The Reckoning

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ICC History

The International Criminal Court (ICC) began operation as the first permanent international court in history created to investigate and prosecute individual perpetrators, no matter how powerful, for genocide, war crimes and crimes against humanity. Prior to the creation of the ICC, there had been international tribunals set up following specific atrocities, such as the trials of Nazi officials at Nuremberg after World War II and temporary tribunals for perpetrators in Rwanda and the former Yugoslavia, but these were never intended to be permanent. For centuries many serious international crimes occurred without any justice.

Though some people had hoped that Nuremberg would set a precedent and prevent future atrocities, since World War II millions have been murdered in mass atrocities, including but not limited to:

  • Guatemala -- 200,000
  • Cambodia -- 1,700,000
  • Kurdistan -- 150,000
  • Sierra Leone and Liberia -- 250,000
  • Bosnia and Herzegovina -- 200,000
  • Rwanda -- 800,000

To address repeated crimes against humanity in the hope of deterring future crimes, representatives from a wide range of nations used the Nuremberg Tribunals and the ad-hoc tribunals for the former Yugoslavia and Rwanda as models to craft a draft treaty for an international criminal court. After several years of preparation under the auspices of the United Nations, that draft was formally presented at a 1998 conference in Rome, now known as the Rome Conference. The Rome Conference was attended by 160 states, 33 international organizations and 236 NGOs (non-governmental organizations). The treaty that resulted is known as the Rome Statute.

A total of 120 nation representatives voted for the treaty, but the court could only become operational after a minimum of 60 nations had ratified the treaty. It took four years for that ratification to be achieved, and since 2002, 139 nations have signed the treaty and 109 have ratified it to become members.

The ICC is a fully independent institution and should not be confused with the International Court of Justice at the United Nations, which settles disputes between nations. The ICC's seat is at The Hague in the Netherlands. Its jurisdiction is potentially global with respect to genocide, crimes against humanity and war crimes, and in the future may include the crime of aggression, which is in the process of being defined. The ICC can only investigate and make arrests for crimes committed since July 2002.

» "From Nuremberg to Hague: The Road to the International Criminal Court," Nuremberg Human Rights Centre, Federal Foreign Office, and Goethe Institute (2006). (PDF)
» Background Information: Crimes within the Court's Jurisdiction,
» ICC official site

ICC Structure and Procedures

The ICC is governed by the Assembly of States Parties, comprised of member nations. Judges are elected by the Assembly, which must take into account "equitable geographical representation" and a "fair representation of female and male judges."

The ICC is meant to be a court of last resort and can only pursue a case when a country is unable or unwilling to do so under its own national system.

Before a case is brought to the ICC, an investigation must be initiated by one of three methods:

  • State Party Referrals: A State Party has the right to introduce evidence of one or more crimes within the authority of the court. ICC member nations may also refer their own situations to the prosecutor, claiming that they are unable to prosecute the crimes in question. This is how the cases in Uganda, Democratic Republic of Congo and Central African Republic came to the ICC.
  • The UN Security Council (UNSC): The UNSC can refer a situation to the prosecutor and extend the court's jurisdiction to UN member states that have not ratified the Rome Statute. This is how the Sudan/Darfur case came to the ICC, since Sudan is not a member of the ICC.
  • Proprio Motu: The prosecutor can move to open a situation independently with the approval of a three-judge panel, though to date the current prosecutor has not chosen to do so. Victims cannot initiate investigations directly, but may bring information to the attention of the prosecutor that could result in an investigation into a particular situation.

The decision to take up a case rests with the prosecutor, but a panel of judges must weigh the evidence submitted and decide whether to issue an arrest warrant.

In order to guarantee fair trials, the ICC offers nearly all of the protections guaranteed by the U.S. Bill of Rights, one of the ways that the ICC combines elements of common law and civil law. This means:

  • Defendants are guaranteed representation by qualified attorneys.
  • Prosecutors must turn over to the defense any potentially exculpatory evidence as well as any evidence of guilt.
  • No defendant can be tried more than once for the same conduct (i.e., no double jeopardy).
  • No one can be tried for a crime retroactively, either for conduct that has not been previously defined as a crime or for actions taken before the court began work in 2002.
  • The defense may cross-examine witnesses and present its own evidence.
  • There is a process for appealing the court's rulings and verdicts.

The ICC does not impose the death penalty, but it may imprison convicted defendants in the prisons of assenting countries, possibly for life, and/or order them to pay reparations to victims. The court may also make reparations through a Trust Fund for Victims overseen by the ICC's Assembly of States Parties. However, due to the heinous nature of the cases it hears, the court recognizes no statute of limitations on the crimes over which it has jurisdiction.

» "From Nuremberg to Hague: The Road to the International Criminal Court," Nuremberg Human Rights Centre, Federal Foreign Office, and Goethe Institute (2006).
» Skinnider, Eileen. Ensuring the Independence of the Criminal Court, March 2006. (PDF)
» Mitchell, Sara and Powell, Emilia. The Creation and Expansion of the International Criminal Court: A Legal Explanation (PDF)
»The Prosecutor of the ICC opens investigation in Darfur, International Criminal Court Press Release, 2005.
»ICC official site

The United States and the ICC

The United States made many important contributions to the Rome Statute but ultimately voted against it. President Bill Clinton reluctantly signed the treaty in the last days of his presidency in 2000. However, it was never submitted to the Senate for advice and consent to ratification.

The United States wanted the UN Security Council to determine which cases the ICC would or would not hear -- effectively granting the Security Council (and its five permanent member nations, including the United States) veto power over cases that the ICC could prosecute. That provision was deemed unacceptable by other signatories and was rejected. However, the Security Council can still defer an investigation or prosecution for one year unless the motion is vetoed by any one of the permanent members of the Council.

The United States expressed concern that without the filter of the Security Council, Americans, including military personnel, might be put on trial for political purposes. The administration of President Clinton announced that the United States would not pursue ratification to become a member state of the court.

The administration of President George W. Bush broadened the government's objections to the court. The United States officially withdrew its support for the Rome Statute, though it did not "unsign" the treaty. Additionally, under the Bush administration in 2002, the U.S. Congress passed a law called the American Service-Members Protection Act, authorizing the U.S. president to use "all means necessary" to free U.S. nationals held at The Hague. In line with the American Service-Members Protection Act (ASPA), the Bush administration also launched a campaign to secure bilateral non-surrender agreements with other countries that would "protect American citizens from the International Criminal Court." Countries that signed such agreements agreed not to surrender American nationals to the jurisdiction of the ICC.

The United States still has not joined the ICC and does not recognize its authority over Americans yet supports certain ICC investigations such as the effort to prosecute Sudanese President Omar al-Bashir. The Obama administration has taken a more positive approach to the court, but has delayed taking specific action concerning ratification of the Rome Statute until it completes a review of U.S. policy toward the ICC.

» Article 16, Rome Statute.
» "United States and the International Criminal Court," Global Issues.
» "Clinton Signs Treaty Just Before Deadline," UN Wire.
» U.S. Department of State, Article 98 Agreements.

Countries featured in the film

Uganda has seen many conflicts and been host to thousands fleeing conflicts in neighboring Sudan, Rwanda and Congo. One of the most persistent sources of conflict in Uganda over the last two decades has been the war between the government of Uganda and the Lord's Resistance Army (LRA), which operates largely in the northern part of the country, especially near the Sudanese border, and in the Democratic Republic of Congo.

The goals of the LRA have not always been clear. The group has claimed to fight on behalf of ethnic Acholi, who have been the targets of discrimination and neglect by the government. They have also announced a desire to institute a government based on the Ten Commandments and, ironically, given their brutal tactics, to end war.

Unable to defeat the LRA or protect the civilian population from LRA abuses, Uganda sought help from the ICC. In 2005, after extensive investigation of both the government and the LRA, arrest warrants were issued for five leaders of the LRA, including Joseph Kony and Vincent Otti. Two of the five leaders named in the warrants are now deceased. Joseph Kony, the commander in chief, and the other two remain at large.

» Farmar, Sam. "I will use the Ten Commandments to Liberate Uganda," The London Times, June 28, 2006.
» CIA World Factbook: Uganda
» International Criminal Court: Uganda.

Democratic Republic of Congo (DRC)
The Democratic Republic of Congo (also known as the Congo) has been embroiled in internal and external conflicts for decades. At various places and times, the conflicts have had political, ethnic and economic origins, with rebels attempting to overthrow dictators, tensions between Hutus and Tutsis spilling over from neighboring Rwanda and everyone attempting to control significant mineral resources, including coltan, gold and diamonds.

In 1998, an armed insurrection supported by Rwanda and Uganda began a five-year conflict that went on to involve Angola, Namibia and Zimbabwe. Dubbed "Africa's World War," the conflict ended in 2003, shortly before the ICC prosecutor was named, but unrest has continued, especially in the eastern part of the country. The war in eastern Congo has claimed over 4 million lives, the most lost in any conflict since World War II. The ICC investigation began at the behest of the current DRC government.

Thomas Lubanga Dyilo led a militant faction of the UPC (Union des Patriotes Congolais), which is alleged to have massacred thousands of citizens in 2002-2003 but was reestablished the following year as a legitimate political party. As leader of this militia, he is suspected of a variety of war crimes and crimes against humanity, and the ICC arrested him in 2006 on the evidence it had gathered to charge him with conscripting children. His trial began in January of 2009. Cases against two other Congolese militia leaders are in the pretrial stage.

» CIA World Factbook
» "Profile of Thomas Lubanga Dyilo," American NGO Coalitions for the ICC (AMICC).

The ongoing internal armed conflict between FARC and ELN rebel guerrillas and the Colombian government escalated in the 1990s. In the 40-year confrontation, the government is implicated in collaborating with unofficial paramilitary groups so as not to involve its army in war crimes and massacres. Civil society organizations have documented human rights abuses on all sides. The conflict initially centered around economic and political philosophies and representation, but has been complicated by funding from the illicit drug trade, which generated its own violence.

The ICC is currently monitoring the situation and collecting information, but it is waiting to see what the Colombian government will do to address the situation before deciding whether to open a formal investigation. The government has complicated ICC's analysis by extraditing 14 paramilitary leaders to the United States to face drug trafficking charges, putting them out of the reach of the ICC. Some of those leaders had been threatening to give the ICC information about the connections between the government of Colombian President Alvaro Uribe and paramilitary groups.

» "Colombia Captures Alleged Drug Lord Wanted in the U.S.," Regalado, Antonio. The Wall Street Journal, Apr. 16, 2009.
» "Court Looks at Supporters of Rebels in Colombia." Romero, Simon. The New York Times. Aug. 15, 2008.
» "Colombia's Right-Wing Paramilitaries and Splinter Groups," Hanson, Stephanie. Council on Foreign Relations. January 11, 2008
» "Colombia hands ex-paramilitary leader over to U.S.," Kraul, Chris. The Los Angeles Times. March 6, 2009.

Most of Sudan's modern history has been dominated by conflicts over political, economic, territorial and ethnic autonomy. In 1989, current President Omar al-Bashir took power in a bloodless military coup while a colonel in the Sudanese army. In recent years, charges of genocide have been leveled against the government of Sudan in the Darfur region, in western Sudan. The 2009 arrest warrant for President al-Bashir lists five counts of crimes against humanity and two counts of war crimes, including "intentionally directing attacks against a civilian population." Estimates vary, but most observers accept a figure of approximately 200,000 people killed and over 2 million displaced by the conflict. Much of that displacement was handled in brutal fashion by the Janjaweed, paramilitary groups supported by the government.

In 2005, concern about the brutal conflict in Darfur led the United Nations Security Council to refer the situation in Darfur to the ICC. In 2007, the ICC issued arrest warrants for former Sudanese Minister of State for the Interior (now for Humanitarian Affairs) Ahmad Harun and Janjaweed militia leader Ali Kushayb, charging them with war crimes and crimes against humanity. Both men, and President al-Bashir, remain at large.

» CIA World Factbook
» ICC official site
» "FACTBOX -- Sudan's President Omar Hassan al-Bashir," Reuters. July 14, 2008.
» Flint, Julie and Alex de Waal. Darfur: A Short History of a Long War. London: Zed Books, 2008. Print. Pages 145, 275.
»"Warrants of Arrest for the Minister of State for Humanitarian Affairs of Sudan, and a leader of the Militia/Janjaweed," International Criminal Court.
» "Thirteenth Diplomatic Briefing of the International Criminal Court, International Criminal Court.
» Sudan: Ethnic Cleansing in Darfur


According to Article 6 of the Rome Statute, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or
religious group, as such:

(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.

Crimes against Humanity
According to Article 7(1) of the Rome Statute, crimes against humanity means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

(a) Murder;
(b) Extermination;
(c) Enslavement;
(d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
(f) Torture;
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization or any other form of sexual violence of comparable gravity;
(h) Persecution against any identifiable group or collectivity based on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
(i) Enforced disappearance of persons;
(j) The crime of apartheid;
(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

War Crimes (selected provisions)
The ICC generally adheres to the definitions of war crimes as enumerated in the Geneva Conventions. Without denying the ability of a government to maintain or re-establish law and order within its national boundaries or to defend its national sovereignty by legitimate means, the Statute prohibits:

(a) Torture or inhuman treatment, including biological experiments;
(b) Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;
(c) Willfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;
(d) Unlawful deportation or transfer or unlawful confinement;
(e) Taking of hostages;
(f) Intentionally directing attacks against the civilian population or against individual civilians not taking direct part in hostilities;
(g) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in humanitarian assistance or a peacekeeping mission;
(h) Intentionally using starvation of civilians as a method of warfare;
(i) Killing or wounding a combatant who, having laid down his arms or having no longer means of defense, has surrendered;
(j) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives;
(k) Committing outrages upon personal dignity, in particular humiliating and degrading treatment;
(l) Committing any form of sexual violence;
(m) Conscripting or enlisting children under the age of 15 years into the national armed forces or using them to participate actively in hostilities.

» The Rome Statue, International Criminal Court.