To what extent can the International Criminal Court contribute to the

protection of human rights?

Political leaders and members of the global civil society –awareness of the need for a

new global political order (Keane, 2003)- have enthusiastically announced the

defence of human rights (HR) through the creation of the first permanent International

Criminal Court (ICC) at the dawn of the new millennium. Indeed, its foundation in

1998, and subsequent entrance into force on the 1st July of 2002, was celebrated by

Kofi Annan as ‘a gift of hope to future generations and a giant step forward in the

march towards universal HR and the rule of law’ (Annan, 1998). This essay

investigates to what extent the ICC’s fight against impunity from the most horrendous

crimes against humans can contribute to the concrete defence of HR. The subject is of

great significance for the HR field, since it concerns a unique prototypical apparatus

of international criminal law, designed to address the legacies of massive HR’s

violations afflicting post-conflict societies. This paper acknowledges the key role of

criminal prosecutions in dealing with the most dramatic international challenge:

seeking justice in the aftermath of horrific HR abuses. On the one hand, this paper

analyses the consistency of the arguments supporting the ICC emphasized by the

European Union while, on the other, it investigates the frailties underlined by its

opponents, leaded by the United States, in regard to outreach to general populations,

peace versus justice debate, complementarity with domestic courts and victims’

participation and compensation. This essay ultimately argues that the birth of the ICC

represents a crucial turning point in the struggle for HR’s defence, especially in regard

to international awareness of global ethics and normative ideals. Although the

translation of moral and legal obligations into viable justice at the local level is

opposed by the dependence on state actors, as well as by fundamental structural

weaknesses and limited capacity, the ICC can promote HR’s protection if its

efficiency and credibility will be improved, with the contribution of both state actors

and NGOs community. Therefore, this essay maintains that, beyond the realization of

more proximate goals, such as the prosecution of criminals, the Court vitally

contributes to the protection of HR by generating a change of norms and values,

towards a more comprehensive transitional justice (TJ) approach. In this sense, it

enriches the protection of HR by avoiding a narrow approach to justice, coordinating

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its efforts with other TJ mechanisms and, ultimately, shaping a new legal landscape to

fight the impunity of HR crimes and to inhibit their future occurrence.

The immense positive impact that the ICC can ensure in the protection of

international HR is evident if we analyse the concept of HR itself. It denotes

‘examples of social construction’, or fictitious social categories that originate from the

extent of a shared understanding ‘within and across communities’ (Schmitz and

Sikkink, 2012:827). Indeed, this collective invented meaning, attributed by the

members of the international community to the notion, raises it to the higher level of

protection conceivable (ibid.). Since the Universal Declaration has become part of

customary international law and has fostered consensus on the impossibility to further

tolerate the heinous actions committed by some legitimate governments against their

own people in the post-Cold War period, the rationale underpinning the HR’s defense

is currently that they ‘do not become a matter of international concern until states

actively participate in or negligently allow their violation’ (Mayerfeld, 2003;

Simpson, 2008; Kaldor, 2007). In this scenario, various mechanisms of safeguard

have been increasingly produced, in order to ensure the fulfilment of a state’s

obligation to provide victims with the ‘right to a remedy against abuses’ (Simpson,

2008:11). One of these, namely the ICC, is grounded on the belief that perpetrators of

violent crimes should be punished by their respective states in order to re-establish the

rule of law and contribute to the struggle of a society to deal with the legacy of part

atrocities (UN Institute of Peace, 2008; Quinn, 2013). The ratification of the Rome

Statute, instituting the ICC, by over a hundred states, epitomizes the result of an

intense ‘shift in the global legal landscape’ culminating in the institution of the first

permanent criminal Court (Simpson, 2008:10). Precisely, it encompasses a set of HR

norms, established by customary international law and treaty, executed by an

autonomous group of judges and prosecutors and not connected with any state

(Mayerfeld, 2003; Villalba, 2011). The main progress for the protection of HR

resulting from this change consists in the impossibility for member states to sacrifice

justice for past atrocities in the name of political expediency by negotiating a ‘blanket

amnesty’- an official pardon for people who have been convicted of political offences

(Simpson, 2008:10; Bassiouni and Rothenberg, 2007). Hence, although holding

perpetrators accountable of HR’s violations is primarily attributed to the legitimate

custody and power of states, fundamental derogations to this ancient political

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principle have been elaborated during the 1990s, due to the globalized dimension of

national criminal justice and to the growing complexities of the ‘new wars’ in the

post-Cold War era (Kaldor, 1999; Bassiouni, 2008). For instance, because traditional

armed conflicts do not represent the major cause of deaths of civilians, but have been

substituted by repression from national governments and transnational criminality, a

mounting international concern spread on the pursuit of human security (Bassiouni,

2008; Kaldor, 2007; Macrae, 2001; ICISS, 2001). Importantly, such emancipatory

notion developed together with the global civil society, and led to a decrease in the

number of genocides (from ten in 1989 to one in 2005), of non-state conflicts (from

36 to 24 between 2002 and 2006), and of ‘one-sided-violence’ against defenseless

civilians (from 38 in 2004 to 26 in 2006) (Human Security Report, 2007). In this

sense, the ICC represents a turning point in the global enforcement of HR, because it

embodies the first attempt to design a collective and permanent justice model and the

climax of such evolving process of non-state institutions and frameworks (Simpson,

2008; Mayerfeld, 2003; Keane, 2003).

In this changing international atmosphere, supporters of the ICC state that its

importance can be noticed primarily in its meaning, that is the increasing

internationalization of HR, for the purpose of punishing large-scale abuses

(Mayerfeld, 2003). Generally, criminal prosecutions are directed to perpetrators who

bear individual responsibility for criminal offences, and respond both to the moral

imperative of achieving feasible justice, as well as to the legal imperative to meet the

obligations of the Rome Statute (US Institute of Peace, 2008; Kritz, 1995). The ICC is

certainly controlled by central characters of its Statute -the complementarity principle

and the strict boundaries for prosecutable crimes and suspects - designed to restrain

the activity of the Court and inhibit legal fishing expeditions in order to detain a pre-

selected target (Mayerfeld, 2003). Ultimately, extraordinary international spotlight,

intolerant to any uneven conduct, is held over the Court, so that its prosecutions ought

to follow fair procedures and to be administered by qualified legal professional (ibid.;

US Institute of Peace, 2008). Hence, the Court is the most prominent attempt of

overcoming bilateral cooperation in penal matters –extension of political relations

between states in extradition, legal assistance, transfer of criminal proceedings,

recognition of foreign penal judgments, intelligence and law enforcement

information- with a multilateral criminal law system (Bassiouni, 2008). Its

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significance as an apparatus of ‘post-conflict justice’ -commitment to justice and

accountability in the pursuit of domestic stability, security and democratic

governance- is the denotation of an advanced stage of the evolving global movement

to protect fundamental HR (Bassiouni and Rothenberg, 2007). Accordingly, the Court

is a tangible manifestation of the global civil society’s ideal-type, within a

constellation of non-governmental structures and networks, which are self-aware of

their heterogeneity but united by goals common to all ‘social animals’ (Seneca in

Keane, 2003).

Secondly, the ICC prosecutes ‘the most serious crimes of concern to the international

community as a whole’ (Rome Statute Preamble, 1998). Indeed, it deals with

particular types of crimes, which extreme level of atrocity differentiates them from

any others. Such aberrant actions- genocide, crimes against humanity, war crimes and

aggression- are committed during periods of massive and spread abuses, such as civil

wars and internal disorders, and are perpetrated by repressive or authoritarian rulers

(Mendes, 2010). They derive their international character both from the high level of

cooperation necessary for their repression, as well as from their likability to produce

spill-over effects, such as migration of people, spread of terrorist and criminal groups,

arms and drugs proliferation and poverty (Schabas, 2011; Villalba, 2011). Crucially,

they result in the victimization of the entire humanity, since theirs systematic planning

and execution menace the shared principles of the international community and their

horrendous nature threatens its integrity (Schabas, 2011).

Thirdly, although criminal prosecutions aim to the sole punishment of the main

perpetrators of HR’s violations, their subsistence becomes extremely relevant because

such acts typically remain unpunished, since they are authorized or orchestrated by

the same government or armed faction locally in charge (Mayerfeld, 2003; Simpson,

2008). Therefore, the ICC’s importance largely resides in its inhibition of, both, the

impunity that such grave crimes may otherwise possess, as well as their enactment as

a policy (ibid.). Leaders of insurgent groups and national governments, staining of

such crimes, were not convicted for their deeds before the foundation of the Court:

oppressors such as Idi Amin, in Uganda, or Jean-Claude Duvalier, in Haiti, left their

countries after the commission of horrendous crimes (Quinn, 2013). To this extent,

indictments by the ICC against the principal perpetrators of HR atrocities, provide a

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society with the accountability necessary to advocate the respect of HR norms and

standards (Simpson, 2008; Mayerfeld 2003). The absence of legal restrictions to the

power of authoritarian rulers and warlords, specifically in the context of the weakness

or strength of democratic institutions, certainly enables repression, as ‘punishment for

atrocities is a non-starter where atrocities are the reigning policy’ (Mayerfeld,

2003:98; Schmitz and Sikkink, 2012).

Fourthly, the necessity to punish perpetrators and to deter future crimes represents the

core rationale of the Court’s action (Quinn, 1995; Kritz, 1995). Such punishment is

significant for the protection of HR, precisely because of its expected capability to

prevent similar atrocities to happen in the future (ibid.). Nevertheless, oppressive

leaders will discipline their conducts only if they perceive the full authority of the

justice system and its viability as an international institution (Schmitz and Sikkink,

2012). In other words, the concrete outcomes of the ‘deterrence effect’ -inhibition for

future crimes to occur- predominantly depend on the capability to carry out successful

retributive actions (Mendes, 2010). Indeed, in the case of Rwanda and elsewhere,

deterrence was limited by the failure of international actors to raise the perceived

costs of violence (ibid.). Similarly, the right of physical intergrity, that every

individual possess, depends on the existence of a reliable intimidation that violators of

such right will be indicted (ibid.). Additionally, punishment possesses educative and

expressive functions which may follow trials, as well as constructive functions of the

prosecutions which precede it (Osiel, 1997). The formers, communicates the

willingness of the society members to condemn the past violations, while the latters

denotes an occasion for a painful but open and clear discussion about the past (ibid.).

Furthermore, the ICC embodies a move forward the International Criminal Tribunals

for Rwanda and Yugoslavia (ICTR, ICTY) established during the 1990s, because it

comprises a unique permanent system, not founded on an ad hoc basis, together with

the development and consolidation of four particular areas of international criminal

law, advanced from the statutes and decisions of the ICTR and ICTY (Martinez Vi-

vancos, 2010). First, the Rome Statute articulates with more precision prohibitions

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against sexual crimes; second, it encompasses war crimes provisions both to internal

and international conflicts; third, crimes against humanity do not demand the presence

of an international conflict to be considered; finally, immunity based on official ca-

pacity is not accepted (ibid.). According to The Monitor (2013-14), the value of the

Statute resides in the fact that for the first time an international treaty labels a whole

series of sexual and gender-based abuses as crimes against humanity and it includes

HR violations such as forced pregnancy and sterilization.

Besides, the ICC’s worth concerns its response to the ‘political obstacles to

prosecutions’, that commonly emerge in the aftermath of a civil war (US Institute of

Peace, 2008:4; Quinn, 2013). As a matter of fact, domestic courts may be limited by

fragile political contexts, where the perpetrators of HR violations has become part of

the new government, or where the lack of independency and transparency diffused a

sense of injustice, unreliability and bias among the local population (Kritz, 1995; US

Institute of Peace, 2008). Significantly, the ICC offers the possibility to local courts,

characterized by weak technical capacity, to better address the complexity and large

patterns of abuses (ibid.). In this sense, it resembles the hybrid model of prosecution,

in its willingness to respond internationally to domestic frailties, precisely in regard to

the capability needed for guarantee fair trials in the aftermath of a civil war (ibid.).

Also, the significance of the Court depends on the ability to cooperate with other non-

judicial mechanisms, which deal with the social implications of violent conflicts

(Quinn, 2013). For instance, in situations where massive HR violations have occurred,

the evident impossibility to prosecute all the perpetrators may create ‘impunity gaps’,

between the great scale of violence and the few number of individuals hold

accountable (Simpson, 2008:6). This controversial issue raised the alert of the

political and academic sphere during the 1990s, and boosted the elaboration of TJ,

directed towards the rebuilt of societies in the period after HR violations (ibid.). The

term was created in 1995, after the publication of Transitional Justice: How Emerging

Democracies Reckon with Former Regimes, edited by Kritz (Villalba, 2011). The

central postulation is that every state that have experienced high levels of mass

brutalities should engage in processes designed to produce justice for past atrocities, a

peaceful and democratic society and a recognized rule of law (ibid.). In this sense, TJ

is an essential element for the protection of HR, since is enclosed in the framework of

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peace-building measures- procedures to prevent conflict and to provide peace,

stability, and prosperity (Roht-Arriaza, 2006). Collier and Hoeffer (2004), argue that

without peace-building actions, states tend to reverse into conflict within five years of

the signing of a peace agreement. Hence, the key value of the ICC for HR’s

protection, relies in its usefulness as a TJ mechanism, which can be associates to

financial reparations, truth seeking initiatives, institutional transformations and

Disarmament, Demobilization and Reintegration (DDR) strategies, which go beyond

the prosecution of the sole perpetrators (Simpson, 2008). The Court ought to be

incorporated in the broader field of TJ, in order to reach a balance between backward

and forward-looking justice, as well as to address the broad pattern HR violation

(Stensrud, 2009). Specifically, the work of the ICC, denotes a particular type of TJ -

retributive justice- concerning legal prosecutions and the safeguard of the rule of law

(Mendes, 2010). Such kind of justice is grounded on the notion of retribution or

punishment for the crimes committed, through trials that enhance HR’s protection in

countries experiencing transitions and, more importantly, in neighboring countries

(Quinn, 2013; Kim and Sikkink, 2007). As an instrument of TJ, the ICC’s worth relies

in its capacity to respond to highly controversial issues: decisions are not taken by

victorious parties, but rather address the concerns of the population as a whole;

second, it ensures that the negotiation of peace settlements and the change of the

empowered regime do not result in the concession of amnesty for the perpetrators of

heinous acts; third, the ICC supports the capacity of the legal system, which may have

been severely weakened during the execution of violence (Quinn, 2013).

However, it is very difficult to evaluate the impact that processes of TJ can have on

the deterrence of HR violations, due to the pace needed for the process to be

completed (Villalba, 2011). Opponents of the ICC, such as the United States of

America, underline the difficulties that the Court faces in the pursuit of the HR

protection, and argues that such limitations significantly undermine the nature and

capacity of the institution as a whole (ibid.). Firstly, the operation of the Court is

understood in terms of a ‘peace versus justice’ dilemma, meaning that the imposition

of justice mechanisms from external actors may negatively affect the reconciliation of

members within a society (Glausius, 2009). In accordance with this view, peace,

amnesties and statutes of limitation have to be pursued in the first place, even if this

undermines the obligation to investigate, prosecute and punish the guilty (Villalba,

7

2011). Conversely, a research conducted in Northern Uganda, employing

ethnographic and quantitative methods, has shown how people in the afflicted

territories do not conceive the relationship between peace and justice as irreconcilable

(Glausius, 2009; Simpson, 2008). On a sample of 2,585 people surveyed, only the 5%

declared willing to renounce to justice indefinitely, even if this would result in the end

of the conflict and in the provision of decent food and shelter (Pham et al., 2005). The

attainment of peace, in the eyes of the victims and communities interviewed, seems to

be a priority in the short period, but it does not deny the need for justice in the

medium and long term (Simpson, 2008). Hence, peace appears to be considered a

‘precursor’ needed for justice to materialize, rather than an ‘alternative’ to it (ibid. :5).

Actually, the belief that the arrest warrants of Lord Resistance Army’s (LRA)

members would compromise the peaceful relations between the two factions of the

conflict, was opposed by clear evidences: the LRA engaged in peace negotiations

after the arrest of five warrants, providing the possibility for both trials and peace to

develop in the country, together with the ‘Agreement on Accountability and

Reconciliation’ (2007), which provides a further element of the possibility for peace

and justice to coexist in the country (Glausius, 2009). According to Otim and Wierda

(2010:5) the ‘the gains derived from this peaceful period are deemed to be permanent,

and a return to conflict in northern Uganda is becoming more difficult to imagine’.

Secondly, ICC’s critics denunciate problems of distant justice and lack of outreach

-‘direct channels of communication’ (Ramirez-Barat, 2011:7)- with post-conflict soci-

eties, and victims in particular, in order to rise awareness and understanding of the

justice process (Glausius, 2009). The ambition of creating a system of TJ with both

restorative and retributive outcomes and the inclusion of fundamental rights for vic-

tims constitutes a long and adverse process (The Monitor, 2013-2014). Yet, ‘Despite

significant efforts, the Rome Statute system is currently falling short of achieving the

potential of delivering meaningful and restorative justice to the men, women and chil-

dren who have been victims of unimaginable atrocities’ (ibid.:1). Such problems are

marked by delays in the provision of justice as well as by confusion in defining how

victims’ rights and participation can be concretely exercised. Also the huge number of

applications sent by individuals willing to take part to the proceedings, as well as the

activities of victims’ protection and effective communication, seriously challenge the

8

work of the ICC (ibid.). However, these difficulties are connected to the lack of ade-

quate resources and to the high degree of complexity of the situations in the affected

countries, and they do not surely reflect the lack of willingness of the Court to protect

victims’ rights. To address these problems, the Court is currently developing the ‘Vic-

tims and Witness Unit’ and gender-justice and children issues policies, as well as be-

ing in charge of the costs of legal representation for indigents individuals joining the

trials, towards a ‘victim-oriented approach’ of criminal law (ibid.:1).

Thirdly, opponents claim that the principle of complementarity entails national

governments as the essential actors for HR implementation, and confines the ICC to

the position of substitute if states miscarry their duties (Glausius, 2009). However,

one issue of primary importance in the Court’s impact is the incentive for national

governments to intensify their national enforcement of HR (Mayerfeld, 2003). Indeed,

state parties that desire to prevent ICC intercession will increase prosecutions and

preventive means to impede future violations, as well as implement the Court’s

decisions (ibid.). In this sense, the value of the ICC relies in its designation of HR

standards, which pressure member states on the relevant issues through ‘follow-up’

processes -monitoring steps taken at the national level to fulfil observations,

recommendations and judgments (Mendes, 2010).

Fourthly, high levels of objection have been raised over matters of compensation for

victims of HR’s violations, since these individuals often struggle to survive and they

expect some degree of assistance (Glausius, 2009). Therefore, it is crucial for victims

to be aware of the goals and limits of the formal trial procedures, so that the frustra-

tion derived from deceitful expectations can be contained (US Institute of Peace,

2008). Although operating in areas afflicted by dramatic poverty lines and health and

food insecurity, it is very difficult for the ICC to assist victims, unless their testi-

monies are not crucial to an ongoing case, because the ‘official role of victims’ is cir-

cumscribed to offer ‘witness testimony in a formal procedure’ (US Institute of Peace,

2008:5; Glausius, 2009). Nevertheless, a positive advancement in this sense is the cre-

ation of the Trust Fund for Victims (TFV), which attempts to decrease the gap be-

tween the victim’s expectations -in psychological and material terms- and what the

ICC can offer them (ibid.). Such deposit can currently rely only on voluntary contri-

butions, but it becomes operative as soon as an investigation is announced (ibid.).

9

Importantly, the fact that the ICC was created despite the opposition of the United

States, the world’s hegemon, proves that its birth was stimulated not principally by

the signatories’ states, but rather by transitional lobbying forces coming from the

global civil society (Fehl, 2009). Hence, the Court resembles an example of social

construction, developed through the universalization of HR norms and their constitu-

tive effects on international justice in post-conflict societies (ibid.). For instance,

member states are identified by the standards and principles of international criminal

justice, notwithstanding their implementation of the Rome Statute and ICC’s deci-

sions (ibid.).

In conclusion, the analysis operated on the ICC, as a stimulus on the protection of HR,

reveals a variety of positive innovations, both for the creation of a new legal frame-

work and for the possibility to combine retributive justice with other TJ’s paradigms,

within a more holistic approach, to adequately respond to the large and complex pat-

terns of abuse of transitional societies. However, the effects of the Court’s work will

depend entirely on the impact and credibility, so that it needs to invest in outreach

programs, which will reduce the gap between its initial goals and the perceived neces-

sities of the affected society. Ultimately, this is a crucial element in the ICC’s man-

date, because it involves the capacity of the judicial system to engage with the public

and to derive its legitimation in order to gain greater impacts on HR protection. Being

a product of transitional global civil society networks, the ICC needs to continue its

engagement with ‘vibrant civil society organizations’ (Simpson, 2008:9), such as

HR’s NGOs and victim groups, to spread a sense of acceptability among the affected

populations, derive information and provide early warning of HR abuses. The subsis-

tence of the ICC will be contingent to its rightfulness in the eyes of public opinion and

of the victims of HR abuses. As an example of global social construction, the Court

requires a continuous process of legitimization from the people it seeks to serve in or-

der to enhance its own ability, raise awareness of the justice process and promote un-

derstanding of the actions undertaken.

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