HISTORY OF THE ICC

Although the buildings of the International Criminal Court (ICC) are far removed from the scenes of the crimes with which its judges, prosecutors and defence attorneys are concerned, it is by no means isolated from the growing body of international criminal law.  The ICC forms a part of the network of international and national courts which uphold the values and enforce the standards of international criminal law and contribute to the protection of victims of genocide, war crimes and crimes against humanity. 


Development of international criminal justice

Despite extensive criticism of the Nuremberg Trials (Nuremberg) for being tainted by ‘Victor’s Justice’, they are often cited as the starting point for international criminal prosecutions.  Although the law has since developed substantially, Nuremberg established three significant precedents: individual (rather than state) responsibility for war crimes; the recognition of crimes against humanity; and the concept of universal jurisdiction, which enabled any willing country to prosecute individuals for the most serious international crimes, regardless of where those crimes were committed. 
 
The Nuremberg precedents were bolstered by the Geneva Conventions of 1949, which recognised both individual criminal liability for “grave breaches” of the conventions and universal jurisdiction.  In the same year, the International Law Commission proposed the establishment of an international criminal court. The 1985 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment also recognised the universal jurisdiction and crimes against humanity.  While the international community has contemplated and discussed the development of an international criminal court for many years, the Cold War hindered its development until 1993. 

War tribunals

As a result of the atrocities committed in the Balkans, the United Nations Security Council (SC)established the International Criminal Tribunal for Yugoslavia (ICTY) in 1993, and shortly thereafter, as a result of the atrocities committed in Rwanda, the International Criminal Tribunal for Rwanda (ICTR) in 1994 (referred to collectively as the ad hoc Tribunals).  Suddenly, international criminal law was shown to have teeth. This encouraged further recognition of universal jurisdiction, which was evident when General Pinochet was arrested in 1998 and tried in the United Kingdom for international crimes he had committed in Chile. 

Both the ad hoc Tribunals have contributed significantly to the jurisprudence of international criminal law and have shown the world that trials for international crimes can be fair, bring some form of justice to the victims, and contribute towards the healing of communities which have suffered as a result of these crimes. 

While the international community grappled with how best to bring justice to victims in Germany, Chile, the former Yugoslavia and Rwanda (amongst others), various regional human rights courts and bodies were developing a similarly rigorous jurisprudence, which  placed a positive obligation on States to investigate violations of human rights (see for example, Case of Velásquez-Rodriguez v Honduras Inter- Am. Ct. H. R. (Ser. C) No. 4 (1988), Muteba v Zaire Communication No. 124/1982, Case of Bámaca-Velásquez v Guatemala Inter-Am. Ct. H. R. (Ser. C) No 70 (2000)). 

These developments dovetailed with the expansion of international criminal law, indicating increasingly widespread support for the effective investigation and prosecution of atrocities including torture, disappearances and extrajudicial, summary and arbitrary executions.


Impact of the Rome Statute

The ICC was therefore established in the wake of a 60 year growth period of prosecutions of genocide, war crimes and crimes against humanity.  The drafters of the Rome Statute did not envisage that the ICC would operate in isolation – particularly since it only has jurisdiction in limited circumstances.  The ICC operates under the principle of complementarity. This means that primary responsibility for the investigation and prosecution of crimes lies with individual states.  The ICC will only step in where a State party is ‘unable or unwilling’ to investigate international crimes. The ICC and national criminal justice systems are thus intended to be interdependent.: In the long term, this unified global criminal justice system will contribute to strengthening justice for victims of genocide, war crimes and crimes against humanity.