Purpose
Peace and Justice
"One
of the primary objectives of the United Nations is securing universal
respect for
human rights and fundamental freedoms of individuals throughout
the world. In this connection, few topics are of greater importance
than the fight against impunity and the struggle for peace and
justice and human rights in conflict situations in today's world.
The establishment
of a permanent international criminal court (ICC) is seen as a
decisive step forward."
-
United Nations (1998-1999)
The United
Nations defines six main reasons for establishing
the International Criminal Court:
-- To
achieve justice for all
-- To end impunity
-- To help end conflicts
-- To remedy the deficiencies of ad hoc tribunals
-- To take over when national criminal justice institutions are unwilling
or unable to act
-- To deter future war criminals
The Preamble to the Rome Statute
of the International Criminal Court (download the entire document)
_____________________________________________________________________________________
To
achieve justice for all
An international
criminal court has considered the missing link in
the international legal system. The
International Court of Justice at
The Hague only handles cases between States, and not individuals.
With no international criminal court for dealing with individual
responsibility as an enforcement mechanism, acts of genocide
and severe violations of human rights often go unpunished. In
the last
fifty years, there have been many instances of crimes against
humanity and war crimes for which no individuals have been held
accountable.
In Cambodia in the 1970s, an estimated 2 million people were
killed by the Khmer Rouge. In armed conflicts in Mozambique,
Liberia, El
Salvador, and other countries, there has been tremendous loss
of civilian life, including horrifying numbers of unarmed women
and
children. Massacres of civilians continue in Algeria and the
Great Lakes region of Africa.
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To end
impunity
"A person
stands a better chance of being tried and judged for killing one
human being than for killing 100,000."
- José Ayala
Lasso, former United Nations High Commissioner for Human Rights
The Judgment of the Nürnberg Tribunal stated that "crimes
against international law are committed by men, not by abstract
entities, and only by punishing individuals who commit such crimes
can the provisions
of international law be enforced", establishing the
principle of individual criminal accountability for all who commit
such acts
as a cornerstone of international criminal law. According to the
Draft Code of Crimes against the Peace and Security of Mankind,
completed in 1996 by the International Law Commission at the request
of the
General
Assembly, this principle applies equally and without exception
to any individual throughout the governmental hierarchy or military
chain
of command. And the Convention on the Prevention and Punishment
of
the Crime of Genocide adopted by the United Nations in 1948 recognizes
that the crime of genocide may be committed by constitutionally
responsible rulers, public officials or private individuals.
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To help
end conflicts
"There can
be no peace without justice, no justice without law and no meaningful
law without a Court to decide what
is just
and lawful under any given circumstance."
-
Benjamin B. Ferencz, former Nürnberg prosecutor
In situations such as those involving ethnic conflict, violence begets
further violence; one slaughter is the parent of the next. The
guarantee that at least some perpetrators of war crimes or genocide
may be
brought to justice acts as a deterrent and increases the possibility
of bringing a conflict to an end. Two ad hoc international criminal
tribunals, one for the former Yugoslavia and another for Rwanda,
were created in this decade with the hope of hastening the end
of the violence and preventing its recurrence.
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To remedy
the deficiencies of ad hoc tribunals
The establishment
of an ad hoc tribunal immediately raises the question of "selective justice". Why has there been no war crimes
tribunal for the "killing fields" in Cambodia? A permanent
court could operate in a more consistent way.
Reference has
been made to "tribunal fatigue".
The delays inherent in setting up an ad hoc tribunal can have several
consequences:
crucial evidence can deteriorate or be destroyed; perpetrators can
escape or disappear; and witnesses can relocate or be intimidated.
Investigation becomes increasingly expensive, and the tremendous
expense of ad hoc tribunals may soften the political will required
to mandate them.
Ad hoc tribunals are subject to limits of time or place. In the
last year, thousands of refugees from the ethnic conflict in Rwanda
have been murdered, but the mandate of that Tribunal is limited to
events that occured in 1994. Crimes committed since that time are
not covered.
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To take
over when national criminal justice institutions are unwilling
or unable to act
"Crimes
under international law by their very nature often require the
direct or indirect participation
of a number of individuals
at least some of whom are in positions of governmental authority
or military command."
-
Report of the International Law Commission (1996)
Nations agree that criminals should normally be brought to justice
by national institutions. But in times of conflict, whether internal
or international, national institutions are often either unwilling
or unable to act. This is usually due to one of two reasons. Governments
often lack the political will to prosecute their own citizens, or
their
high-level officials, as was the case in the former Yugoslavia.
Or national institutions may have collapsed, as in the case of Rwanda.
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To deter
future war criminals
"From now
on, all potential warlords must know that, depending on how a conflict
develops, there might be established
an international
tribunal before which those will be brought who violate the laws
of war and humanitarian law. . .Everyone must now be presumed
to know
the contents of the most basic provisions of international criminal
law; the defence that the suspects were not aware of the law will
not be permissible."
-
Hans Corell, United Nations Under-Secretary-General for Legal Affairs
Throughout history, most perpetrators of war crimes and crimes against
humanity have gone unpunished. In spite of the
military
tribunals
following World War II and the two recent ad hoc international
criminal
tribunals for the former Yugoslavia and for Rwanda, the same holds
true for the twentieth century. That being said, it is reasonable
to conclude that most perpetrators of such atrocities have believed
that
their crimes would go unpunished. Effective deterrence is a primary
objective of those working to establish the international criminal
court. Once it is clear that the international community will no
longer tolerate such horrific acts without assigning responsibility
and appropriate punishment, from commanding
officers to the lowliest soldiers in the field or militia
recruits, it is hoped that those who would incite a genocide; embark
on a campaign of ethnic cleansing; murder, rape and brutalize civilians
caught in an armed conflict; or use children for barbarous medical
experiments will no longer find willing helpers.
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_______________________________________________________________________________________________
The Preamble to the Rome Statute of the International Criminal Court
The States Parties to this Statute,
Conscious that all peoples are united by common bonds, their
cultures pieced together in a
shared heritage, and concerned that this delicate mosaic may
be shattered at any time.
Mindful that during this century millions of children, women
and men have been victims of
unimaginable atrocities that deeply shock the conscience of humanity.
Recognizing that such grave crimes threaten the peace, security
and well-being of the world.
Affirming that the most serious crimes of concern to the international
community as a whole
must not go unpunished and that their effective prosecution must
be ensured by taking measures at
the national level and by enhancing international cooperation.
Determined to put an end to impunity for the perpetrators of
these crimes and thus to
contribute to the prevention of such crimes.
Recalling that it is the duty of every State to exercise its
criminal jurisdiction over those
responsible for international crimes.
Reaffirming the Purposes and Principles of the Charter of the
United Nations, and in
particular that all States shall refrain from the threat or
use of force against the territorial integrity
or political independence of any State, or in any other manner
inconsistent with the Purposes of the
United Nations.
Emphasizing in this connection that nothing in this Statute
shall be taken as authorizing any
State Party to intervene in an armed conflict or in the internal
affairs of any State.
Determined to these ends and for the sake of present and future
generations, to establish an
independent permanent International Criminal Court in relationship
with the United Nations
system, with jurisdiction over the most serious crimes of concern
to the international community
as a whole.
Emphasizing that the International Criminal Court established
under this Statute shall be
complementary to national criminal jurisdictions.
Resolved to guarantee lasting respect for and
the enforcement of international justice . . .
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