The International Criminal Court was developed in the 1990s to “hold accountable those who commit international crimes such as war crimes,” according to former chief prosecutor of the Special Court of Sierra Leone David Crane. In addition to war crimes, international criminal law was created to prosecute national heads of state who commit genocide, crimes against humanity or crimes of aggression.
At Allegheny College, Professor of Political Science Shanna Kirschner has been teaching a short course on international criminal law. On Monday, April 16, students taking the course participated in a town hall in Quigley Auditorium on the controversies surrounding the subject.
The students chose what topics they wanted to focus on and were divided into four groups, according to Kirschner. The first explored whether the ICC was biased or not, since the majority of trials and prosecutions have taken place in Africa.
“The largest advocate that [says] the ICC’s bias is Kenya,” Katrina Steckler, ’19, said. “And ever since the ICC issued a warrant for the arrest of president al-Bashir of Sudan in 2009, many African countries have pushed this idea of bias, and have been the forefront runners of wanting to separate from the ICC.”
While some point to the large presence the ICC has had in Africa, others refute the claim that the ICC is biased for a number of reasons, according to Steckler. They have a limited jurisdiction, meaning they can only prosecute certain types of crimes, and many of the prosecutors within the ICC have African decent.
Focus then shifted from who the ICC decides to prosecute to how they are able to do so. The second group of students investigated how the ICC holds any power without an independent enforcement mechanism.
“Citing the Rome Statute, countries agree to effectively be the enforcement for the ICC,” Gabe McIntire, ’20, said.
The Rome Statute is the treaty that created the ICC, and was adopted on July 1, 2002. Members of the town hall raised the question of whether or not there should be an absence of an enforcement body.
Students presented various arguments for why the ICC can operate without an independent enforcement mechanism. Often times, the people want justice because of the atrocities committed by their leaders. Also, others argued the development of such a mechanism would be incredibly expensive and have other logistical challenges, like deciding who would be in charge of such a force.
“We also feel like the obvious solution to this would be to create an international police force,” McIntire said. “We just don’t think that’s realistic because we don’t feel like most countries would be able to be governed by an international police force, because who’s in charge of the police force, who provides the troops, who would pay for it?”
However, other concerns were addressed at the town hall that displayed the necessity to have a body that can enforce international criminal law.
For example, when al-Bashir attended a conference in South Africa, he was not arrested despite being found guilty of genocide by the ICC. South Africa had signed the Rome Statute, but refused to arrest al-Bashir because they did not have jurisdiction.
Heads of state like al-Bashir, Charles Taylor and many others have been tried and found guilty by the ICC since it was enacted in 2002. The next question students explored was who should be held responsible for these crimes, since most of the killings were ordered by heads of state, and not physically conducted by them.
Included in the Rome Statute was “superior responsibility,” which stated military leaders were responsible for crimes committed by their troops, according to Adam Miller, ’18.
“The things that make them qualified to be tried would be that they knew of the crimes, or that they should have known about the crimes being committed,” Miller said. In addition to this, fail to take reasonable action to prevent the crimes or to report it to their superiors.”
Some students argued being in a position of power justifies the responsibility leaders have over their troops and the crimes they commit. Issues of practicality were also brought up, as Crane pointed out prosecuting one leader is much more realistic than 100,000 troops.
Counter arguments stated both leaders and their troops should be held responsible, since not prosecuting those who physically committed the acts does not send the right message to others who may cause harm in the future.
The last group presented about the tradeoffs between justice and peace in countries the ICC prosecutes heads of state or members of the military. Trevor Mahan, ’21, explained a couple of the tradeoffs, like reconciliation versus prosecution.
“You want to make sure that people are being prosecuted and getting that justice that they deserve,” Mahan said. “But at the same time you want to make sure that the victims are moving on, [and] are reconciling with the process.”
As victims move on, their safety should be considered as well, according to Mahan.
“Ultimately, another tradeoff is the safety of victims and perpetrators,” Mahan said. “You don’t want more chaos coming about. After atrocities happen, you have victims who are in fear of their lives still because these smaller men are still out there.”
The town hall began with questions on how “international justice is conducted on the ground,” according to Kirschner. It moved on to explore larger questions like “what is the legal process in the international sphere,” and “is this the best way to approach questions of crimes against humanity.”
“The first couple of groups were thinking about narrower questions about how the ICC itself functions,” Kirschner said. “Our latter groups were asking bigger questions about how international criminal law and how international justice is conceptualized and is carried out.”