Will it be needed in Asia?
The
International Criminal Court was established in 2002 to act as a permanent
tribunal for heinous international offenses including crimes against humanity,
genocide, war crimes, and more recently, crimes of aggression.
Unlike
the International Court of Justice—the judicial branch of the United
Nations—the scope of cases, jurisdiction and mandate of the ICC are extremely
narrow. Given its limited function, it is not surprising that the ICC has only
opened seven cases and indicted 28 people. The utility of such a court has been
the subject of much debate and continues to spark controversy in political,
military and academic circles.
The
court has never taken on an Asian case. But there could come a time when it
might. Human rights organizations have condemned government actions in the
past, and at least two Indonesian generals, Wiranto and Prabowo Subianto, have
been accused of orchestrating mass murders in Timor Leste and Indonesia. The
Rajapakse government in Sri Lanka stands accused today of the disappearance of
thousands of Tamils in the country’s decades-long civil war.
Throughout
the 20th Century, the international community contemplated the establishment of
a permanent tribunal as a means to bring justice for serious international
crimes and to hold accountable the perpetrators of those crimes. Particularly
after WWII, and then again following the genocides in the former Yugoslavia and
Rwanda, the outrage against these criminals drove many countries to take
action. Ad hoc tribunals were established to hold accountable those responsible
for war crimes and massive ethnic killings. Although these temporary courts
were deemed successful in their limited scope, further atrocities demanded
consideration of a permanent judicial body that could potentially deter future
crimes. The following are brief descriptions of the ICC’s current pending
cases:
The
atrocities in Uganda, led by Joseph Kony and his Lord’s Resistance Army,
prompted an investigation by the ICC and the arrest of several Ugandan
officials. On July 8, 2005, the ICC indicted Kony, Raska Lukwiya, Okot
Odhiambo, Dominic Ongwen, and Vincent Otti on 21 counts of war crimes and 12
counts of crimes against humanity. In this situation, the ICC has been unable
to proceed because two of the accused are dead and the other three are listed
as fugitives.
The
next case referred to the ICC involved the situation in the Democratic Republic
of Congo. The investigation includes war crimes, crimes against humanity and
genocide. Of the five people indicted by the court, Thomas Lubanga Dyilo,
Germain Katanga, Mathieu Ngudjolo Chui, Bosco Ntaganda and Callixte
Mbarushimana, only the first three are currently on trial in the Hague.
After
conflict escalated in the Darfur region of Sudan, the Security Council of the
UN referred the situation to the ICC. After further investigation, the ICC
indicted seven individuals for war crimes, genocide and crimes against humanity.
Although Ahmed Haroun, Ali Kushayb, Omar al-Bashir, Bahar Abu Garda, Abdel
Rahim Mohammed Hussein, Abdallah Banda, and Saleh Jerbo have all received
indictments, only the latter two have voluntarily appeared in court.
Jean-Pierre
Bemba, former vice-president of the DRC, was indicted by the ICC for war crimes
and crimes against humanity committed in the Central African Republic between
2002 and 2003. An ongoing investigation by the ICC into the atrocities
committed by President Ange-Félix Patassé of the Central African Republic
continues.
The
2007-2008 post-election violence in Kenya sparked investigation by the ICC,
after Kenyan judge, Philip Waki, determined that the government was unwilling
to seek legal action for horrific crimes following the presidential elections.
The ICC indicted six individuals, known as the “Ocampo Six” after the ICC
Prosecutor, for crimes against humanity. Proceedings are ongoing.
The ICC
recently indicted Muammar Gaddafi, Saif al-Islam Gaddafi, and Abdulla Senussi
of Libia for war crimes and crimes against humanity. The case, referred to by
the UN Security Council, is ongoing.
The
president of Cote d’Ivoire, Laurent Koudou Gbagbo, became the first head of
state to be taken into ICC custody in late 2011. The pre-trial phase of his
case began and hearings are set for June 18, 2012.
Regardless
of how a situation arrives at the ICC, the international community seems to
have found a method for addressing seriously egregious crimes occurring on an
international scale. In order for the ICC to be even more effective,
non-governmental organizations such as the Coalition for the International Criminal
Court (CICC) are working toward worldwide ratification of the
ICC.
The
Rome Statute established the International Criminal Court in circumstances
where states are unable or unwilling to resolve serious international crimes.
The ICC can have jurisdiction over a case in one of three ways: if the UN
Security Council refers the situation to the ICC; if the accused is a citizen
of a signatory state; or if the crime was committed in the territory of a
signatory state. Universal jurisdiction was
sought for the ICC, but the United States strongly opposed granting such broad
powers and was not a signatory to the Rome Statute.
Several
concerns arose regarding diminished state sovereignty, interference in foreign
policy and potential prosecution of high-level political and military
officials. Although such concerns so far appear unfounded, it remains to be
seen how effective the ICC can be without a long-term commitment from the
United States. Nevertheless, the court continues to press forward in its
current endeavors to bring those accused to justice.
It is
difficult to determine whether this relatively new institution can meet its
objectives. Some opponents of the ICC suggest that because the court lacks a
police component, it also lacks the authority to enforce its decisions. This
deficiency has been most evident in the ICC prosecutor’s inability to require
states to extradite fugitives. In reality, an ICC indictment is only as
meaningful as the member state’s willingness to enforce it. Additionally,
though the Rome Statute established a detention facility in The Hague for
housing accused individuals awaiting trial, the facility was not intended for
convicted prisoners. Much of the ICC’s credibility still depends on the legal
precedents it will establish in the conviction phase of its current trials.
For
example, in a landmark decision on March 14, 2012, the ICC found the former DRC
commander Thomas Lubanga Dyilo guilty of war crimes. As the first conviction
for the court, human rights advocates celebrated the decision as a historical
step in promoting justice for children and other victims of such atrocities.
Since the sentencing phase still remains, it may be too early to tell whether
this conviction will translate into actual punishment. It will be up to the ICC
and the DRC to agree on a place to carry out the sentence, which may include
life in prison. As with any justice system, there will be imperfections that
may require policy adjustments. However, if the ICC has increased international
cooperation in minimizing crime, most contend that the court’s efforts are
worthwhile.
Jessy
Jay
Asia
Sentinel
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