Genocide, Massacre and Other Human Rights

Introduction

The international criminal court is a permanent judicature that has been set up to try individuals for war crimes, crimes against humanity, and genocide. As from 2017, the court will also be prosecuting individuals or parties for crime of aggression, a crime that has been considered to be the source of all atrocities. The court began operating in July 2002 after the enactment of the Rome Statute of the International Criminal Court. As such, only the crimes committed on or after the 1^st of July 2002 can be admitted for hearing. Although the court is headquartered in The Hague, Netherlands, its officials may relocate criminal proceedings to any location in the world, as the situation may demand. For instance, whenever the Court wishes to summon a large number of witnesses on short notice, officials may decide to hold the proceedings at a location near the witnesses. Additionally, the Court officials may be necessitated to visit crime scenes frequently.

The Rome Statute of the International Criminal Court has defined Crime against humanity as attacks on human dignity. Other definitions include degradation of an individual or a group of individuals, as well as grave humiliation of persons. These crimes include murder, torture, extermination, and rape. Nevertheless, for the crimes to meet the threshold of crimes against humanity, they must have been systematic and widespread. As such, an individual who perpetrates a few of these offenses, or takes part in an offense where a few unarmed civilians suffer may be found guilty of crime against humanity. This is especially true when it is established that his behavior was consistent to those of his accomplices in situations where widespread atrocities have been committed. In this case, the intent or planning to execute genocide is regarded in the same way as the actual execution of genocide and other crimes against humanity.

The Jurisdiction of the Court

While determining the threshold of crime against humanity, the International Criminal Court evaluates the atrocities committed in an endeavor to determine whether they fall under a consistent pattern, or an overall policy of an act of inhumanity. Should the court determine that the acts were sporadic; the case involving them may be referred to the national judicial systems, irrespective of their wickedness or cruelty. This provision was made in an attempt to enhance the acceptability of the Court. Had the Court reserved the rights of prosecuting cases indiscriminately, several states would have voiced their opposition in an endeavor to avert the loss of their sovereignty. They, however, provided enough avenues to the Court to enable it craft historical understanding of the crimes against humanity.

Currently, the Rome statute has been ratified by about 120 countries, with Europe, Africa, and South America assuming the initiative of advancing the court’s object and purpose. Some signatories are yet to ratify the statute, and as such, they are under no obligation to aid the International Criminal Court in its operations. However, the states are prohibited from interfering with the court’s object and purpose. In such way, signing the Rome Statute binds states like Russia and Ivory Coast to a requirement of allowing the court to proceed with its operations without hindrance. The Court, therefore, is at liberty to unearth the history of events relating to the crimes against humanity, even if some of them took place in states that are yet to ratify the statute.

Other states like the United States, Sudan, and Israel have unsigned the treaty recognizing the Rome Statute. In this case, the three states are under no obligation to abide by the promises of their former signatories to the statute. They can, therefore, prevent the court officials, or any other party, from investigating and prosecuting their citizens. Additionally, crimes committed in their jurisdictions cannot be investigated by the ICC. Neither by signing nor by accepting the Rome Statute, countries like India and China have denied the International Criminal Court jurisdiction over their territories. This denies the ICC the information it needs in crafting the historical understanding of the crimes committed, especially if the perpetrators operated from locations in their jurisdictions.

The International Criminal Court evaluates instances of historical injustices while formulating its amendments. In this case, the court utilizes the understanding of genocide and crimes against humanity in its endeavor to avert the repeat of such injustices. Evaluation was evident during the Kampala’s Review Conference. In 2010, a Review Conference held in Kampala, Uganda made two amendments to the Rome Statute of the International Criminal Court. The first one was meant to incriminate the use of particular weapons in domestic conflicts. The amendment followed a historical evaluation of their use, as well as the dangers they pose to humans and property. As of now, only San Marino has ratified the amendment.

During the ratification, San Marino’s authorities praised the state parties for their endeavors to avert a recurrence of situations where the citizens suffer in the hands of dictatorial regimes. Such suffering is believed to have taken place in Iraq during the reign of Saddam Hussein. When he was president, Hussein is believed to have ordered gas attacks on the people of Halabja. In this case, the historical understanding of conflicts has helped to device laws which are thought to have prevented dictatorial regimes from using weapons of mass destruction on their civilian populations. For instance, even with their brutality, regimes like those of Muammar Gaddafi and Yemen’s Ali Abdullah Saleh avoided the use of weapons of mass murder so as to avert legal repercussions.

Despite the efforts employed during the amendment of article 8, the regulation on the use of weapons fell short of the activists’ demands. According to groups of human rights and peace activists, the amendment could have also incriminated the use of such weapons in international conflicts. According to the activists, most historical incidences of crime against humanity result from international conflicts. As such, the failure to recognize that dimension left an impunity gap where a party can utilize the prohibited weapons without the possibility of facing the consequences. Furthermore, the amendment failed to prohibit the use of other dangerous and widely used weapons like anti-personnel mines, uranium weapons, and cluster munitions. Additionally, non-ratification by the state parties reduces the chances of the amendment ever serving its purpose.

The second amendment served to specify the crimes of aggression. During its formulation, the delegates consulted widely in an endeavor to evaluate the historical understanding of the crimes of aggression. As such, the amendment is aimed at averting the recurrence of crimes of aggression. However, it is yet to be ratified by any member state, a fact that challenges its implementation. According to the Rome Statute, the implementation of this amendment can only take place after it has been ratified by 30 member states on or before the 1^st of January, 2017. In addition, its implementation would necessitate the States Parties to vote in its favor after the 1^st of January, 2011. According to critics, these handles are difficult to overcome even with the extended grace period. Moreover, there is no provision explaining what would happen should the state parties fail to ratify the amendment. Such undefined situations in the past have resulted into failure of according justice to the victims of crimes against humanity.

Historical Considerations

Generally, the court crafts historical understandings of human rights violations during its investigations into alleged criminal activities. There are three criteria under which the court can exercise its jurisdiction: where a citizen of a state party is accused of crimes against humanity, when the alleged crimes are said to have occurred in the dominion of a state party, or when a case is referred to the court the UN Security Council. These criteria were set after the state parties recognized the loopholes in national justice systems. The International Criminal Court is designed as a complement to the existing judicial systems in the state parties. As such, it acts in situations where national judicial systems are unable or unwilling to investigate and prosecute the alleged crimes.

Punishing the perpetrators of genocide is among the central roles of the International Criminal Court. While evaluating the charges relating to genocide, the International Criminal Court seeks to establish whether there was an intention to destroy, in part or in whole, an ethnic, national, religious, or racial group. Such destruction may be through killing, causing serious mental or bodily harm, or forcibly evicting children of a group of people, or imposition of birth prevention measures. Moreover, the court evaluates whether the accused person participated in genocide. Participation ranges from conspiracy to destroy, inciting others into committing genocide in a public and direct manner, attempting to cause widespread murder, and being an accomplice in genocide. For this reason, the evaluation of historical accounts is necessary so as to accord justice in a retributive manner. Cases before the International Criminal Court take longer to conclude than those being handled in the national courts. The International Criminal Court takes time to assess the historical accounts that culminate into genocide. This is meant to facilitate the best outcome so as to build confidence in the court.

As of now, the court has successfully conducted investigations that have lead to the indictment of 27 people. Before the indictment, the court holds confirmation hearings against the suspected individuals. The hearings are meant to evaluate the alleged crime as well as the circumstances that contributed to the crime. Currently, the court is evaluating charges against six prominent Kenyans. It is alleged that the six individuals played the greatest roles during the 2007/8 post-election violence in Kenya. Confirmation hearings offer an opportunity for prosecution and the suspects to present their pieces of evidence to the jury. The evidence represents their historical view of the events that took place during the period in question. A confirmation hearing against the former Ivorian President Laurent Gbagbo is set to commence in 2012. It will look into the circumstances that led to the brief Ivorian civil war, which followed the disputed presidential elections of 2011.

In an endeavor to win the confidence of societies around the world, the International Criminal Court attempts to get an accurate and complete information regarding the cases that it handles. The court has established appropriate mechanisms for ensuring that all parties involved in the dispute are protected from human rights violations. The International Criminal Court enquires into the circumstances surrounding a case so as to ensure that it hands down a justly deserved penalty. By digging into history, the court has been able to accord justice to the victims of crime against humanity in a manner that had not been possible before its creation.

Unlike the national courts, the International Criminal Court evaluates the history of a case in an unbiased manner. However, since the court cannot deal with the crimes committed before its creation, the victims of widespread and systematic violence that occurred before 2002 may never find justice. This is especially true in situations where state agents were involved in the execution of the crimes. In such instances, states have protected the culprits with impunity. To prevent the recurrence of impunity, the international criminal court has been mandated to undertake its own investigations independently. However, this can only happen in situations where the cases took place after 2002. Such independence ensures that the ICC succeeds where the national courts have failed, either due to their unwillingness or to inability to conduct exhaustive investigations on cases involving crimes against humanity.

The International Criminal Court builds on the successes of the past international tribunals. The first such tribunals were established after the Second World War. The tribunals achieved their goals in prosecuting the perpetrators of war crimes and crimes against humanity during the war. The most prominent ones were those of Tokyo and Nuremberg. In recent years, the United Nations has commissioned tribunals for the former Yugoslavia and Rwanda. The two tribunals have been achieving their goals in facilitating justice to the victims of acts of genocide. Whenever the ICC is dealing with similar cases, it re-evaluates the successes and challenges that these tribunals faced in its attempts to accord justice to the aggrieved.

In spite of their success, the ongoing tribunals have been facing a couple of challenges. Firstly, their legality has always been disputed. In fact, only a handful of nations participated in their creation. Additionally, the tribunals’ mandates have been limited in small geographical locations. Since the establishment of such tribunals is based on political goodwill, there are extensive delays, a situation which result into loss of evidence. Moreover, dealing with isolated cases raises the cost of seeking justice for the victims of crimes against humanity. The tribunals’ ability to deliver justice to the victims of international crimes has been limited, and this fact makes the deterrence of future criminality difficult to achieve. This is for these reasons that the international community found it necessary to establish a permanent international court that would overcome the challenges faced by the tribunals. The Court would, however be at liberty to evaluate the limitations of the tribunals in according justice.

Due to its permanency, the International Criminal Court is in a better position to craft historical understanding of crimes such as genocide while punishing the perpetrators of crimes against humanity. When the United Nations General Assembly convoked the 1998 Rome Conference, the goal was to establish a legal framework that would guarantee the ICC’s underlying legitimacy. The ICC has got a widespread support among the members of the United Nations, having been the first tribunal that has been created through an international pact. The international pact facilitated the participation of all nations in the creation of the International Criminal Court. All the United Nations member states were invited to take part in the negotiations of its creation, and the consents of all the participants were sought so as to avert impartiality.

The Rome Statute covers crimes that are well defined in national as well as customary international laws. After evaluating the occurrence of crimes in history, aggression has been identified as one of the underlying causes of crime against humanity. This has prompted the state parties of the international criminal court to consider incorporating the crime of aggression into the Rome Statute. Nevertheless, the state parties have not agreed on the definition of aggression. During its proceedings, the International Criminal Court evaluates whether the national judicial organs were acting to shield a defendant from criminal responsibility. When the court establishes that there was inconsistency in the manner in which an individual was to be brought to justice, it conducts fresh and thorough investigations. This is meant to assure that the court, as a pure judicial institution, would guarantee a fair proceeding where the rights of defendants, as well as the plaintiffs are protected.

During its endeavor to uncover the truth, the court allows the victims to participate as prosecution or defense witnesses as par their wishes. Opposite to the operations of ad hoc tribunals, the International Criminal Court has a provision that permits the involvement of a victim, even when he/she has not been called as witnesses. According to the evidence that is gathered, the International Criminal Court may order reparations in form of rehabilitation, compensation, and restitution to the victims of crimes against humanity. The ICC is obliged to accord special interest to the crimes which involve children and women as victims. This decision was reached after the crafting of historical incidences indicated a systematic pattern of oppression for the two groups during the periods of hostilities.

During its investigations and prosecutions, the International Criminal Court assumes the primary responsibility of according fair, credible, and impartial proceedings in an efficient manner. The aim of such measures is to ensure that there is an appropriate judicature. Nevertheless, the court faces a lot of challenges in the attempt to eradicate impunity. The success of its operations depends on the commitment and support of the state parties, the civil society, and the international organizations. Each of these stakeholders has a role to play in the administration of justice. Civil society and the international organizations provide the court with the necessary details during the investigations. Their participation enables the court to craft a historical understanding of the crimes, a situation which facilitates the accordance of justice.

As indicated in the earlier sections, the court was established as a complementary institution to the national judicial systems. As such, it acts as the institution of the last resort. Since a possibility of prosecuting criminal activities exists, the court may continue to gather its own evidence as the state organs do. Such evidences enhance the Court’s knowledge base, and should such instances occur in future, the institution finds itself in a better position to deal with it. However, prosecutions can only be undertaken if the national judicial systems fail. Because ICC’s operations are limited to territorial and national boundaries of state parties, there is a need to continue ratifying the Rome Statute so as to facilitate a global reach to justice.

All nations ought to participate, as the ICC relies on nation states on the execution of warrants of arrest, provision of evidence, and enforcement of sentences. Cooperation among nations is crucial, as this was the real essence of abandoning the former practices of creating ad hoc tribunals. History has indicated that without cooperation during the arrest and surrendering of the suspects, trials cannot take place. The world’s nations aimed at establishing at establishing a powerful judicial institution that would not be at the mercy of the normal instruments of the national courts.

Conclusion

In order to avoid chances of misuse, the states members resolved not to allow for the Court affiliated army or police forces. Additionally, the court officials are drawn from various nations so as to ensure impartiality. It is accorded a crucial support by the international organizations, especially the United Nations. The United Nations cooperates with the court on a regular basis so as to ensure that agreeable procedures are followed during the Court’s field activities. Historically, this has proved to be of benefit as a wide range of evidence is availed to the court.

The ICC has concluded several relationship agreements with the United Nations and other international organizations. The Court has also been developing cooperation with several regional organizations. For instance, in 2007, the European Union and Court signed an agreement with the aim of enhancing cooperation. Recently, there have been agreements with the African Union and the Organization of American States, OAS. The OAS is one of the most important proponents of the ICC. As such, there has been a variety of meetings between the ICC and the OAS. The aim of these meetings was to provide the court officials with the information that could be utilized in determining the manner in which crimes against humanity are executed.

The Court has been considering its relationship with various non-governmental organizations and the civil society as instrumental during historical evaluation of crimes against humanity. Due to their expansive knowledge of the manner in which crimes against humanity are committed, NGOs have been helping the International Criminal Court in revising the Rome Statute. For instance, local NGOs possess ample information, much of which may be of utility to the operations of the Court. As such, the NGOs play an important role, as the Court builds the awareness of the situation on the ground.