Prosecuting Violators of International Humanitarian and Human Rights Law - Essay Example

Prosecuting Violators of International Humanitarian and Human Rights Law The Merits and Limitations of the International Criminal Court (ICC) Introduction Severe crimes against humanity continue to avoid the attempts of the international community to deter and resolve them. The limitations of international law are increasingly shown with every human rights violation. Even the most unbearable attack on basic human rights, genocide, until now has been extremely difficult to eradicate (Riemer 2000, 17). To large numbers of people, and perhaps to majority of legal scholars, international seems not only incompetent but widely incapable in its capability of presenting workable solutions to these unashamed crimes (Popoff 2001, 363). Although international jurists may not agree entirely to this argument, an actual discontent should go with an examination of theoretical perspectives which are believed to offer answers to these stubborn issues (Popoff 2001, 363). Apparently, humanitarian and human rights law do not provide simple solutions as to how to deal with violations of the fundamental human rights of people in times of crisis. They embody judicious efforts to implement norms which ideally will become unanimously recognized and support the international community in its assessment of, and response (Kirsch 2001, 3), to these crimes. The international community has been triumphant in establishing an agreement on numerous norms in the arenas of humanitarian and human rights law. There is at present a solid set of laws, even though it evidently does not cater to every crisis or include every region (Kirsch 2001, 3). This code of rules will be raised to change as the problems confronting the international community assume new forms. Certainly, the implementation of the Statute of the International Criminal Court is a sign of the pace at which several sectors of international law are evolving. However, attaching new laws and building new foundations, although they are recognised by several nations, does not in itself offer reprieve to people whose rights are being violated (Grant 1997, 2). This paper will discuss the extent to which individuals and states that abuse human rights and violate international humanitarian law can be held responsible through international legal institutions. The discussion will focus primarily on the role, merits, and weaknesses of the International Criminal Court. International Legal Mechanisms for Violators of International Humanitarian and Human Rights Law The primary purpose of the formation of an international criminal court was to change a tradition of immunity for the perpetration of severe crimes, which has thrived and remains in existence significantly, with a tradition of liability (Sriram, Martin-Ortega & Herman 2009, 215). The formation of an international criminal court is in several contexts the finale of a chain of international attempts in such path. Nevertheless, those attempts have usually been unsuccessful for different causes, and, at any rate, have been greatly discriminating. The Tokyo and Nuremberg Tribunals, after the Second World War, expressed genuine confidence for the tradition of liability, but the facts of the cold war aftermath immediately surfaced (Popoff 2001, 363). The idea that individuals and states perpetrating the most serious violations of human rights law should be prosecuted disappeared, and a tradition of immunity resurfaced (Popoff 2001, 363). The discourse about the competence of international committees should be situated in a more enduring point of view. The influence of newly formed institutions like the informal committees cannot justly be weighed against that of established organisations like the International Court of Justice (ICG) and the Security Council (SC) (Bolton 2001, 167). The more recent institutions, like the International Criminal Court, should be given enough time to be perceived as a normal component of the international landscape, just like more established institutions, with a function that enforces itself as similarly transparent and indispensable, a function that is carried out alongside current institutions (Bolton 2001, 167). It should also be recognised that nobody supposes the ICC, by itself, to prevent all offences. According to Sriram and colleagues (2009, 215-216), the ICC should belong to a paradigm of mechanisms to preserve a tradition of liability, comprising heightened national prosecution of these violations, increased exercise of international authority, and better international collaboration in preventing international transgressions. Strengths and Limitations of the ICC Following the Statute of ICC, an agreeing state recognises the authority of ICC over all violations mentioned in the Statute’s Article 5, in effect developing unanimous jurisdiction over these offences (Popoff 2001, 364). States are not allowed to decide when they will or will not agree to the authority of the court. Nevertheless, specific requirements should be present before the ICC wields its authority (Rubin 2001, 153). The ICC can merely use its authority if the violations were perpetrated in a signatory state, or the indicted is a national of a signatory state or the state has recognized the authority of the court (Rubin 2001, 153). Signatory states cannot choose those violations for which they will agree to the jurisdiction of the ICC (Ratner & Abrams 2001, 64), creating better consistency in the forms of cases handled by the court. However, the lack of ability to try cases that concern non-parties can narrow ICC’s jurisdiction. States which fear prosecution will refuse to approve the Statute, and, per se, will stay protected from prosecution (Bolton 2001, 167). States that have breached laws of international human rights are those least expected to approve the contract; the ICC could ‘begin life without the authority to deal with most of the heinous crimes that inspired its creation’ (Popoff 2001, 363). These constraints to the authority of the court may make it hard to prosecute states and/or individuals who have been convicted once a trial is instigated. The seriousness of these issues will finally depend on the number of countries that will approve the treaty (Wigglesworth 2008, 12). Due to the fact that the ICC was not imagined as a replacement for national judicial institutions, the Statute offers a number of chances for parties to question the acceptability of cases. The court, generally, may just deal with cases when countries do not plan to take legal action themselves of if they are hesitant or incapable of doing so (Grant 1997, 2). After the indicter makes a decision that there is a justifiable ground for starting an investigation founded on the basis of a recommendation by a country or upon its own proposal, the indicter should inform all countries that would generally wield authority over the offences (Jokic 2000, 81). Non-party and party states are also allowed to question the acceptability of certain cases. A country can question the acceptability of a case if (Popoff 2001, 363): (1) the state is investigating or prosecuting the case, (2) the state has already investigated the case and decided not to prosecute, or (3) the state has already tried the accused and further prosecution would violate the Statute’s double jeopardy guarantees. As stated by Rubin (2001, 153), the International Criminal Court will exercise authority over the prosecutorial choice of a state only if it seems that the state will protect the indicted, if legal action by the state has been unreasonably postponed or if the state trials were only a ‘facade’. The defiance of a state to the acceptability of particular cases builds a system to evade the court’s jurisdiction (Mettraux 2006, 20). Furthermore, due to the fact that individual countries can take legal actions against violations, the Statute of the ICC appears to overlook the philosophy that the international community has as well-built a reason for reprimanding perpetrators of crimes against humanity as the individual state (Popoff 2001, 364). Permitting the ICC, nevertheless, to exercise authority when states are reluctant or incapable of prosecuting violators contributes to reliable implementation of international humanitarian and human rights law by making sure that offenders are prosecuted by a capable national or international committee (Popoff 2001, 364). Functioning under its authority stated in Chapter VII, the Security Council could also capably obstruct the authority of ICC by postponing cases for twelve months (Grant 1997, 3). Since the Statute of ICC necessitates a ruling of Security Council for such a postponement, one country will be unable to hinder the authority of ICC by exercising its veto power (Grant 1997, 3). The Statute of ICC permits the continuous renewal of the ruling of the Security Council, hence taking away cases from the court’s jurisdiction for an indefinite period (Rubin 2001, 154). In this way, the Statute of ICC allows political deliberations when a prosecution could be more damaging to international security and peace than letting the violations go on with impunity (Popoff 2001, 364). Basically, the major limitation confronting the effectiveness of the Statute of ICC was the opposition of the United States. The limitations of ICC may persist because of the unsettled matters that became obvious in the prosecutions of the Rwandan and Pinochet cases like insufficiency of resources, the lack of ability to take legal actions against some defendants, the possibility of increasing the odds of accountability for powerful nations, and unequal handling of state rulers and ex-rulers (Sriram et al. 2009, 214). The United States is a powerful nation, and since the authority of ICC is founded on approval by individual countries, the absence of the approval of the United States had major impacts on ICC’s success (Bolton 2001, 167). The approval of the United States of the International Criminal Tribunal for Rwanda (ICTR) and International Criminal Tribunal for Yugoslavia (ICTY), it has largely been reluctant to advocate extension of international human rights and humanitarian law (Bolton 2001, 167). Generally, numerous U.S. bureaucrats view the ICC’s founding of absolute jurisdiction as an attack on the autonomy of the United States. In particular, the United States is apprehensive that American troops dispatched or positioned across the globe could be exposed to politically-driven legal actions (Sriram et al. 2009, 217). In lieu of that, the United States advanced conditions that would guarantee that the ICC will not take legal actions against American combatants deployed for negotiation or NATO missions (Kirsch 2001, 4). The uncooperative arbitrator in the case of Pinochet emphasised that the problems created by the extension of international human rights and humanitarian law may plunge unduly on superpowers (Popoff 2001, 364). The United States is implicated martially in numerous countries all over the world; its apprehensions are merited should the prediction of the nonconformist take place. The conditions of the United States are impractical in relation to the proclaimed goal of developing a reliable, cohesive set of convention (Popoff 2001, 364). The Statute of ICC involves a number of prerequisites intended to discourage politically driven legal actions (Grant 1997, 4). Inopportunely, numerous of the issues the ICTR confronts, like the insufficiency of financial resources to take legal actions against vast numbers of individuals, could not be settled by the ICC (Bolton 2001, 168). It is doubtful that the ICC will be capable of carrying out its responsibilities competently with the absence of these monetary assets. The court will be financially supported through appraised contributions by signatory states and the United Nations (UN) (Popoff 2001, 365). It is almost illogical to think that this system of financial support will reduce the monetary problems that are confronted by the UN and ICTR. The refusal of the United States to recognize the ICC has taken away a substantial funding source (Bolton 2001, 168). One of the major difficulties confronted by the ICC is the preconditions of its jurisdiction. These prerequisites permit a state to evade the authority of the court merely by declining to endorse the Statute (Jokic 2000, 105). Until ICC institutes a set of convention, it is indefinite how it will deal with issues of state impunity (Wigglesworth 2008, 15). If the court were to institute unequal handling of state rulers and ex-rulers, most of the issues with the case of Pinochet will continue (Wigglesworth 2008, 15). In particular, it will generate an encouragement for despots and oppressors to strengthen their grip to authority. Ultimately, because the ICC embodies a substantial growth of international human rights and humanitarian law, it normally puts a constraint on the autonomy of individual countries (Popoff 2001, 365). Nevertheless, the 20th century expressed the necessity to perpetrate violations that are extremely atrocious they upset the sense of right and wrong of the future international community (Popoff 2001, 365). The agreements and laws of the recent five decades have manifested the mounting aspiration of the international community to launch standards to guide international human rights. The International Criminal Court could offer a productive system for implementing these standards and make sure that they will not be breached with immunity (Sriram et al. 2009, 218). States have an innate concern with the judgment to put on trial violations perpetrated within their region. This privilege is directly connected to the ways in which a country characterises itself and preserves security, stability, and peace (Rubin 2001, 155). This right should not be invaded without due consideration. Conclusions Efforts to reprove violations of human rights and humanitarian law over the recent decades have been weak and, in the case of Pinochet, unsound (Popoff 2001, 365). The International Criminal Court is the expected outcome of the informal ICTR and ICTY and have in common numerous of their advantages. Nonetheless, its stability will eliminate some of the difficulties innate in these temporary methods. Possibly the exact motive for forming the ICC is that it could prohibit events such as the case of Pinochet. If implementation of international humanitarian and human rights law was conducted in the system of the case of Pinochet, it would absolutely be ruled by political law and not the principle of law. The court embodies the most favourable prospect so far of generating something bearing a resemblance to law separate from issues of foreign and political policy. To the point that the court embodies advocacy for the exercise of self-governing tribunals contrary to national courts for the implementation of the set of conventions of the international community, it is a constructive action in the formation of this set of laws. The International Criminal Court will still confront a lot of difficulties before it can start working successfully. The approval of the United States and most of the countries are needed to guarantee its achievement. References Bolton, J. (2001) “The Risks and Weaknesses of the International Criminal Court from America’s Perspective,” Law and Contemporary Problems, 64(1), 167. Grant, S. (1997) “Matching Rhetoric with Action: The Challenge of an International Criminal Court,” Criminal Justice Ethics, 16(2), 2+ Jokic, A. (ed.) (2000) War crimes and collective wrongdoing: a reader. Maldern, MA: Blackwell. Kirsch, P. (2001) “The International Criminal Court: Current Issues and Perspectives,” Law and Contemporary Problems, 64(1), 3+ Mettraux, G. (2006) International crimes and the ad hoc tribunals. Oxford: Oxford University Press. Popoff, E. (2001) “Inconsistency and Impunity in International Human Rights Law: Can the International Criminal Court Solve the Problems Raised by the Rwanda and Augusto Pinochet Cases,” The George Washington International Law Review, 33(2), 363+ Ratner, S. & Abrams, J. (2001) Accountability for human rights atrocities in international law: beyond the Nuremburg legacy. Oxford: Oxford University Press. Riemer, N. (2000) Protection against Genocide: Mission Impossible? Westport, CT: Praeger. Rubin, A. (2001) “The International Criminal Court: Possibilities for Prosecutorial Abuse,” Law and Contemporary Problems, 64(1), 153+ Sriram, C., Martin-Ortega, O. & Herman, J. (2009) War, Conflict and Human Rights. UK: Routledge. Wigglesworth, G. (2008) “The end of impunity? Lessons from Sierra Leone,” International Affairs, 84(4). Read More