. He justified his actions by denouncing the Court, claiming that the ICC has anti-African bias and is racially prejudiced. Furthermore, many African leaders and court systems see the ICC as an insult to their traditional ways; national or even local crimes are often taken out of the hands of Africans and dealt with foreign, thus removing independence from African people.
Despite the anti-ICC sentiment, African Leaders at the African Union Summit last month, pushed back any decisions to withdraw from the ICC. Support for the ICC does not, however, sit well with President Zuma of South Africa. He is moving towards cutting ties with the ICC, which many see as a way to repeal national legislation outlawing atrocity crimes. This would impact the whole of Africa as South Africa is Africa’s most politically and economically powerful country. Therefore, South Africa’s withdrawal may trigger a mass withdrawal of other African countries. However, Zuma’s bid to leave the ICC was announced by African Union High Courts to be
“unconstitutional and invalid”
as Zuma did not have parliamentary acknowledgement or approval before writing up the withdrawal notice. Despite the rejection of Zuma’s notice by the African Union, most Africans feel the controversy is more about Zuma taking unitarian action without the High Courts approval than his opinions about withdrawing from the ICC. Thus, perhaps the long standing thought that the ICC prosecutes an overly high number of African criminals, still holds amongst African citizens.
Europe and the UN: strongest supporters of the ICC
All EU member states are signatories to the ICC and the Rome Statute. In 2001, to further strengthen their relationship, an agreement was signed in between the ICC and the EU, agreeing a common position that strongly supported the ICC. Since then, the EU has provided the Court with political, financial and technological support. In 2006, the close relationship between the EU and the ICC was strengthened yet further when both parties signed the Cooperative Agreement, allowing the EU to legally assist the ICC in criminal cases. For example, under the Agreement it is now possible for the EU to hand classified information, or indeed known criminals, to the Court.
The United Nations (UN) also has a close-working relationship with the ICC, which has lasted more than a decade. Indeed, UN representatives have described the ICC as their:
“partners of shared values”
Furthermore, the Relationship Agreement, signed in 2004, states that cooperation and coordination between the UN and the ICC is not merely an option, but a requirement. Thus, the two partners must work together for each of their operations to be effective.
The ICC works most closely with the UN’s Security Council. This is the UN’s most powerful body because it gives authorisation for military action. The way the ICC and Security Council work together is unique; no other justice partnership like it exists in the world. The Security Council refers cases to the ICC under any of the four crimes listed in the Rome Statute, and thus, the ICC investigates those referred cases on the legal basis of the UN’s power and jurisdiction. The ICC-UN collaboration, allows the ICC to operate without any reprisals by states or countries involved in accused crimes. Further, the ICC retains full judicial independence despite the Security Council’s power.
Policy on Children; a safer future for all
What is it?
The ICC’s Draft Policy on Children was published by the ICC’s chief prosecutor, Mrs Fatou Bensouda, on the 22nd of June 2016, although the final policy wasn’t officially published until November 2016. The BSN students attended the launch of the official policy, and we were lucky enough to meet with global leaders in their field, such as Romeo Dallaire, who is working on the Child Soldier’s Initiative to progressively end the use of child soldiers through a security sector approach. The chief prosecutor suggested the policy was designed so that loopholes in the previous policies could be filled; the ICC would now consider not only ‘children with arms’, but also ‘children affected by arms’.
Prosecutor Bensouda wished to adopt a more focused approach to the question and for her Office to articulate the framework to achieve justice for crimes against and affecting children in a more detailed manner. The Office of the Prosecutor (OTP)’s Policy on Children specifically deals with a number of issues of importance. These include cooperation between the OTP and States, civil society, international organisations and others. It also defines their approach to addressing the crimes under the Rome Statute which are either perpetrated against children or affect them, special measures to take when interacting with children during the judicial process, the two-step process for a best interest assessment, sentencing, a child-sensitive approach to reparations, and post-trial issues.
The new policy aims to help and protect all children across the world from ongoing problems such as trafficking or child rape. As the executive summary stated, “Millions of children, women and men have been, and continue to be, victims of unimaginable atrocities that deeply shock the conscience of humanity.” The policy also includes the prosecution of any war crimes explicitly affecting children or damage to any educational or child based buildings. These are issues which do not usually draw the full attention of a government or court.
Over 300,000 people died in 2016 alone because of the Syrian war, including thousands of children. These actions are punishable under the umbrella of war crimes, but the impact left on surviving citizens, especially children, is left unaddressed. Schools are knocked down and houses are destroyed, leaving the most vulnerable children unable to protect themselves.
Experiencing or viewing a horrific crime can leave a lasting imprint on a child and lead to long time trauma. This can affect their development and social capabilities throughout the rest of their lives. The people around a child can greatly influence their speed of recovery and general wellbeing which is why it is essential that a child is protected and respected. This is one of the areas that the ICC is trying to improve through drawing attention towards the issues affecting the wellbeing of children who have gone through traumatising events.
What is the new policy doing?
To tackle these issues, the ICC is focusing its policy on anyone under the age of 18 with the aim of trying to cut back on the number of children affected both physically and mentally by the actions of others. At its centre, the policy ensures that children involved will have defined rights that correspond with the 1989 Convention on the Rights of the Child, also covering child witnesses and victims.
The new program ensures that any child witness will have their evidence taken more credibly and more seriously, whilst simultaneously taking into consideration factors such as the age and the level of maturity of the child. They will also be working to take a more child friendly approach. One way they will achieve this is through having the office dedicate more time to the children involved to form a relationship of mutual trust and respect. This will allow them to feel secure, safe and respected in an unknown and potentially frightening environment. This is critical for the child, as they will then be more likely to open up and release information about the case.
Clause 74 of the policy states that “The Office will reassure the child, particularly one believed to have been involved in crimes” by helping to provide more emotional support. This aims to show the child that their wellbeing will be ensured. It will also help stop a child from committing any irrational acts, such as self harm, which might result from fear for their future.
The ICC Children’s Office will also provide training sessions for staff members to ensure they take the right approach when dealing with cases involving children. The policy sets out how the child’s engagement will be kept at a minimum, with the first involvement generally occurring at the initial interview stage. The aim is to help the child feel as relaxed as possible and not be overwhelmed by the case.
Why is it important?
The importance of an approach taken to fit the individual involved is paramount because when people go through a hard or traumatic experience, it can affect them mentally, as well as physically, making it more difficult to fully commit to any investigation of the case as well as fearing the authorities. The new policy applies to everyone, everywhere. Any child could be affected by any of the topics covered and the hope for the future is that children will feel safer and more protected. The ICC has also expressed the need for the Policy on Children to be clear, simple and easy to understand because it is not only about children, but also for them, meaning that they should be able to understand the contents. With this in mind, so far the policy has been published in French, English, Spanish, Arabic and Swahili, and there are plans to issue a more child-friendly language version of the policy. While the ICC hope that the Policy can also be of use to national jurisdictions, the OTP will not be monitoring the implementation of policy beyond what is within its mandate and control.
Voke and Maisie
Investigating Public Opinion on the ICC
After looking at the role of the ICC and the new policy that has been published, we wanted to test the awareness of an international audience. We decided to interview 21 people, including students and teachers from around the school, to see how different age groups reacted to the ICC. We wanted to see how global issues affect international students like those that attend our school. We received quite a varied response across the years, likely due to the experience of the interviewees with regard to the ICC; their age, nationality, or family members’ occupations could all affect their responses.
|Year group||Do you know what the ICC is?||Is the ICC necessary?||Is the new policy necessary, what do you think about it?||What are your opinions on America leaving the ICC?||Do you think that members of the UN should automatically be a part of the ICC?|
|Yes – war and death is not something children should have to go through||Many crimes will go unnoticed and unpunished because they left||Yes – otherwise it wouldn’t be as international|
|7||No||Yes||Yes – its bad that children have to experience trauma||Courts will be weakened and seen as less important||Yes – they belong together|
|11||Yes||Yes||Very necessary that the courts are paying attention and targeting the serious issue||It’s quite stupid – no laws against carrying guns even though there might be serious consequences, they need an external source to monitor this||Yes – both organisations are fighting for peace, and if they work together it could be achieved more easily|
|11||No – I have friends whose parents work there||Yes – increases chance of justice being served||Yes – helps children in countries where they will otherwise be exploited, promotes more humane treatment of children||Wrong, shouldn’t leave, promotes global justice, by leaving they seem to oppose that way of thinking. However, it could be that the US has policies already in place, rendering the ICC useless to them||Unsure, by choice,|
|Adult||Yes||Yes, supports unification||Very necessary, something that has become a serious issue in today’s society||Should be looked at as a world problem||Yes, differentiating people and countries at fault is important|
|Adult||No||Yes, dangerous to always blame a nation for the fault of an individual – creates prejudices||Definitely relevant to what happens today||Looks suspicious, not putting up a united front.||Collaboration is good, signals good message towards others.|
|Adult||Yes||Yes, separate to the UN||Although it may fall under existing policies, it could be helpful in increasing awareness and reducing crime||Not a good thing, the more members the better||Need to work together for it to work|
|10||No||Yes||Good thing that is necessary||Irrational, shouldn’t happen||Not necessary, their own choice as a country|
|10||No||Yes||Yes, it’s a good law||Not good because they are a big power in the world||Yes, makes it easier to control|
|12||No||Yes, it is important||Sounds good||Its fine because they are a big country, they can run themselves||No they have their own choice|
|9||Yes||Yes||Good because there need to be stricter laws around the rights of children||Bad||Yes, easier to correct crimes|
|13||Yes||Yes, crimes committed that people can’t put through legal systems, depending on countries||Good thing||Stupid||Could be a vital part, more issues can be sorted quicker, could be useful|
|11||Yes||Yes because in some cases it intervenes in situations||Don’t think there’s a difference because they will already have been affected by the other laws||Surprised, one of the biggest countries, make the ICC have more power, leaving it will deeply affect it||No because the UN is large in comparison, the ICC will be placed on a pedestal|
|Adult||Yes||Yes because there needs to be a sense of justice where people are held accountable between countries||Yes because child exploitation is different||Ridiculous, sets a bad example as they have a lot of power||Not sure because they could work together but not necessarily the same|
|11||No||Yes||Yes||Bad, they want to avoid responsibility||Yes|
|7||No||Yes||Yes||Bad, don’t want to be judges, might do something bad, no interference||No|
|9||No||Yes||Yes||America might want to do something untrustworthy could be protecting a criminal, makes other countries question America’s legitimacy||Yes|
We found that most people did not know what the ICC was, even though the numbers were quite close: 10 people knew what it was while 11 people did not. Regardless, once they were informed of what the ICC was, everyone agreed to some extent that the ICC was necessary. As young and inexperienced students from year seven may be, their insight was surprisingly complex.
“War and death is not something children should have to go through” -Sarah, 11
Their educated answers proved that while they were young, their opinions were very much the same as adults who we questioned
“America leaving the ICC makes other countries question The USA’s legitimacy” -Allessandra, 14
“America’s withdrawal looks suspicious, as they are not putting up a United front” -Michael, 18+
The most varied answer was given when people were asked whether they thought that being part of the UN should mean you were automatically part of the ICC. Ten out of the 21 people questioned believed that UN state parties should also be ICC members, stating that
“Collaboration is always good as it signals a good message towards others” – Emma, 18+
“Both organizations are fighting for peace, and if they work together it could be achieved more easily” -Irina, 15
However, there were people of all ages who believed that they should remain independent, for a varied of reasons such as:
“The UN is much larger in comparison, therefore the ICC would be placed on a pedestal” Irma, 16
“They are independent and should remain that way, despite working together for the same goal.” Hazel, 18+
Overall, the varied response was very interesting and shows that we should not invalidate the opinions of younger people because often they are just as insightful, or even more insightful than, the views of older people.
Gwenna, Luna, Voke, Maisie