The International Criminal Court celebrates its 20th anniversary with the greatest challenge in its history: to rule on the crimes of extermination in Ukraine

The International Criminal Court celebrates its 20th anniversary with the greatest challenge in its history: prosecuting war crimes in Ukraine

The International Criminal Court (ICC) opened its doors in the Netherlands two decades ago and made little noise. A vanguard of eight officers settled on July 1, 2002 in what was then only a temporary building but which already housed the first permanent Tribunal for combat crimes, crimes against humanity and extermination. It was a milestone in international reason and still the strongest warning yet to those most responsible for the worst crimes. Immunity not being recognized because of his function, any political, military or maquis leader could respond in the presence of 18 magistrates of different nationalities. Twenty years later, the headquarters of the International Criminal Court is an imposing building on the road in the coastal district of The Hague, there were three chief prosecutors and the court faces the greatest challenge in its history: to investigate and try the crimes committed. in the extermination of Ukraine.

The ICC has yet to secure a final judgment against a president, but the standards of the Rome Statute, its founding text, have helped promote universal demarcation, allowing national judges to hear cases of this nature. However, it has an unresolved double subject. For one group, it needs more support from its 123 members to get to more cases, like they did after the Russian invasion of Ukraine. This is the first time that 40 countries have asked prosecutors to investigate the atrocities committed during this extermination. Its owner, the Saxon lawyer Karim Kahn, has not yet debuted in a unique form of cooperation. It works with the so-called Joint Investigation Team (JIT), which includes Poland, Lithuania and Ukraine itself, in addition to Estonia, Latvia and Slovakia. Together they collect and store evidence which will then be used to prepare possible cases of crimes of extermination or crimes against humanity in the Ukrainian region.

“Ukraine has invited the ICC prosecutor’s office to investigate crimes committed in its region by officials of another government, in this case Russia, which is almost a novelty. Prosecutors are usually asked to do the same, but with designated rebel forces. Here we are dealing with government officials from another state and this is a golden opportunity for Kahn to demonstrate the effectiveness of his position,” says Reed Brody, member of the International Commission of Jurists and leading advocate for victims. of the Chadian dictator. . . , Hisène Habré.

In a phone call from the United States, Brody immediately added that cooperation with Ukraine “is necessary and no one questions it given the obvious Russian attack” but that it poses a danger. “It’s the double stereotype. If you don’t want to be known as NATO’s authorized articulator, why are you acting alone in this case? The prosecutor is still responsible in Palestine and maintains that he does not have enough possibilities. He didn’t even demand them in the same way, and that’s a contradiction. Or the excerpt from the case of Afghanistan, [donde solo abordará los posibles crímenes de talibanes y el Estado Islámico (ISIS), y no los actos de las fuerzas estadounidenses]. It has to work the same way because there is a danger of instrumentalization. As if the penal policy of an independent prosecutor depended on the will of the member countries of the ICC, which must contribute to perpetuating it”.

Delphine Carlens, head of International Equanimity at the International Convention on Human Rights (FIDH), again points to the lack of cooperation of member states with the Court. According to her, “Investigating a case takes time and countries must plan for the arrival of experts and help with the execution of arrest warrants because the court lacks police officers. It is not only a political responsibility of States. This even includes dexterity. It even seems to him that the aid provided should not be selective. “Attorney Kahn has the authority to assist in other cases with the funds received. Especially at a time when the legality and credibility of the court are in serious question,” adds Carlens. To date, the ICC has heard 31 cases and judges have issued 37 arrest warrants. 21 prisoners were brought before the judges, 12 suspects are still at large. 10 verdicts were rendered and four defendants won the appeal.

Court Challenges

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The other side of this court’s unresolved issue is more difficult, if to the side. The United States, China, India, North Korea or Israel are not among them. They are not there. They are not retarded and sometimes interfere with their work. For example, when Russia and China vetoed the UN Security Council in 2014, preventing the investigation of crimes committed in Syria from reaching the ICC. If Syria is even a member of the tribunal, the UN can refer the cases to the tribunal’s prosecution, but the brake has been imposed on the two powers. “In these 20 years, reason has been incomplete in the world, always thanks to what the court represents. As in the case of Hissène Habré, dictator of Chad between 1982 and 1990. The African Union wanted to show that it could judge him on the continent itself, and Habré was sentenced to life imprisonment in slavery in 2015,” says Reed Brody.

For the seasoned, “the spatial distance of certain judges who are not on the surface of the fact must be qualified as a design flaw”. What happened with the survey in Kenya is a tangible example. “It is very difficult to give the reason from a distance when a country refuses to do so. The Kenyan government controlled the crime scene, evidence, witnesses, everything. And TPI had to turn back”. In 2014, prosecutors dropped the mental health of Kenyan President Uhuru Kenyatta for alleged crimes against humanity following the 2007 elections. The joint prosecutor at the time, Gambian Fatou Bensouda, charged him with responsibility. vicarious for the crime of approximately 1,300 civilians, but was unable to gather evidence. .

There have been other failures. As in the case of Jean-Pierre Bemba, former vice-president of the Democratic Republic of Congo. In 2016, he was sentenced to 18 years in prison for crimes of extermination and crimes against humanity committed under his command by the Movement for the Exemption of Congo (MLC). In 2018, the Appeals Chamber acquitted him on the grounds that “he cannot be held criminally responsible for these atrocities”. Yes, extermination lords have been convicted, like Congolese Thomas Lubanga, who spent 14 years in prison between 2002 and 2003 for recruiting child soldiers. And it was decided that forced bonding and coercion is a crime even in extermination. In 2022, Dominic Onwen, a former Ugandan boy soldier, was sentenced to 25 years in prison, among other crimes.

For Brody, there is already an “ecosystem of international reason in the world that deserves to be shielded, which is somehow possible thanks to the ICC”. Its translation is the project of an international and permanent investigation mechanism “able to work where the ICC cannot date”. “Today, there are mechanisms for Myanmar, Syria and Daesh (Islamic State) to share their evidence with national courts. These are new forms of reason, more agile, which do not interfere with the ICC”. If the first criticisms have faded because the accusation was supposed to relate to Africa, Carlens underlines that the Court must provide structural support to the victims and make effective an adequate reparation, whether economic or symbolic and collective. He clarified that until now “the moment when the victims are at the center of the Rome Statute depends in part on the interpretation of the judges”. Consent enshrines your active ticket.

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