International Criminal Justice and Atrocity

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Humans are capable of extreme cruelty and great compassion (Song 12). This is true and has been exhibited throughout the history of mankind. Numerous wars, rebellions, and revolutions have been reported all through history. These acts usually result in the casualty of many individuals, most of whom are innocent civilians comprising mainly of women and children. The end of the Second World War saw the establishment of international structures such as the United Nations and the International Court of Justice that aimed at safeguarding the rights of all individuals and ensuring that individuals are held accountable for their actions in an event of war.

From a critical point of view, it is evident that the international criminal court system has not achieved its overall aim of deterring and preventing crimes and atrocities. There is a school of thought that argues that one of the main reasons behind this failure is due to the limited jurisdiction that the court has about the cases that it can preside over. This paper will thus critically analyze whether International Criminal Justice (ICJ) is capable of deterring and preventing atrocities in a bid to determine whether or not the court has proper jurisdiction. To realize its goal, this paper will first focus on two types of crimes that the court can preside over; genocide and crimes against humanity. In this respect, a critical analysis shall be conducted on these crimes concerning the history, development, and they are handled by International Criminal Justice. Furthermore, this paper will also expound on the elements of these crimes, how they are committed, and the impact that they have on society at large. Based on the discussions presented, a conclusion will be arrived at on the effectiveness of International Criminal Justice in preventing and deterring and atrocities.

The Development of International Justice System

It was critical to ensure that the Nazi regime and its allies are held responsible for their actions during the Second World War. It also emerged that this regime had carried out ethnic cleansing of the Jew population in various parts of Europe that Germany had occupied. It was estimated that approximately 6 million Jews were killed as a result (Harwood 1). It was thus critical for the allies to ensure that justice is served, hence the establishment of the International Military Tribunal (IMT) in Nuremberg and Tokyo.

To further safeguard human rights, the United Nations Charter was developed as a tool for prohibiting aggressive warfare (Heselhaus 5). Additionally, the Human Rights Law was also developed and mandated by nations to safeguard the rights of their citizens as well as individuals within their territories. The International Humanitarian Law was also introduced to safeguard vulnerable individuals in the times of war and finally, the International Criminal Law was developed as a means of putting into account the individuals involved in atrocities and aggressive acts of crime (Safferling 1470). These considerations would have had a drastic impact on the deterrence and prevention of atrocities and violent crimes all around the globe. However, the onset of the Cold War put a halt to the development of International Criminal Law. The process of developing a strong International Justice System only commenced again after the end of the Cold War (Mieth 1). At the present moment, there have been a total of nine international criminal courts and tribunals (Smeulers 8). They include:

The International Military Tribunal (IMT)
The International Military Tribunal of the Far East (IMTFE)
The International Criminal Tribunal for Yugoslavia (ICTY)
The International Criminal Tribunal for Rwanda (ICTR)
The International Criminal Court (ICC)
The Special Court for Sierra Leone (SCSL)
The Extraordinary Chambers in the Courts of Cambodia (ECCC)
The Special Tribunal for Lebanon (STL)
The Special Panel of Dili in East Timor (SPD)

The ICC has always been considered an important milestone in the development of international criminal law after the development of the United Nations and the adoption of the United Nations Charter (Werle 1). Even though its development commenced after the Second World, it was not until July 1998 that a statute was passed in Rome that enabled nations to become parties to this court (Baros 58). Consequently, the ICC officially commenced its operations on 1^st July 2002 only after the 60^th nation had ratified the Roman statute. As of 2014, the nation has a total of 122 state parties that have recently increased to 124 (Sadat 1).

The International Criminal Tribunals (ICTs) have been given the jurisdiction to preside over four different groups of crime. First, they have the mandate to preside over genocide crimes (Song 4). This crime is common in almost every part of the globe and aims at attacking and killing individuals based on their ethnicity, nationality, racial background, or religion (Schabas 14). They also have the mandate to preside over crimes against humanity (Safferling 1470). This includes acts such as rape, murder, torture, slavery, imprisonment, and so on against the civilian population, especially with regards to women and children (Nkansah 75). The third group of crimes is war crimes that include the use of child soldiers, torture and killing of civilians and political prisoners as well as attacking places of worship, hospitals, historical monuments, and so on. The final jurisdiction is against the crime of aggression. As asserted earlier, this paper will only focus on genocide and crimes against humanity.

Genocide

As asserted earlier, genocide is one of the crimes that the international criminal law has the jurisdiction to preside over. Genocide, as an act, is characterized by the denial of the right to existence, through extermination or otherwise of individual groups of human beings. Genocide as a term is relatively new and was only coined after the Second World War. Before this, terms such as massacre and crimes against humanity were used to describe what we refer to as genocide today (Cryer et al. 205). In 1944, Raphael Lemkin coined the term genocide, deriving it from two Greek words; geno referring to tribe and caedere referring to the act of killing, to refer to the deliberate act of targeting and killing specific groups of individuals based on their racial background, tribe, religion or ethnicity to exterminate them completely (Cryer et al. 205). At the present moment, the most accurate definition of the term genocide as used by the ICC and other international courts and tribunals is found in Article II of the Genocide Convention and describes it as any of the acts below conducted with an intent of eliminating the existence of a specific group of individuals based on their religion, race, ethnicity, or nationality (Cryer et al. 205):

Killing individuals who are members of this group.
Instilling physical or mental harm to group members.
Exposing the group to extreme physical conditions to destroy it partly or as a whole.
Developing and implementing measures that aim at preventing the birth of newborns among group members.
Transferring the children of group members to a different group with the use of force.

At this point, however, it is critical to note that not all acts that are committed with the intent of exterminating a group as a whole or in part will amount to an act of genocide. It is only the acts contained in Article II of the Genocide Conviction that the ICC will consider as an actus reus of Genocide (Cryer et al. 213). Most importantly, this act does not need to result in the death of many individuals, even though the term victims have been used in the plural, but if any of these acts refer to the death of even one individual within the group, then the ICC will consider such acts as genocide.

One of the conditions that result in an act to be considered as genocide is the killing of a member. However, this term in itself has been considered controversial, especially with regards to its application in trying individuals against the crime of genocide by the ICC and other international courts and tribunals. In English, the term “kill” is used to refer to an act that results in the death of an individual (Cryer et al. 214). The ICC has directly adopted this definition and as a result, there has always been controversy to its application, especially with regards to the circumstances that led to the death of the said individual. Questions such as were the cause of death intentional, an act of accident, or an act of negligence usually comes up and has detrimental effects in the manner and direction a trial will take place. It is as a result of this fact that the ICC concluded that an act can only amount to genocide if the act of killing a group member, part of the group, or the entire group was intentional (Cryer et al. 205).

While most individuals usually relate the act of genocide with mass killings, there are other factors that Article II of the Genocide Convention considered as being consistent with the crime itself. One of these acts is inflicting serious bodily or mental harm to individuals who are part of the targeted group. The ICTR, for instance, considered sexual violence and rape as integral aspects of the Rwandan genocide (Cryer et al. 213). In the Eichmann case, on the other hand, the process of deporting victims, housing them in transit camps, and in ghettos, their enslavement and deprivation of human rights had tremendous physical and mental impacts that resulted in their overall death and destruction (Cryer et al. 214). These acts constitute genocide because they resulting in the deprivation and degradation of human rights as a result of exposing the victims to inhumane conditions and torture.

It is common for individuals who have the intention of committing an act of genocide to expose their victims to extreme physical conditions as a means of physically wearing them down before ultimately killing them. During the Holocaust, for instance, Jews and other targeted groups worked in concentration camps with minimal food, poor shelter, and extreme conditions as a means of slowly wearing them down before their demise. Even though the holocaust was not considered as an act of genocide because the term had not been coined at the time, its trial proceedings and outcomes were used to set the guidelines that were adopted by the international criminal law in preventing and ensuring such acts are not committed in the contemporary world and if they are, the procedures and guidelines that will be used in trying the perpetrators for their actions.

Another point of contention with this type of crime is the group that it protects. From the definition, it is clear that an act can only be considered as a crime of genocide if the targeted group comprise of either individual from a given race, ethnic background, nation, or religion. These are considered as protected groups (Cryer et al. 208). It is perhaps due to this fact that this law has always been criticized due to its narrow focus on the groups that it protects. There have been attempts to increase the range of groups that this law can protect with the suggestion of including political and other social groups, but these attempts have never been successful.

At the same time, it has been difficult to classify victims within the already set protected groups. During the ICTR, for instance, it was difficult to distinguish the Hutu from the Tutsi since they both were Rwandese citizens and shared a similar language and cultural practices. These two groups were only differentiated after it was found that Rwandese citizens needed to carry their national identification cards with them at all times and these cards clearly defined the ethnic background of an individual as either Hutu, Tutsi, or Twa (Cryer et al. 210). It is as a result of the difficulties and challenges presented in this segment that affects the overall ability and efficiency of the international criminal law to deter and prevent the crime of genocide.

Crimes Against Humanity

Crimes against humanity are considered as being as old as humanity itself. However, this term started gaining popularity during the 20^th century. Its first application in history was by the governments of Britain, France, and Russia (The Allies) who condemned the acts of the Turkish government against the Armenian population (Cryer et al. 230). Based on its act of crimes against humanity, the Allies asserted that members of the Turkish government will be held responsible for their crimes against humanity towards a civilian population. However, it was not until after the end of the Second World War that the first individuals were tried and persecuted on crimes against humanity charges during the International Military Tribunals at Nuremberg and Tokyo (Cryer et al. 230). During these trials, crimes against humanity were defined as:

Murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or prosecutions on political, racial or religious grounds in execution or connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated. (ICD 3)

After the Tokyo and Nuremberg trials, the progress of developing effective and efficient international law systems commenced. As a result, the International Law Commission (ILC) was charted by the then newly set up United Nations to develop laws and regulations that will aim at protecting mankind from deliberate acts that affect peace and promote insecurity. The ILC was to use the judgment and the outcomes of the IMT trials at Nuremberg and Tokyo as the basis of developing these new laws and regulations. Five decades down the line, this body came up with a proper definition of crimes against humanity; a definition that is currently accepted all around the world. It defined crimes against humanity as:

Murder, extermination, torture, enslavement, persecution on political, racial, religious or ethnic grounds, institutionalized discrimination, arbitrary deportation or forcible transfer of population, arbitrary imprisonment, rape, enforced prostitution and other inhuman acts committed in a systematic manner or on a large scale and instigated or directed by a Government or by any organization or group. (ICD 6)

Even though these definitions seem to have a lot of similarities to the IMT definition, it is evident that the 1996 definition states that the purported criminal acts can be committed on or before an event of war. This is a critical consideration since it establishes the fact that the inhumane acts need not be conducted in nexus to armed conflict. This is a critical consideration as it shows the evolution of the laws of this crime. In the ICTY, for instance, the IMT definition of crimes against humanity was applied and thus only the inhumane acts that were conducted before or during the war in the former Yugoslavia were considered and tried in these proceedings (Smeulers 22).

ICTR, on the other hand, applied the current definition of crimes against humanity and made it not mandatory for these crimes to have been committed before or during an armed conflict, but instead, they had to be systemic acts directed towards a civilian population (Smeulers 25). It is therefore evident that the fact that the conflict in Rwanda was internal, the resultant acts of crime would not have qualified to be considered as acts of genocide if the nexus to war approach was used in the definition of the crime of genocide.

Furthermore, inhumane acts need not be conducted in a discriminatory manner for them to be considered as crimes against humanity (Cryer et al. 235). During the ICTY proceedings, the discriminatory approach was used to ensure that consistency is achieved with the Nuremberg trials. However, the ICTY Appeal Chamber and the ICTR eliminated the discriminatory approach towards these attacks. Another area of contention in this type of crime is the term “attack”. In other forms of crime, this term is used to refer to armed forces. However, under the war against human crimes criteria, this term refers to broader forms of conduct of acts that go against the stipulations of the international customary law and can include acts such as mistreatment of the civilian population (Cryer et al. 237). Consequently, there needs to be at least more than one attack or more than one victim of an act to be considered as a crime against humanity. However, these attacks need not be similar, conducted by the same individuals or affiliated groups, or the requirement of any form of relationship among the victims.

Finally, the victims of crimes against humanity have to be from any civilian population. This not only includes the attack of the civilian population of an enemy state but also attacks by a state or statesmen against their subjects. This makes the national affiliation of a civilian to be irrelevant with regards to this type of crime. There has also been contention with the definition of the words civilian and population concerning the crimes against humanity. Following the stipulations of this law, the term civilian is used to describe individuals who are not combatants while the term population is used to refer to the large body of victims of specific attacks (Cryer et al. 241).

There have however been arguments that certain attacks on military personnel should be considered as crimes against humanity. Antonio Casse, for instance, argued that the attack of military personnel outside combat situations should be considered as crimes against humanity (Cryer et al. 241). However, these arguments have never been successful since attacks on human populations can only be considered as war crimes if they targeted population comprised of civilians. However, there have been exceptions to this rule in several cases. For instance, if a certain population is attacked and mainly comprised of civilians with a few military personnel, it will be considered as a crime against humanity. Consequently, the term civilian also accommodates all those individuals who are entirely not taking part in the attacks in the event when the purported acts were committed. This includes military personnel and other combatants who might have been decommissioned or not taking part in the attack because they might be captured or injured.

The Role of International Criminal Law in Preventing and Deterring Genocide and Crimes against Humanity and the Challenges it Faces

ICJ uses different approaches such as deterrence, timely intervention, stabilization, and normalization to prevent the occurrence of future crimes. No standard method has been developed to measure deterrence (Song 6). Furthermore, it has been difficult for ICJ systems to determine the impact of deterrence in these kinds of crimes due to the unique nature of every case, especially given the fact that their historical and political backgrounds (Song 7). Atrocity crimes have varied causality factors and hence it is difficult to pinpoint a single one as the cause of deterrence.

However, the effects of deterrence are present and have played a significant role in reducing atrocities all around the world. For instance, the ICC has issued arrest warrants to high profile individuals such as heads of states (Ginsburg 500). Omar al-Bashir of Sudan and Uhuru Kenyatta of Kenya are prime examples. This act was influential in preventing the eruption of violence in the Democratic Republic of Congo during its November 2011 elections largely due to the prosecution of politicians and civilians by the ICC in Kenya as a result of their involvement post-election violence in Kenya (Song p. 7). This act has thus proved that every individual, irrespective of his/her socio-political status, is accountable to his/her actions before the ICC and other international court systems (Sikkink and Kim 270).

Timely intervention is an approach used by the ICC, more specifically, by the Prosecutor, to threats of crimes that have been detected at an early stage (Song 7). Under his/her preliminary examination role, the Prosecutor constantly monitors developments that take place across member states of the ICC. Another aim of the ICJ system is to ensure that long-term peace and stability are realized in addition to punishment. ICJ systems extensively use the stabilization approach to realize this goal (Song 8). From research, it is evident that recurrent violence comes along due to acts of vengeance by victims of violent crimes and atrocities (Keller 195). The World Development Report that was released by the World Bank in 2011 pointed out transitional justice as one of the main ingredients of overcoming recurring violence in any given setting (The World Bank 166).

Therefore, to deter such acts, the ICC heavily relies on the participation of victims, not exclusively as witnesses, but also as actors in the proceedings of cases that they have been affected in one way or the other with special emphasis on women and children (Baumgartner 410). This approach came about as a result of the failure of the ICTY and ICTR to connect with the victims as their only interaction with these courts were as witnesses of the crimes that were being persecuted based since these courts mainly focused on retributive and not restorative justice (Schabas 535). Retributive justice has proven to be an effective tool in deterring future crime since it not only punishes the guilty parties but also ensures that the views of the victims are considered in deciding cases and also in the reconciliation process.

Through its normalization approach, ICJ systems have been able to develop approaches that aim at internalizing legal and moral norms that make the crimes stipulated under the Roman statute and criminal courts and tribunals punishable and unacceptable within the global society in a bid to protect the fundamental human rights and dignity hence deterring crime (Ambos 65). To ensure this is achieved, there has been an emphasis on proper education, democracy, and adherence to the terms of set treaties are critical considerations that need to be put in place. The complementarity approach by the ICC, for instance, aims at ensuring that all ICC crimes are punishable under their national laws and as such local/territorial courts will have the mandate to investigate and prosecute violations of humanitarian law (Ambos 65).

Despite its goal of deterring and preventing future crimes and atrocities, some arguments have been presented indicating that the international justice system incapable of achieving this goal. The fact that this system is highly dependent on cooperation among member states makes its operation difficult, especially with regards to the enforcement of court orders such as warrants of arrest, provision of evidence, and so on (Ambos 59). The ICC and ICTs do not have their police force or law enforcement agencies and as such, they rely exclusively on the efforts of member states to perform these acts on their behalf. For instance, the ICC has an active warrant of arrest against the Sudanese President, Omar al-Bashir, who has been present in nations that fall under the jurisdiction of the ICC but respective governments have made no arrests.

The fact that International Criminal Justice cannot be applied universally also diminishes the role played by this system in deterring future atrocities and violent crimes. For instance, even though 124 nations have ratified the Roman statute and are now parties to the ICC, approximately 40% of the nations in the globe are not members (Sadat 1). This includes big powers such as the United States of America, Russia, and China who do not recognize the existence of the ICC (Palmer 2). This fact greatly undermines the global operation of the court.

There is also the school of thought that believes that ICJ systems are incapable of achieving absolute deterrence. This phenomenon occurs merely because the justice system, in general, cannot completely get rid of criminal activities in a given setting because criminals tend to breach the law and the rights of other individuals despite the presence of legal sanctions that can be imposed to them based on their activities (Ambos 66). With this in mind, supporters of this school of thought do believe that the deterrent nature of the ICC and ICTs is important but limited. Instead, it is argued that the Criminal Justice System should aim to neutralize actions of the perpetrators through restraining and suppressing violent violations other than focusing on deterring prospective violations.

Conclusion

Genocide and crimes against humanity have had severe impacts on the human population. To safeguard mankind from these sufferings, the international criminal law has developed rules and procedures that have resulted in the incorporation of courts and other judicial systems such as the ICC to ensure that basic human rights are recognized and respected. However, after critical analysis, it is evident that international criminal law has weaknesses that affect its ability to deter future crimes and atrocities. Therefore, to prevent and deter future crimes, and atrocities use deterrence, international criminal law needs to improve its approaches towards timely intervention, stabilization, and normalization. Through its operations, however, international criminal law has proven that it can prevent and deter future acts of Genocide and crimes against humanity.

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