How the tools of international criminal justice evolved

Wartime atrocities have marked human history for 10,000 years, but accountability and justice post-crisis is a relatively recent concept. Any major attempts to identify and prosecute the men and women behind war crimes and crimes against humanity occurred in Europe and Asia after World War II. 

International criminal courts and tribunals have been active since the end of World War II. And with the atrocities against Syrians during the seven-year-war; the purge of Rohingya Muslims by Myanmar's army and the never-ending war stage in Afghanistan, the need to hold individuals and institutions responsible for their crimes against humanity is current and pressing. 

However, discussions about war crimes and what should be done to punish those who commit them date back to World War I.

The evolution of international justice

The Allied Powers, through the Treaty of Versailles, sought the prosecution of German Emperor Wilhelm II and the other officials who were defined as war criminals after WWI. 

But nothing came out of the trials in Leipzig.

But the Holocaust changed everything. The murder of several million Jews, Slavs, Poles and people with physical and mental disabilities by Nazi Germany in World War II could not be committed to collective memory without an annotation of justice. 

The victors of war, the Allied leaders, insisted Nazi Party officials and the upper echelons of the German military be tried, giving rise to the US Nuremberg Military Tribunals. As a result, individuals, as well as Nazi organisations, were indicted. In addition to that, the allied powers of France, the Soviet Union, the United Kingdom and the United States set up a separate tribunal to prosecute Japanese military officials for the mass murder of Chinese civilians and prisoners during the war. 

The tribunals came under criticism for representing only victor's justice, which tried people from the losing side.

Nonetheless, both trials are seen as instrumental in setting a precedent that individuals could be tried internationally for war crimes, regardless of their official positions. 

The Nuremberg charter outlining the international military tribunal's functions, jurisdictions and the types of crime that would be tried – crimes against humanity, war crimes and crimes against peace – also laid the ground for formalising methods of international justice.

Discussions about the establishment of an international criminal court come to the fore almost half a century later after the large-scale atrocities committed in the former Yugoslavia and Rwanda. The UN set up the specialised International Criminal Tribunal of Yugoslavia (ICTY)  and International Criminal Tribunal for Rwanda (ICTR) in 1993 and 1994 respectively to hold those responsible accountable. 

The birth of the ICC

During the Rome Conference in 1998, states agreed to establish the International Criminal Court (ICC), which was the first permanent court that had jurisdiction over genocide, crimes against humanity, crimes of aggression and war crimes almost regardless of where they were committed. 

The ICC launched its first investigations in 2004, into crimes in the Democratic Republic of Congo and Uganda. It issued its first arrest warrants in 2005 for five leaders of the Lord’s Resistance Army in Uganda accused of stoking 19 years of conflict. The governments of both countries had asked the ICC to investigate.

Since then, the ICC has opened investigations into nine more situations in the Central African Republic; Darfur, Sudan; Kenya; Libya; Cote d'Ivoire, Mali, Georgia and Burundi – all in Africa with the one exception. 

As a result, the court is often accused of becoming a tool for controlling Africa as the investigations have been mostly targeting African countries. 

"The ICC was supposed to address the whole world, but it ended up covering only Africa," Rwandan President Paul Kagame said in May at a meeting in the capital, Kigali.

"From the time of its inception, I said there was a fraud basis on which it was set up and how it was going to be used. I told people that this would be a court to try Africans, not people from across the world.

"And I don't believe I have been proven wrong." 

The role of ICC in international law

The permanent autonomous court which is funded by contributions from signatory countries and also voluntary contributions from other parties such as international organisations and individuals etc is different from the ad hoc tribunals in terms of jurisdiction.

It is an independent body with the remit to try cases involving war crimes, crimes against humanity and genocide committed anywhere and anytime within its jurisdiction without the need for a special mandate from the UN. 

The court is designed to respect state sovereignty and only seeks to prosecute individuals rather than states. 

The ICC is separate from the International Court of Justice (ICJ), the highest legal authority of the United Nations. Both courts are based in The Hague.

The ICJ’s primary function is to settle legal disputes between states and giving advisory opinions on legal matters. It can not prosecute individuals. 

When can the ICC act?

Currently, 123 countries, including the UK ratified the Rome Statute of the International Criminal Court. The US, China, India, Russia and several other states have refused to join. 

The court operates on a consensual basis. It can exercise its jurisdiction in situations where the alleged perpetrator is a national of a state party to the ICC or where the crime was committed in the territory of a signatory state. 

Apart from that, the ICC can investigate international crimes in any country by the request of the UN Security Council (UNSC) or a prosecutor.

In 2015, acting under Chapter VII of the United Nations Charter, the UNSC decided to request the ICC to investigate conflict in Darfur, Sudan. And in 2011, the council referred the Libya crisis to the ICC and warned the ousted Libyan leader Muammar Gaddafi and his commanders against the vicious repression of protesters.

Afghan war crimes probe 

In November, ICC prosecutor Fatou Bensouda lodged a request to open a formal investigation into possible war crimes and war crimes against humanity in Afghanistan since May 1, 2003. The lengthy probe was first made public in 2007.

The move is said to be The Hague-based court's most complex and politically controversial investigation to date. It will be the first time possible crimes committed by US forces could be under the spotlight. 

Bensouda stressed that the Taliban and the affiliated Haqqani network, Afghan government forces and American troops as well as the CIA all appeared to have carried out war crimes since the Taliban government was ousted by a US-led invasion in 2001. The US invasion followed the September 11 attacks in 2001.

However, Washington, which does not recognise the ICC, threatens sanctions against the court if it goes ahead with prosecutions against US citizens. 

Prosecuting war crimes in Syria

The war in Syria has seen atrocities for seven years, ranging from the use of chemical weapons to the incarceration of people leading to countless deaths. There have been countless remarks for the Syrian case to be referred to the International Criminal Court by the UN Security Council because the country is not a party to the ICC.

However, the UNSC is hopelessly split both internally and externally over the Syrian war. It has been deadlocked over the case for years because of a stalemate situation with the council’s permanent member, Russia.

Rohingya crimes probe 

Recently, the ICC opened a preliminary probe into the Myanmar military’s crimes against Rohingya Muslims, including killings, sexual violence and forced deportations.

The UN has likened Myanmar's actions against the ethnic and religious minority to a genocide. The US and EU have sanctioned army officials but on a scale that is neither punitive nor preventive.

Read more about the sanctions against Myanmar here

The court will look at whether there is enough evidence to warrant a full investigation into the Myanmar military's assault on Rakhine state, which has seen some 700,000 people flee into neighbouring Bangladesh.

The Myanmar probe is a major advance for the ICC, which has so far largely focused on investigations into African conflicts.