The effectiveness of international criminal courts

The twentieth century marked humanity with an unprecedented progress in technology, health and economic development. At the same time, it is sadly remembered for mass scale crimes committed by state officials of instituted governments. The absence of an international institution with the authority and capacity to prosecute those crimes has always been a weakness of international law. By the turn of the century, the adoption of the Rome Statute of the International Criminal Court (ICC) was a major step forward. As a court of last resort, the ICC has the authority to investigate and prosecute international criminals when national courts have failed.

The ICC was conceived as a backstop to local efforts to bring international criminals to justice. Under the principle of “complementarity” codified in the Roman Statute, the ICC will assume jurisdiction only when national courts are unwilling or unable to investigate or prosecute the matter themselves. The ICC has some flaws, though. First, it does not allow for tailored judicial process sensible to the particularities of the specific people involved. Any transitional justice process should take into account these variables. Second, because of its general subject jurisdiction as opposed to the specific subject jurisdiction of special tribunals, the ICC still faces the opposition of some world powers, particularly the US. Third, the Rome Statute limited the matter jurisdiction of the ICC to genocide, war crimes, and crimes against humanity. However, the record shows that not doing so would have probably aborted the whole ICC idea.  

Before the born of the ICC, special international criminal courts were appointed to deal with specific international crimes, as was the case of one set up to prosecute the responsible of the Rwanda’s genocide during the 1990s. The International Criminal Tribunal for Rwanda was established by the United Nations Security Council in 1994. The uncertainties related to rules and procedures that followed its establishment added to the general public skepticism. As a consequence of this lack of framework, during the time elapsed until the Security Council adopted its resolution and finally set up the court, hundreds of thousands of people were killed. At the end, more than 800,000 people were killed in Rwanda’s genocide. 

Today, fourteen years later, former senior defense official Theoneste Bagosora has been convicted of instigating Rwanda’s 1994 genocide and sentenced to life in prison. Bagosora and two co-defendants were found to have led a committee that plotted the massacre of ethnic Tutsis and moderate Hutus. It is the first time the Rwanda tribunal has convicted anyone of organizing the killings. Along with Bagosora, former military commanders Anatole Nsegiyumva and Alloys Ntabakuze were also found guilty of genocide, crimes against humanity and war crimes, and given life sentences.

Whether the existence of a court or the codification of an act as a crime is a determent for law breakers is a never ending sociological discussion. In any case, no legal institution or proceeding can erase the suffering that comes along with crimes. That does not mean they should not exist.

The ICC, the International Criminal Tribunal for Rwanda and other special international criminal courts have been under fire because of their struggle to impose penalties for major human rights violations the world have witnessed during the last decades. Despite the validity of some of those critiques, it is unfair to measure their success by the number of indicted or convicted international criminals. The mere existence of these international criminal courts is a major accomplishment for the international community and a breakthrough in the development of an international rule of law. Today´s convictions are a huge step towards that direction.

Iván García Zapata

Iván García Zapata es conferenciante en la Escuela de Derecho de la Universidad de Puerto Rico. Enseña cursos de Investigación y Redacción Jurídica. Obtuvo una Maestría en Derecho Internacional y Relaciones Internacionales de la Universidad Complutense de Madrid y una Maestría en Administración Pública de la Universidad de Columbia en Nueva York. Además, es Contador Público Autorizado (actualmente inactivo).