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International Justice Day – A Contradiction in Terms?

Today, the ICC remains a fair, independent judicial body that respects the highest standards of justice. It is not a body of the United Nations.

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Lady Justice background [Photo: Tingey Injury Law Firm]

“A person stands a better chance of being tried and judged for killing one human being than for killing 100,000.”
— José Ayala Lasso, former United Nations High Commissioner for Human Rights

The Issue

World Day for International Justice; International Justice Day; Day of International Criminal Justice falls each year on 17 July, remembering  the day in 1998 when The Rome Statute –  the constitutional document that established the International Criminal Court (ICC) – was adopted,   making that day the official “Day of International Criminal Justice”. The ICC is the official institution which works toward bringing justice to those who have suffered injustice and focuses in particular on dispensing justice to the victims of war crimes, genocide, terrorism, and other crimes against humanity. The ICC distinguishes itself from the International Court of Justice (ICJ)  in that the ICC can prosecute individuals and prescribe and impose punitive measures against those found guilty  whereas the ICJ can only hand down decisions and opinions without the power to ensure reparation or punishment.  Another difference between the two courts is that the ICC prosecutes individuals whereas the ICJ hears disputes between States.

In performing its functions, the ICC promotes the rule of law and applies it to preserve and protect human rights while denying  impunity to the aggressor.

The theme of World Day for International Justice 2023 is “Overcoming Barriers and Unleashing Opportunities for Social Justice“. Nobel laureate Archbishop Desmond Tutu once said: “ If you are neutral in situations of injustice, you have chosen the side of the oppressor. If an elephant has its foot on the tail of a mouse, and you say that you are neutral, the mouse will not appreciate your neutrality.” This year, the proverbial mouse would like to see how barriers could be overcome and opportunities for social justice unleashed.

Article 1 pf the Statute of Rome establishes  the ICC and prescribes that it is  a permanent institution and has the power to exercise its jurisdiction over persons for the most serious crimes of international concern as identified therein and its function and being must be complementary to national criminal jurisdictions. The jurisdiction and functioning of the Court are governed by the Statute. 

So far so good.

Article 4 then goes on to say that the ICC has an international legal personality and has the legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes. In pursuance of this status quo the ICC may exercise its functions and powers, as provided in the Statute, “on the territory of any State Party and, by special agreement, on the territory of any other State”. The ICC may initiate action under Article 13 of the Treaty if there is a  situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party ; a situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; or the Prosecutor has initiated an investigation in respect of such a crime the conditions of which are prescribed in the treaty

Article 4 ipso facto circumscribes the Court and effectively precludes it from exercising its jurisdiction on a State which had not ratified the Treaty of Rome unless a State willingly submits to the jurisdiction of the Court  or if the case is referred to the prosecutor by the United Nations Security Council . This is in contrast with the all-encompassing statement in the Preamble  which declares that the purpose of the ICC is “to act against impunity for the most serious crimes of concern to the international community as a whole and which is complementary to national criminal jurisdictions”.

42 States (among which are s are Israel, Qatar, Iraq, and Libya which chronicle a turbulent past) had not ratified the treaty (in 2019) and are therefore immune from the jurisdiction of the ICC. As for the United Nations Security Council there are three countries – United States, China and Russia – that are not members and can exercise their power of veto if a vote is taken to refer a non-member State to the ICC.

So how can barriers be overcome and opportunities for social justice be unleashed?

Although it is incontrovertible that the ICC has been diligent in its many  prosecutions, this fundamental flaw and the Court’s  perceived proclivity towards leaning towards prosecuting aggression in Africa has left the international community ambivalent towards the Court.  One writer says: “The ICC has been called inefficient and biased, and former state members of the court actually decided to stop cooperating with it. There’s a quote from the ICC’s ex-president Silvia Fernández that it’s worth mentioning: “International criminal justice is a long-term project,” but as much as it sounds logical it’s still a hard pill to swallow for the victims of crimes against humanity.

The History

It is ironic that the true intent of the initiators in establishing the ICC was to ensure justice that addresses outrageous and egregious violations of human rights throughout the world.  The then Secretary General of the United Nations Kofi Annan observed at the establishment of the Court: “In the prospect of an international criminal court lies the promise of universal justice. That is the simple and soaring hope of this vision. We are close to its realization. We will do our part to see it through till the end. We ask you . . . to do yours in our struggle to ensure that no ruler, no State, no junta and no army anywhere can abuse human rights with impunity. Only then will the innocents of distant wars and conflicts know that they, too, may sleep under the cover of justice; that they, too, have rights, and that those who violate those rights will be punished.” 

He went on to say “”For nearly half a century — almost as long as the United Nations has been in existence — the General Assembly has recognized the need to establish such a court to prosecute and punish persons responsible for crimes such as genocide. Many thought . . . that the horrors of the Second World War — the camps, the cruelty, the exterminations, the Holocaust — could never happen again. And yet they have. In Cambodia, in Bosnia and Herzegovina, in Rwanda. Our time — this decade even — has shown us that man’s capacity for evil knows no limits. Genocide . . . is now a word of our time, too, a heinous reality that calls for a historic response.” 

Secretary General Annan refers to “the promise of universal justice”. The ICC was established as a court of last resort to bring justice to those who did not have access to their national courts.  The evolution of international justice has its genesis  in post-World War II, where two grave incursions into the safety and sanctity of human life were recognized by the international community of nations – the international community – for the first time in history – took steps towards recognizing two international crimes: the crime against humanity; and genocide.  This led to the United Nations adopting the Convention on the Prevention and Punishment of the Crime of Genocide in 1948.  After the fall of the Berlin Wall in 1989 discussions revolved round a permanent court and in the 1990s the United Nations established special courts to adjudicate on crimes in former Yugoslavia (1993-2017); Rwanda (1995-2015 and Sierra Leone (2002-2013).  The ICC sat for the first time in 2002 after its seat was established in The Hague.

Today, the ICC remains a fair, independent judicial body that respects the highest standards of justice. It is not a body of the United Nations.

A Solution to the Conundrum?

The conundrum is that the ICC does not have universal jurisdiction despite the intention of its initiators in 1998.  Yet, the theme “Overcoming Barriers and Unleashing Opportunities for Social Justice” stares one in the face,  bringing to bear the question: “how could we overcome the barriers that exist?  Propagating such a slogan without the offer of how this could be done does not help anyone, certainly not the proverbial rat whose tail is under the elephant. The only way around Article 13 of the Rome Treaty  seems to lie with a revision of   authority of the United Nations Security Council and the veto power of its members together with a drastic increase in the ratification of the treaty.

Benjamin Franklin famously said once: “Justice will not be served until those who are unaffected are as outraged as those who are.” Sadly, those of us unaffected are still dragging our feet.

Ruwantissa Abeyratne

Dr. Abeyratne teaches aerospace law at McGill University. Among the numerous books he has published are Air Navigation Law (2012) and Aviation Safety Law and Regulation (to be published in 2023). He is a former Senior Legal Counsel at the International Civil Aviation Organization.

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