Introduction
The idea to bring to trial political leaders regarded to be responsible for war crimes was first mooted during the treaty of Versailles or the Paris Peace Conference of 1919 after the cessation of the 1st world war. ( )This task was given to a special commission of experts established in 1919 to deal with matters of persecution of war crimes that were supposedly committed during the first world war. ( ) The body of experts was known as the Commission of Responsibilities. ( )Under the umbrella of the League of Nations, another conference held in Geneva in 1937 also attempted to address the issue but nothing substantial came out of this. Due to the ineffectiveness of the League of Nations, and the compelling need amongst the then world powers to find a lasting solution to international peace, the United Nations was born. ( )
The Seeds of the International Criminal Court
One of its principal organs, the General Assembly, was commissioned to provide a forum where all member nations would get equal representation. It was this body of nations that in 1948, first recognized the imperatives for a permanent international court that would specifically deal with atrocities of the magnitude of those committed during the 2nd world war. ( ) This realization became all too apparent after the actions of the Allies between 1945 and 1947. The Allied forces, the victorious side in the 2nd world war, conducted a series of military trials in Nuremberg that prosecuted the top echelon of the Nazi. ( ) One particular trial known as Trial of the Major War Criminals, under the auspices of the International Military Tribunal (IMT) must have significantly contributed to the origin of what is today the International Criminal Court. ( ) A similar trial called the Tokyo War Crimes Tribunal was conducted in the Far East to try leaders of imperial Japan deemed to have conspired to participate in the war.
The first real attempt to form an international court was made by the General Assembly in early 1948 when it established the International Law Commission for the ``promotion of the progressive development of international law and its codification’’. ( ) In the early 1950s, two statutes were drafted by the International Law Commission at the behest of the General Assembly but these were archived. Continued state of military tension, incessant political conflicts and fierce economic rivalry between the Soviet Union and her Satellite states on one hand and the Western world on the other, made it politically unrealistic to form a criminal court of international stature. ( )
However, these drawbacks did not impede efforts by advocates of justice towards establishment of an international system of criminal jurisdiction. One such advocate was Benjamin B. Ferencz who investigated crimes committed by the Nazi after the end of World War II, and who was also the chief prosecutor for the US army at the Einsatzgruppen Trial. ( ) He strongly lobbied for the establishment of an International Criminal Court based on international rule of war. In a book he published in 1975, called ``Defining International Aggression –The Search for World Peace’’, he strongly argued in favor of establishing an international court. ( ) No one seemed to take the legal implications of this to the international community seriously at the time. So time elapsed in a state of lethargy with regard to meaningful activities towards this goal. But in 1989, the idea got impetus from an unexpected quarter in form of A. N. R. Robinson, the then Prime Minister of Trinidad and Tobago. ( ) Ironically, he was not interested in war crimes but establishment of an international court to help curb the global menace of narcotics trade. While a draft statute was being prepared, the international community too created ad hoc tribunals in 1994 to deal with war crimes after the genocide in Rwanda and the atrocities committed in former Yugoslavia. ( ) More than any other event, this move clearly indicated the need for the establishment of a permanent international criminal court.
A protracted period of international intrigue and delicate negotiations followed, but in June 1998 a conference convened in Rome by the General Assembly determined to finalize and establish a treaty. ( ) This led to the adoption of the Rome Statute of the International Criminal Court on 17th July 1998. On 11th April 2002, the Rome Statute of the International Criminal Court was made a binding treaty. After its ratification by sixty countries, on 1st July 2002, the statute received the stamp of approval and legally came into force. Thus the International Criminal Court (ICC) was promulgated.
Challenges the ICC Faces Currently
The ICC, established by the coming into legal force of the Rome Statute of the court, opened a new chapter in the international legal frame work of criminal justice system. ( ) It is the first international legal institution with the capability of prosecuting individuals suspected of committing the most despicable and atrocious crimes against humanity. Its first indictment and subsequent trial began in Africa when the former rebel leader from Congo, Thomas Lubanga, was arrested and later put to trial in 2009. Next, another arrest warrant for war crimes was issued against the Sudanese president, Omar Al-Bashir also in the same year. The trial of Thomas Lubanga has been conducted in a theater of legal acrimony and an unsavory working relationship between the judges and the prosecutor. The conclusion of this trial is clearly no where on the complicated international legal horizon. This is an indication that the ICC is facing a serious challenge of credibility. ( ) Faced with evidence disclosure problems at this initial stage, the courts capability to bring to trial all individuals against whom indictments and warrants have been issued is highly questionable. The slow pace of trial on the background of international clamour for results poses a grave crisis of confidence in the institution. Cases successfully brought to completion and the amount of on-going proceedings will determine the stature of the court.
Legal work in the corridors of ICC faces many impediments, least of which is the ability to circumvent around and infuse varied legal systems from diverse cultures to fit into its own proceedings. ( ) Besides this, for the first time in the history of international trials, victims are allowed to participate in the proceedings. This presents a tricky situation as can be demonstrated by victims who have retracted their evidence. Successful implementation of this practice is yet to be seen. ()
The other challenge the ICC faces is something of a paradox. Where as the court needs the financial and political support from the international community, especially from the most powerful nations; it is perplexing that the US, China and Russia – all permanent members of the UN Security Council, are opposing the jurisdiction of the court. ( ) The stance of these big three is perhaps the greatest challenge the ICC is facing today. Which other nation is better placed to strengthen this institution than the US?
One way the ICC envisaged to help expedite trials was for member states to initiate their own trials against individuals accused of committing crimes against humanity which fall under the jurisdictional power of the ICC by establishing local tribunals based on the model of, and overseen by the international court itself. ( ) This means the court in itself cannot end crimes against humanity By developing a complementary legal framework bringing together principles of the Rome Statutes and the case law of different states, perhaps a unified system of international law against war crimes can be established so that where national jurisdictions fail, or is unwilling or incapable to carry out trials, then the ICC can easily step in ( ) But again, this is a possibility whose enactment is far from today. This means that lack of effective results will continue to dent the image and tarnish the prestige of the ICC in the eyes of the international community. ( )
Conclusion
From the end of the 1st World War to the present time, the world has grappled with the problem of war crimes and crimes against humanity without any substantial measure of an internationally acceptable legal framework. Due to diversity of national interests, states will continue to take different positions in issues of international jurisdiction. ( ) As it happened from the beginning, economic rivalries and military suspicions will continue to wedge a rift between nations even in serious matters of protecting the sanctity of life. The existence of institutions like the international criminal court will not provide an ultimate solution to prevention of heinous crimes, rather, prevention at state level or trial will go along way into ensuring immediate justice for victims of such crimes. It is therefore of prime national and international interest the states do every to prevent situations that can lead to war crimes.