The ICC has also been heavily criticised for promising too much and delivering too little.
Modern international criminal law was born after the Second World War, when the Allied powers sat in judgment over the crimes of the Nazis in the trials at Nuremberg. Justice Robert Jackson remarked in his opening speech at the tribunal, “that four great nations, flushed with victory and stung with injury, stayed the hand of vengeance, and voluntarily submitted their captive enemies to the judgment of the law is one of the most significant tributes that power has ever paid to reason”. The promise of international criminal justice was set from that point and it was set rather high; not only was it to deter future violators and morally denounce such conduct, it was also to create lasting peace and promote national reconciliation.
The question of whether criminal accountability can achieve those aims is now laid at the feet of the International Criminal Court. In particular, its critics argue that it must ensure that it is not only those on the losing side of the war who get prosecuted, others take issue with the aims themselves, that the notion that peace cannot exist without justice is itself false, as ‘[t]he offer to a terrible dictator—go away and live out your life in an obscure village— cannot be persuasively offered, as it may be trumped by an [International Criminal Court] prosecution. If mediators can only say that he’s a dead man either way, he will probably prefer to die in his boots than expire in a pin-striped suit at The Hague.’ If the prospect of prosecution means that ‘terrible dictators’ are more likely to cling to power, then the pursuit of justice may itself trump peace.
Victors’ Justice?
Former ICC Prosecutor Fatou Bensouda notes that the Nuremberg and Tokyo Trials after World War II laid the bricks for a global system based on the international rule of law. The long arc of justice that started in Nuremberg, she says, then continued towards Rome (where the treaty to establish the ICC was formulated). However, many argue that the trials of German and Japanese leaders by the Allied powers were themselves a form of victors’ justice, and that that arc too continues to today.
After World War I
Traditionally international law was addressed to states and while there were some instances of individual violators being punished (such as the Von Hagenbach trial of 1474 and the French-Siamese Arbitral Tribunal in 1893-4) and there was some domestic law punishing violations of the laws of war (such as the Lieber Code 1863), by and large individuals were outside the purview of the law (apart from arguably pirates in the 17th century). There was a renewed emphasis on individual responsibility following World War I where the Treaty of Versailles included four articles providing for the punishment of those who had violated the laws of war.
Raymond Poincaré, the French President, announced to the victors at Versailles that “[h]umanity can place confidence in you, because you are not among those who have outraged the rights of humanity.’ At the same time, the Belgians, French and British (all included in ‘humanity’) were responsible for three centuries of ‘sometimes violent, certainly racially-inflected, Empire’. Still, no trials were ever held under the Treaty of Versailles and while the agreement sought to prosecute the Kaiser of Germany, he had fled to the Netherlands and his surrender was not requested.
After World War II
Post-World War II, however, individual responsibility for the Axis powers was preferred by the United States and France over the summary executions favoured by the British and the Nuremberg and Tokyo Trials were held. The judges at Nuremberg noted that “[c]rimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced”. Articles 1 and 6 of the London Charter establishing the Nuremberg trial noted that any person committing an act in violation of international law is criminally punishable. Ultimately, twenty-two leading Nazis were tried for war crimes, crimes against humanity, and crimes against peace; twelve were sentenced to death, seven received jail terms and three were acquitted.
There were several criticisms of the trials. Detractors called them ‘high-tech lynching’ because it was only the victors trying the vanquished in what was essentially a pre-determined proceeding, in that the leading Nazis were almost certain to be found guilty. Moreover, it was argued, particularly by the Indian Justice Radhabinod Pal in the Tokyo Trials, that “the tribunal was a sham employment of legal process for the satisfaction of a thirst for revenge.” He argued that the atomic bombings of Hiroshima and Nagasaki were the worst crimes committed during the war, comparable with the Holocaust, and yet there were no prosecutions for those crimes. However, the Nuremberg trial was hailed as a victory of reason over vengeance, and modern international criminal law was born.
Other International Criminal Tribunals
Since Nuremberg, there have been tribunals established by the United Nations’ Security Council under its mandate to maintain international peace and security. These were the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). The ICTY’s conviction of Duško Tadić made him the first non-Nazi to be tried before an international criminal court in Europe since 1946, and he was one of the first non-Nazis to be tried anywhere for crimes against humanity. Both of these tribunals have, however, been criticised. The ICTR did not prosecute individuals who were connected with the then-government of Rwanda and the ICTY was noted for having viewed ethnic groups in terms of victims and perpetrators rather than focusing on individuals and their conduct. Moreover, United States’ President Bush tied the handing over of former Serbian President Milošević to aid for Yugoslavia, furthering accusations of political bias.
The International Criminal Court
In 1998, the Rome Statute created the only extant and permanent international criminal court to be established under a multilateral treaty. The ICC came into being on July 1, 2002 and state parties accept the jurisdiction of the Court for the crimes of genocide, crimes against humanity, war crimes, and aggression. The ICC has also been heavily criticised for promising too much and delivering too little. In the fifteen years after it was established, it had cost between 80 to 140 million Euros, with 300 staff, and had only brought ten cases, securing five convictions with one overturned on appeal. If its success was judged on the number of convictions secured it may be asked whether it is worth it given the enormous resources poured into the institution. Though it is also arguable that the mere fact of acquittals may indicate that the process is fair, particularly given the high burden of proof for such crimes.
Others argue in favour of other means of justice apart from criminal accountability. In particular they point to South Africa after the fall of apartheid, where prosecutions were generally not held. Instead of adversarial proceedings, there was a Truth and Reconciliation Commission, in which the evidence of what had occurred during apartheid was recorded for the public record. Instead of determining guilt, victims wanted what had happened to their loved ones to be publicised. In doing so, they endeavoured to educate generations to come and preserve the historical record of the crimes that had occurred, rather than holding criminal trials.
Today, for the first time, the ICC is looking into a situation, and issuing arrest warrants for the head of state, of an ally of the West. It is its chance to show that international criminal justice is not simply a case of victors’ vengeance. The crimes conducted by the leaders of Israel after October 7, 2023 also give the court the chance to prove that the path to peace is through justice.
This article by Ayesha Malik was produced with the support of the International Committee of the Red Cross (ICRC) as part of the Legally Speaking podcast series. The views expressed are the author’s own.