Emerging Voices: The Contribution of International Criminal Tribunals and Courts to the Development and Promotion of International Human Rights Law

[Clare Frances Moran is a teaching fellow in law at Abertay University, and is due to submit her PhD thesis at the University of Glasgow in late 2014.]

In the eight years since Cesare Romano’s assertion that the ‘season’ of international criminal law was coming to an end, the season appears to have turned into an Indian summer. During this summer, the focus of international criminal law has evolved. The formative debates on the significance of the idea of aggression and the conceptual boundaries of genocide have developed into a discussion on how to use such concepts in order to protect individuals, regardless of traditional concerns such as a state link or sponsorship of the violence. This shift in focus indicates a continued interest in the idea of international criminal law, and the aim of creating a system of international criminal justice, but with greater attention to the protection of individuals. As such, the reason for continuing interest in international criminal law can be explored in relation to two strands of reasoning: the fading of the State requirement, and the shared purpose of international human rights law, international humanitarian law and international criminal law.

The law of the initial international criminal tribunals – those of Nuremberg, Tokyo, Rwanda and the former Yugoslavia – focused on criminal conduct committed by those acting on behalf of States. Even the name of such tribunals gives away their aim: punishing those who have committed crimes while acting in official positions. Although the International Criminal Court looked a likely successor to these tribunals, it has taken a different direction with its prosecutions. Not a single defendant convicted or tried by the International Criminal Court to date has been affiliated to a state; the focus of the Court has shifted to the most serious situations, rather than those linked to acts on behalf of a State or committed by those representing a State. This premise represents a true departure from the origins of international criminal law in national military tribunals and the internationalised tribunals of Nuremberg and Tokyo. The trial of such individuals utilises the silence by the Statute on what may constitute an ‘organisational policy’ in the context of a crime against humanity. Many international lawyers would, in a similar vein, read into article 8 on war crimes the idea that the criminal activity was backed by a State, or at least that the State was complicit. However, this article is similarly restrained on mentioning the idea of a link to a State.

The lack of direct prosecutions against State officials is interesting, and the arrest warrants issued for certain Heads of State indicate that the idea has not yet faded into obscurity. There is substantial difficult, however, apparent in organising such prosecutions. Laurent Gbagbo, former President of the Ivory Coast, remains the first and only Head of State to be detained by the ICC. His arrest warrant was issued in 2011 and initial hearing to confirm the charges was adjourned in February 2013, with the charges against him confirmed only recently in June 2014. In postponing the hearing in 2013, the Court clearly stated that the seriousness of the charges underpinned its decision to give the prosecution more time, and invariably it seems that trying Heads of States and the decision-makers of the piece is more complex. This again demonstrates the priority that the Court is giving to the seriousness of the crimes, rather than the link between the State and the individual.

The number of prosecutions which have been raised against individuals who are part of groups which are non-state actors further indicates a shift away from the traditional focus on the State. The reduction of the number of States which engaged in armed conflict with one another makes it less likely that States ought to be the central focus of the Court, and that its mission to prevent impunity would be better served by ensuring that those who breach international criminal law and international humanitarian law are prosecuted. The recent crimes committed by Boko Haram in Nigeria and ISIS in the Middle East indicate that the discipline is evolving with the world.

The focus is invariable on the promotion of international human rights and international humanitarian law by the Court, an evolution precipitated by the work of the previous international tribunals. This protection exists to cement the rights of the individual regardless of issues of statehood, circumstance of the violation or the existence of armed conflict, which was previously a central issue for international humanitarian law. International criminal law thus offers the opportunity for human rights and international humanitarian law to be fully enforced by the international community without relying on the existence or co-operation of the State to guarantee protection for the individual. The creation of the International Criminal Court has allowed the Prosecutor to lead cases against individuals on behalf of the international community where serious violations of international criminal law and international humanitarian law, both of which encompass many norms of international human rights, have been committed. This leads us neatly to the second strand of reasoning: the shared purpose of each discipline.

Although the basis of international humanitarian law was for the protection of soldiers in order to humanise battle, the Geneva Conventions’ recognition that civilians ought to be protected as well heralded another discipline focusing on the dignity of the individual – a concept which was developed extensively during the twentieth century. The three disciplines of international humanitarian law, international criminal law and international human rights law share this aim. However, the International Criminal Court is the only enforcing body for any of the three forms of law. The reliance of international human rights law and international humanitarian law on a domestic court for enforcement can be problematic, particularly in situations such as the examples mentioned above, where the State has little or no control over the non-state actor. It could be argued that international criminal law has evolved to fill the vacuum created by States which are failing or which have failed in this respect, but it seems more likely that the common purpose of the three disciplines has allowed for a natural, and welcome, conflation of purpose. The protection of the individual has reached an apex, and the International Criminal Court is the ideal vehicle to achieve the justice required to affirm the dignity of all individuals.

The discipline has continued to expand and inspire greater focus on individual rights. The most interesting part of this expansion is the way in which it has shifted the focus of international law, from simply that of international crimes and their definitions to a focus on the individual. International criminal law has become, of necessity, intertwined with human rights and a realisation of the need to protect individuals from the abuse of power, irrespective of by whom that power is wielded. The season of international criminal law is yet to end, and its cross-pollination with the aims of international humanitarian law and international human rights law has ensured that it has developed into a tool for preventing the commission of international crimes with impunity, with a focus on the protection of the dignity of the individual at its core.