[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.
