Table of Contents
Crimes against Humanity can be described as acts committed as part of a widespread attack as that may be systematic and these attacks are directed at a civilian population normally with knowledge of the attack. These acts may include; murder, rape, extermination, torture, forcible transfer of populations, persecution against any identifiable group on racial, ethnic, political, religious, and cultural or any grounds that are universally considered impermissible under international law. It can also be described as a criminal justice offence with systematic perpetration of war upon a civilian non-soldier population. This paper seeks to discuss the issues and controversies surrounding International Human Rights.
The International Criminal Court
The International Criminal Court based at The Hague in The Netherlands was created under the Rome Statute was established to help end impunity for the perpetrators of the most serious offences that are of concern to the international community. These offences are; genocide, war crimes and crimes against humanity. It is an independent organization that is not part of the United Nations System. On the 17th of July, 120 countries adopted the Rome Statute which was the legal basis for the establishment of the permanent International Criminal Court. On the 1st of July 2002, The Rome Statute entered into force after 60 countries ratified the treaty. The court’s functions are primarily funded by states party to it but also receive voluntary contributions from governments, corporations, international organizations and even individuals. The International Criminal Court only tries individuals accused of the gravest crimes and does not act if the case is being investigated or is in court in a national judicial system, unless these proceedings are not genuine for example if such proceedings are aimed at shielding an individual from criminal responsibility (International Criminal Court).
In future, the International Criminal Court will play an increasingly important role in responding to crimes against humanity. In the past there was no permanent court to deal with the architects and perpetrators of some of the worst atrocities and massacres. In 1997, the Khmer Rouge was ready to hand over Pol Pot for prosecution because Cambodia was not in a position to adjudicate and an international forum was nonexistent. An International Criminal Court could have fulfilled this role. If the Court had existed, it would have been the perfect venue for the work of the special tribunals dealing with the crimes committed in the former Yugoslavia and the genocide in Rwanda. The International Criminal Court would also have been the place to open up criminal charges against the former Iraqi President Saddam Hussein and his top aides for their genocidal campaign against Iraqi Kurds in 1988. The existence of the court has served to show world leaders, especially those with dictatorial tendencies that the international community will not stand aside or tolerate impunity when the rights of civilians are abused. The International Criminal Court will therefore play an important role in instilling accountability and responsibility among world leaders (Stork,J.).
Limitations on Sovereignty
The International Criminal Court is intended to deter crimes of the future; the court cannot prosecute individuals for crimes perpetrated before it came into being. Because it is a treaty based organization, countries that do not sign up to the court are not obliged cooperate with it.
The International Criminal Court has jurisdiction over crimes committed by people from countries that are party to the treaty and also over crimes committed on the territory of a state party and also over crimes committed on the territory of a state party. Most sovereign conscious countries had hoped to restrict this. Therefore people from countries that have not signed up to join the court may just as well be charged before the court if they are accused of committing war crimes in a country that is a member of the court. The prsecutor of the International Criminal Court has the right to initiate cases under his own authority. It was previously envisaged that either the United Nations Security Council or member states that are party to the court would refer cases to it. By granting the prosecutor power to launch cases on his own, this effectively removes the court from the realm of international power politics (Dworkin, A.)
Crimes beyond the Courts Reach
A good number of the worst crimes are committed by governments against their civilian populations’ for example the case of the genocide in Rwanda; in such instances the court may be unable to prosecute the perpetrators of these heinous crimes. Citizens of countries that are not party to the court cannot be prosecuted for crimes committed within their own borders unless the Security Council votes to refer the case to the court. One shortcoming of the court is that even if the court is successful in launching a case against an individual suspected of committing war crimes or crimes against humanity, the court lacks the necessary power to apprehend him. The court relies heavily on national governments to hand over suspects that may be in their own custody or use their security forces to arrest these suspects (Dworkin, A)
Court of Last resort
The court does not have precedence over national courts, meaning that it can only pursue cases when the countries involved fail to do it. Any country with a credible and functioning judicial system, will have a chance to prove that it is involved in investigations or prosecutions of suspects believed to have committed war crimes. The court may only begin a prosecution where the country that has jurisdiction over the case shows itself to be either genuinely unable or unwilling to carry out investigation or prosecution of the suspects. It is up to the International Criminal Court to make the judgment on whether the state concerned is genuinely pursuing a particular investigation. The court is however not supposed to second guess the outcome of a transparent national investigation. It can only take over cases where state authorities are blatantly subverting justice. The complementrarity provision provides some leeway for some limited amnesties for example if a state decides not to prosecute a particular individual or a group of people all in the interest of national reconciliation just as it happened in South Africa in the country’s Truth and Reconciliation Commission.
Will the Court be Political?
There are many safe guards to ensure that the prosecutor does not overstep and to minimize the possibility that the prosecutor might pursue cases for political instead of legal motives. Before the prosecutor launches an investigation he must first persuade a pre trial panel made up of three judges that the suspect has a case to answer. He then notifies the state that has jurisdiction over the case that he is looking into the case to give them a chance to investigate themselves. Should the prosecutor have a reason to believe that the country that has jurisdiction over the case is not genuinely pursuing the matter; he must again face the pre trial chamber for them to endorse this judgement. The state that has jurisdiction over the case reserves the right to appeal this decision to the Appeals Chamber of the International Criminal Court.
The ICC’s Timely Intervention as a Result of Tangible Threats of Future Atrocity Crimes
The International Criminal Court will play a more significant role in future as compared to ad hoc tribunals. Under article 25 of the ICC statute, it provides for liability for attempt in relation to all atrocity crimes. That liability is attached to action that is deemed to start the execution of an atrocity by means of a substantial step. This is so because atrocity crimes cannot be said to be unavoidable; they are normally take long planning and preparation for they require an “organizational context” and a “collective effort”. In many cases, there is sufficient informatioon about impending atrocity crimes which, unfortunately is either ignored or not taken into serious consideration by top national or international decision makers who often have competing political agendas. Therefore statutory provisions on preparation, planning, incitement and attempt are quite necessary for the effectiveness of preventative efforts through timely intervention. The ICC statute does not however draw a distinct line between acts of mere preparation and conduct amounting to a substantial step for the execution of atrocity crimes. International tribunals are not able to make timely interventions of any kind because they are only formed after these atrocities have taken place.
Truth and Reconciliation Commission in South Africa
In 1992, South Africa shifted from Apartheid to Democracy. In November 1995, Nelson Mandela, the then democratically elected president set up the Truth and Reconciliation Commission to help alleviate some of the injustices and pains suffered under apartheid and chose Nobel Laureate Archbishop Desmond Tutu to head the commission. Desmond Tutu maintained that for South Africa to have a unified and peaceful future there was need for there to be forgiveness and reconciliation. The commission was not going to hold criminal trials against the people who had committed the crimes during the apartheid era but would provide both the victims and perpetrators an opportunity to tell their own stories. The objective of the commission was to facilitate the victims and perpetrators to meet face to face and being human, this would foster acts of penitence and forgiveness. The commission played a huge role in unifying the racially divided nation and helped to put to an end the suffering that was experienced during the apartheid era. The perpetrators and victims were able to meet each other face to face, share their personal stories and try to bury their differences from the past and try to reconcile with one another.
The Truth Justice and Reconciliation Commission of South Africa were deemed to be the better option when compared to criminal trials. It gave amnesty to perpetrators of politically instigated crimes during the era of apartheid provided they made full and truthful public disclosures. These confessions were seen to better because South Africa did not have excess money to sponsor trials nationwide. Moreover due to lack of funds, criminal trials would not be able to provide any form of monetary compensation to victims of the crimes and even if the funds were available, it would have been virtually impossible to determine the exact monetary value of the pain and suffering that was witnessed during the apartheid era. South Africa also had limited trial experience and the country’s judges were predominantly white and therefore would be most likely be slow to rule in favor of blacks because racism was still evident. Very few testimonies and witnesses from the apartheid era existed and the perpetrators were instructed to lie. The commission did a wonderful job in promoting healing in the country.
Rethinking Truth and Reconciliation Commissions: Lessons from Sierra Leone
Sierra Leone went through eleven years of a brutal civil war that was internationally infamous for its characteristic sexual violence, mutilations and the targeting of children. In April 2003, the Truth and Reconciliation Commission began its public hearings. The commission was formed as a result of pressure from human rights activists and Non-Governmental organizations but it received little popular support from the people of Sierra Leone for they preferred a “forgive and forget” approach. The people did not receive the idea of the commission warmly among other things due to the fear of government reprisals, a general fear of retaliation by the perpetrators of the crimes and genuine concerns that arose from the concurrent operation of different justice mechanisms and specifically The Special Court for Sierra Leone and the Truth and Reconciliation Commission. In some areas, people collectively agreed not to give statements.