The temporary nature of the international courts, along with continued violence around the world, raised several questions: Was it possible to create a more permanent international criminal court? Would such a court act as a deterrent for the worst atrocities? What crimes would come under the jurisdiction of an international criminal court? Under what conditions would an international court be able to supersede the authority of national courts? To address these questions, representatives from more than 160 countries gathered in Rome in June 1998 at a meeting called the Rome conference. Because the representatives came from diverse cultures with differing views on justice, reaching agreement about the structure of an international criminal court required careful negotiation and compromise. Despite these challenges, the document drafted at this conference, the Rome Statute, was eventually approved, establishing the International Criminal Court. As of 2015, 123 countries had officially recognized the authority of the court.
The International Criminal Court (ICC) began investigating its first cases in 2002. Unlike the temporary international tribunals, it is independent of the United Nations. The ICC is a “court of last resort” and can begin legal proceedings only when the courts of individual countries cannot or will not act. It can accept cases when a member country requests its help, when the UN Security Council directs it to investigate, or when its own chief prosecutor decides to do so. Since its establishment, the ICC has opened investigations of crimes in ten countries, including Uganda, Sudan (for the situation in Darfur), the Democratic Republic of Congo, Libya, and the Central African Republic. It has convicted two Congolese warlords of war crimes and crimes against humanity.
Fatou Bensouda, the chief prosecutor of the ICC in 2016, said:
During the previous century, millions of people, many of them children, were victims of unimaginable atrocities. The International Criminal Court symbolizes the hope that by ending impunity [lack of punishment] for such crimes, we might prevent their occurrence and contribute to the peace, security, and well being of the world.
The hopes voiced by Bensouda may seem obvious, but in practice, the ICC has proved to be controversial. Many powerful nations, including the United States, China, India, and Russia, have never officially ratified the Rome Statute and do not participate in the court. (Individuals and groups within those countries, however, are allowed to support and even work for the ICC.) Many countries feared that signing the treaty would undermine their sovereignty and make them vulnerable to outside interference in their affairs. They were also reluctant to expose their citizens, especially those in the military, to prosecution by the ICC. Critics have argued that the work of the ICC doesn’t always serve the best interests of oppressed people. Legal observer Ted Galen Carpenter claims that
threatening to prosecute dictators and other offenders creates a powerful incentive for them to cling to power, even when a diplomatic deal might get them to go quietly into exile. There may be difficult tradeoffs between securing justice for victims and hastening the end of a brutal regime, but I.C.C. supporters tend to ignore that dilemma.
Supporters of the ICC highlight how much the court has accomplished in spite of the challenges it faces. Legal scholar Margaret deGuzman says,
What is surprising, therefore, is not that the ICC has been unable to overcome political realities, but that it has accomplished as much as it has in its relatively short life. It has garnered the support of most of the world’s states, opened numerous investigations and concluded several trials . . . [W]e must remember that the court operates in a politically constrained world and celebrate its achievements as much as we lament its shortcomings. By prosecuting the recruitment of child soldiers and crimes of sexual violence, the ICC has sent strong messages that the world condemns such crimes.
Benjamin Ferencz is one of many Americans who have tried to convince their government to ratify the Rome Statute and officially join the ICC. In 1946, he served as chief prosecutor of Nazi criminals at the Nuremberg trials. This experience had a profound influence on Ferencz. He has said, “Nuremberg taught me that creating a world of tolerance and passion would be a long and arduous task. And I also learned that if we did not devote ourselves to developing effective world law, the same cruel mentality that made the Holocaust possible might one day destroy the entire human race.”
After Nuremberg, Ferencz made the pursuit of international justice his life’s work. In a 2009 film, he points out,
When I went to school, there was no such thing as human rights law. Humanitarian law didn’t exist. So I have seen these changes coming in our lifetime. That’s a long life, I’m in my 87th year, but it’s . . . a blink in the eye of time, of historical time. We need several generations to continue working on it . . . So it can be done, and we should never be defeatist and say it can’t be done. It’s so obviously correct that law is better than war, and that it’s better to live in peace with human rights than to live in war . . .
- What impact might the ICC have on those who directly participate in its trials, including plaintiffs, victims, and witnesses? What effect might seeing individuals put on trial and punished by the ICC have on the choices of people—leaders and citizens—around the world?
- Fatou Bensouda made a connection between “ending impunity” and the prevention of future crimes. What is impunity? What evidence, from history and our world today, suggests that crimes can be prevented if individuals believe they will be punished for committing them? Can you think of any evidence that demonstrates that the fear of “getting caught” and punished does not stop individuals from committing crimes? Can you think of any other measures that might prevent people, especially those in positions of power, from committing crimes?
- In a documentary film about the International Criminal Court called The Reckoning, a young ICC lawyer confides that “working here has made me realize that justice is easier said than done.” What do you think she means? What does the history of the ICC suggest about the challenges of achieving justice even when laws and courts are in place?
- Do you think it is possible for legal systems to prevent violent conflict? Can you identify any examples, from history or from your own experience, of situations in which rules have prevented violence? What kinds of laws would best help communities and nations to avoid violent conflict?