ICC – UAB Institute for Human Rights Blog

Hungary Leaves the International Criminal Court

Earlier this month, Hungarian Prime Minister Viktor Orban declared that the country would withdraw from the International Criminal Court (ICC), becoming the first European Union member state to pull out of the decades-old global institution. This decision came during Benjamin Netanyahu’s visit to Hungary, where Orban refused to comply with his ICC-mandated responsibility to arrest the Israeli Prime Minister, thus rejecting the legitimacy of the court’s arrest warrants. Though an individual incident, this event is indicative of a global shift away from international institutions, raising concerns regarding the future and authority of the ICC and global organizations as a whole. As numerous countries, the United States included, fight against democratic backsliding, international law is crucial in ensuring democratic standards are upheld, making this withdrawal worth monitoring.

What is the ICC?

The ICC is a permanent international court designed to prosecute political officials and military members following their initiation or continuation of international law violations, specifically targeting perpetrators of genocide, crimes against humanity, war crimes, and crimes of aggression. Unlike the International Court of Justice, the United Nations’ branch that pursues cases between nations, the ICC functions independently from any pre-existing international organization and focuses solely on individual responsibility and perpetration of crimes.

The idea of establishing a court of global accountability originated after World War I; however, the largest push came after World War II and the global outrage surrounding the Holocaust. While an international court had yet to be established, ad hoc tribunals were created, prosecuting Nazi military and political officials. In between then and the court’s creation, other ad hoc tribunals have been organized, such as the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda. These events popularized the establishment of a permanent, global court. In 1998, the UN General Assembly met in Rome, finalizing a treaty that would then become the Rome Statute, the foundational document of the ICC. 120 countries voted to establish the court, and by 2002, the statute was adopted, gaining the necessary 60 ratifications needed for it to enter into law, thus granting the ICC international legitimacy and authority.

Under the Rome Statute, the ICC is given universal jurisdiction, meaning that perpetrators of international law violations can be tried even if the events occurred in another country. This also grants the court the ability to investigate allegations, with claims being brought to the ICC or based on the suspicions of the institution. If the court finds that an individual has likely played a direct role in the initiation or continuation of a crime outlined by the ICC, an arrest warrant will be issued. As part of ratifying the Rome Statute, member states assume the responsibility to comply with these rulings and are expected to detain those who receive arrest warrants if they enter the nation’s territory. After detention, trials are conducted, and a final ruling is eventually made. Since the court lacks an overarching enforcement mechanism, this organization relies heavily on state compliance to maintain legitimacy. Without this, the ICC loses its prosecutorial power and therefore its purpose.

Large meeting at International Criminal Court. Seats in a semicircle around a large screen and panelists — Image 2: ICC Assembly of States. Source: Yahoo Images

Why is Hungary’s Withdrawal Important?

Though Hungary’s absence won’t single-handedly undermine the ICC’s functional capacity, it does signify the country’s shift away from global institutions and further descent into authoritarianism. Since Orban took office in 2010, the country has become an “illiberal state,” a term Orban uses with pride. This reality is demonstrated in his views on international institutions. When discussing his reasons for withdrawing, Orban expressed that “Hungary has always been half-hearted” on its commitment to what he stated was the “political court” of the ICC. Furthermore, under his regime, Hungary has isolated itself from the democratic values of the European Union, with Orban having captured public institutions and the formerly independent media. He has undermined judicial independence, creating a government oversight committee that tracks the domestic courts and placing partisan judges in politically important positions. Orban has also been consistent in his support of Vladimir Putin, criticizing EU-imposed sanctions on Russia and openly condemning support for Ukraine. These actions have ultimately isolated the country from the Union and its foundational values, thus undermining the EU’s efforts to foster a unified Europe.

Hungary’s rejection of the ICC is also representative of the current global climate, as there has been an international decrease in support for global institutions. Since the issuance of Netanyahu’s arrest warrant, several countries, such as Belgium, Germany, and France, have remained unclear as to whether they would comply with ICC orders, disregarding their responsibility as set out under the Rome Statute. Similarly, Europe has seen a rise in Euroscepticism, or a distrust in the authority of the European Union. This perspective has pervaded several powerful political parties throughout Europe, such as the Alternative for Germany Party in Germany, the Freedom Party in Austria, the Law and Justice Party in Poland, and the Georgian Dream Party in Georgia. These parties have openly criticized the authority granted to the EU and the need for sovereign countries to align their policies with an overarching institution. Meanwhile, numerous countries are reverting to conservative, traditional cultural and political norms, further increasing hesitancy toward a liberal international order that advocates for equality and progressive policies.

This shift is not unique to Europe, as the United States has also been open in its rejection of the ICC and other international institutions. Recently, the Trump administration has placed sanctions on ICC officials, signifying distrust in the court. Furthermore, the US has withdrawn from the Paris Climate Agreement, the World Health Organization, and certain branches of the United Nations. With one of the world’s hegemonic powers withdrawing and delegitimizing international institutions, it is understandable why this perspective has been normalized on a global scale.

Hungarian PM Orban talks at a European Union podium, with EU flags behind him — Image 2: Orban talks at the EU. Source: Yahoo Images

The Case for International Law and the ICC

While many argue that international law and institutions violate a country’s sovereignty, the reality is that this relinquishment can be viewed as necessary to ensure long-term stability. Historically, nations have been seen as fully autonomous, lacking international institutions to follow; however, this autonomy allows countries to encroach on the rights of others, whether domestically or internationally, thus creating instability that jeopardizes the rights and safety of individuals. By surrendering some control over an independent nation to an international body, sovereignty can be enhanced. For example, by allowing international policy to dictate environmental policy, sovereignty could be strengthened by enabling countries to live without fear of climate-related destruction. In the case of the ICC, by granting a global court the authority to enforce international law, egregious behavior can face punishment, hopefully deterring these actions and thus providing greater long-term stability. In other words, relinquishing some domestic power to an international agency can enhance aspects of sovereignty as countries can live without fear of external encroachment on their rights. So, while international law might not yet be perfect, there is an argument to be made that it is worth attempting to fix rather than rejecting it altogether.

Conclusion

Hungary’s withdrawal from the ICC is representative of a broader shift away from the modern-age liberal order. Though its absence won’t directly interfere with the court’s ability to try violators of international law, it does bring into question the future of the ICC and other international institutions, as numerous countries, both within the EU and beyond, see a decline in their support of democratic values and global organizations. However, not all hope is lost; if current member states can uphold their commitments to the Rome Statute, the ICC can remain a powerful authority and deterrent against committing egregious crimes. In doing so, trust in the ICC can be consolidated, ensuring it and other global organizations play a role in the future of international politics. Because of this potential, international law remains a cause worth advocating for, as it can help ensure long-term stability during a time of global uncertainty.

Are We Failing Syria Yet Again? Response to the Chemical Attack on Syrian Civilians

Destroyed city of Azas, Syria. Source: Creative Commons, Christiaan Triebert.

One of the worst chemical attacks turned a rebel-held area in the north of Syria into a death zone. Bombs were dropped from war planes in the early morning of April 4, 2017 and the spread of poisonous gas started shortly thereafter. Close to 70 people died, with pictures of dying children and grieving relatives going around the world. The Syrian military accused insurgents, but it seems clear that only the Syrian government has the ability to carry these types of bombings. Shock and condemnation was the reaction of governments and the public around the world. Two days later, President Trump ordered airstrikes, his first military action while in office.

Why this outcry and action now? People have been dying in Syria for months and years – think Aleppo – and the response has been, for the most part, fairly limited. We have seen dying children and assaulted women, airstrikes on civilian areas, and death and suffering everywhere. I would argue there are three reasons for this strong response, both in the public and in the political realm.

The footage of the attacks themselves.
The violation of most important rules of international law.
A new administration in the White House.

Let me explain.

Source: Creative Commons, Códice Tuna Colectivo de Arte.

First and most obviously, it is the footage of children and older adults struggling to breathe, frothing at their mouths, and lying motionless in the mud as aid workers desperately try to help. It is the incredible grief by a father, who lost 22 members of his family in the attack, and who can be seen clutching the bodies of his 9-month-old twins. It is the level of individual suffering that most of us can relate to as human beings with families of our own, and the gruesomeness of the attack shakes us to the very core.

However, there is a second reason why this attack is cause for special consideration. The use of chemical weapons rises to the most serious violation of fundamental principles of international law: (1) the deliberate targeting of civilians is a crime against humanity, the “worst of worst crimes” and on par with genocide, and (2) the prohibition of the use of chemical weapons in warfare is one of the most widely acknowledged and respected rules of the international law of war.

Crimes against humanity are deliberate, systematic attacks against civilians or a significant part of the civilian population. Crimes against humanity were first described and prosecuted in the Nuremberg Trials at the conclusion of WWII and have since entered international criminal law as one of the major crimes for prosecution of individuals. While there is no international treaty specifically dealing with crimes against humanity, the Statute of the International Criminal Court lists mass murder, massacres, dehumanization, genocide, human experimentation, extrajudicial punishments, death squads, forced disappearances, recruiting of child soldiers, kidnappings, unjust imprisonment, slavery, cannibalism, torture, mass rape, and political or racial repression (e.g., apartheid) as crimes that reach the threshold of crimes against humanity if they are part of a widespread or systematic practice.

The prohibition of the use of chemical weapons has its origins in the late 19th century. Shortly after the establishment of the International Committee of the Red Cross (ICRC) in 1864 – the institution that oversees international humanitarian law, also known as the “law of war” – states decided to regulate and ban weapons that inflict excessive and unnecessary harm to the people affected by war (e.g., the Hague Declaration concerning Asphyxiating Gases of 1899). The horrific injuries sustained by soldiers from poisonous gas in WWI and experiences of both combatants and civilians in later conflicts (e.g., in Vietnam) accelerated these efforts, which resulted first in the Geneva Gas Protocol (1925) and then in the Chemical Weapons Convention (1993). The Chemical Weapons Convention prohibits the use of chemical weapons in all circumstances, which means in both international (meaning between states) and non-international war (any other type of conflict, including civil wars). Only 13 states have not signed either the Geneva Gas Protocol or the Chemical Weapons Convention (Syria is not one of them). The prohibition of chemical weapons is a universal norm, which means that it binds all parties to armed conflicts, whether state or non-state actors, as a rule of international customary law.

This ban of chemical weapons is strengthened by the fact that it is illegal under international humanitarian law to use weapons that do not distinguish between military and civilian targets. So-called indiscriminate weapons are those that cannot be directed at a military objective or whose effects cannot be limited. Similar to the prohibition of the use of chemical weapons, this rule is not only international custom, but has also been affirmed in various international treaties, including the statute of the International Criminal Court and the Additional Protocol to the Geneva Convention. The UN General Assembly and other UN organs have supported this principle in multiple resolutions and the International Court of Justice, the highest court in the world, reaffirmed the principle of distinguishing between civilian and military targets in the Nuclear Weapons advisory opinion (ICJ, Nuclear Weapons case, Advisory Opinion). While there is no definite list of indiscriminate weapons, the ICRC generally cites chemical, biological, and nuclear weapons, anti-personnel landmines, mines, poison, explosives discharged from balloons, cluster bombs, booby-traps, certain types of rockets and missiles, and environmental modification techniques.

In other words, the chemical attacks by the Syrian regime on its own population broke two fundamental rules of international law.

Third, we have a new administration in the White House whose policy towards Syria and the Middle East is most likely to be very different than the one of its predecessor (it is too early to tell for sure). President Trump expressed that the use of chemical weapons in Syria “crossed a lot of lines for me” and changed the way in which he views the Syrian dictator Bashir Al-Assad. The decision to use airstrikes against Syria was made shortly thereafter. President Trump’s words, and in some way, his actions, remind us of President Obama’s reaction to the use of chemical gas against civilians in Syria in 2013. President Obama, who used the word “red line” in connection with the 2013 attack, also contemplated air strikes. However, in an unexpected turn around, Obama decided to seek congressional approval for military action against Syria. The proposed bill never received a floor vote because the Syrian government accepted a U.S.-Russian deal to turn over its chemical weapons stockpile and sign and ratify the Chemical Weapons Conventions.

Sunset at the White House. Source: Creative Commons, Ted Eytan.

What does this mean? Were the airstrikes legal? What are the political consequences? From a legal point of view, the situation is complicated, but more easily explained. Under international law, the use of force against another state is illegal, unless it is in self-defense, authorized by the UN Security Council, or on the invitation of the state affected. Security Council authorization is unlikely to happen considering that Russia is a veto-power holding member of the Security Council and has made it clear that it does not see the need for a condemnation of the attack. The U.S. has not given any indication that the airstrikes were in self-defense. Syria has certainly not invited the U.S. to strike its airbase. So, in most interpretations of international law, the airstrikes are illegal. President Trump said in a press conference in the evening of April 6 that “it is in this vital national security interest of the United States to prevent and deter the spread and use of deadly chemical weapons,” which could hint at a future justification of the airstrikes within framework of self-defense. There is some discussion over whether the unilateral use of force on behalf of civilians, also known as humanitarian intervention, should be seen as legitimate, if not legal. However, considering the situation in Syria and the U.S. military involvement against the Islamic State, Russia’s engagement, and the geopolitical situation, it would be very difficult for the U.S. to argue for a purely humanitarian justification of U.S. action. While the airstrikes authorized by President Trump were very limited – hitting a somewhat remote airbase – and no formal declaration of war has been made, Syria could very well see the airstrikes as an informal act of war.

Under U.S. law, the President may authorize military action for defense, but not for offensive wars. Offensive wars require congressional approval. Congressional approval was given for military action after the 9/11 attacks, which gives the President far reaching authority to combat terrorism. The Obama administration has interpreted this rule to include and authorize the fight against the Islamic State, and so far, the Trump administration seems to go along with this interpretation. Regardless, a war against Syria, a state, not a non-state actor, is a completely different beast. A war against Syria would most certainly need congressional approval, and members of Congress have already called for the administration to bring any future military action before Congress.

In terms of political consequences, it’s too early to tell if this was a one time engagement and what the Trump administration will do next. Russia’s involvement in Syria complicates matters as not only U.S.-Syrian relations, but also U.S.-Russian relations are at stake. Russia has reacted strongly and called the airstrikes a “significant blow to Russian-U.S. relations.” Either way, an in depth discussion of strategy will be important, especially considering that interventions tend to be much more complex and complicated endeavors than they first appear. America, as many countries before her, has learned this the hard way. And if we really want to help the “beautiful babies” in Syria, as President Trump claims, we need to open our borders to allow Syrian refugees to find safety.

However, while these discussions over legality and Russia-U.S. relations are certainly important, they are not sufficient. What we need to focus on is the question over what the consequences of military action will be. We cannot be distracted from what has to be the end goal: a political settlement of the conflict. Only a termination of violence and war will end the tremendous suffering of Syrian children, women, and men. Any military action has to be judged on whether it advances or hinders an end to the conflict.

What is the International Criminal Court and Why Should I Care?

Windows of the International Criminal Court (ICC) in The Hague. Source: Roman Boed, Creative Commons.

What is the International Criminal Court and how did it develop?

The ICC is not a substitute for national courts. It is the only court with global jurisdiction that a state can go to when it cannot carry out the investigation and trial of perpetrators that have committed war crimes, genocide, and crimes against humanity. It is also not to be confused with the Court of Justice which settles disputes between states. The idea of having an international court first developed in 1948 with the United Nations General Assembly (UN GA). In order to prevent atrocities such as the Holocaust from ever happening again, the UN GA adopted the Convention on the Prevention and Punishment of the Crime of Genocide. This convention called on criminals guilty of committing or creating a genocide to be tried by an international court that did not yet exist. Therefore, the International Law Commission (ILC) was brought in to assess the desirability and feasibility of creating a court with global jurisdiction. During the ILC’s process of drafting a statute, the Cold War halted efforts in creating such a court.

The discussion of establishing an international criminal court was not on the agenda of the international community for many years. It finally resurfaced in 1989 Trinidad and Tobago were battling massive drug trafficking. The UN GA once again called upon the International Law Commission to continue the drafting efforts that were abandoned in the early 1950s. The 1990s brought horrendous genocide, crimes against humanity, and war crimes from all over the world- particularly in Bosnia-Herzegovina and Rwanda. Due to the international climate at the time, the United Nations decided that it could not wait for an international criminal court to develop fully in order to take control of these crimes. Instead, the UN Security Council put in two ad hoc courts in order for individuals to be held accountable for these crimes – the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR).

The quest for a permanent international criminal court continued when representatives met in Rome, Italy, from June 15th to July 17th of 1998. A total of 160 countries participated in this conference with the goal of negotiating an international treaty that would serve as the basis for an international criminal court. With 120 votes in favor of such a court, the Rome Statute was adopted, officially creating what we know as the International Criminal Court. The ICC was established in The Hague in the Netherlands, on July 1, 2002 when the Rome Statute entered into force. However, the reach of the court was diminished by the fact that the following countries either did not sign or did not ratify the statute: Bahrain, China, India, Indonesia, Iraq, Israel, Kuwait, Lebanon, Malaysia, Nepal, Pakistan, Sudan, Thailand, Turkey, Ukraine, the United States, and Yemen. The absence of three permanent members of the UN Security Council – the U.S., China, and Russia – has been a particular challenge for the new court.

2812685155_ecc654c998_o — The International Criminal Court in The Hague. Source: Alkan Boudewijn de Beaumont Chaglar, Creative Commons

How does the International Criminal Court function?

There are four components that make up the ICC: The presidency, Office of the Prosecutor, chambers, and registry.

The Presidency

The presidency is the head of the court that consists of three judges who are elected by an absolute majority by the 18 judges that makeup the Court. One judge is the president and the other two are vice presidents who all serve two three-year terms. The presidency takes on a significant administrative role by representing the Court as a whole to the world and safeguarding the enforcement of sentences levied by the Court itself. It also helps organize the work of the judges.

The Office of the Prosecutor

The office of the prosecutor has one of the most important roles: They conduct investigations and prosecutions. The office of the prosecutor is mandated to “receive and analyze information on situations or alleged crimes within the jurisdiction of the ICC, to analyze situations referred to it in order to determine whether there is a reasonable basis to initiate an investigation into a crime of genocide, crimes against humanity, war crimes or the crime of aggression, and to bring the perpetrators of these crimes before the Court.” Within the office of the prosecutor, there are three divisions: the investigation division, the prosecuting division, and the jurisdiction, complementarity, and cooperation division. The former two divisions are self-explanatory, but the latter’s duty may be a little difficult to understand. The jurisdiction, complementarity, and cooperation division works with the investigation division in analyzing information that is received, as well as, evaluating situations referred to the Court. In order to have a case heard by the ICC, one must go to this division which will either approve or reject a case to be heard. They will judge the legitimacy of a case on the basis of the analyses of information pertaining to that particular situation.

The Chambers

The chambers’ responsibility is to guarantee and carry-out a fair trial. Similar to the office of the prosecutor, there are three divisions within the chambers: the pre-trial chambers, trial chambers, and appeals chambers. The eighteen judges plus the three judges in the presidency (for a total of 21 judges) are assigned to one of these three chambers. The pre-trial chamber is composed of seven judges with one to three judges presiding over each sub-chamber. Their job is to make sure that the investigation and prosecutorial proceedings are fair in order to protect the rights of suspects, witnesses, and victims. After these proceedings are completed, the pre-trial chambers decide whether or not warrants of arrest should be issued, as well as summons to the office of the prosecutor at their request. They also are responsible for confirming or not confirming the charges the suspect has been given. Current cases in the pre-trial stage are the Barasa case of Kenya, the Hussein case of Darfur, Sudan, the Al-Bashir case of Darfur, Sudan, and the Harun and Kushayb case of Darfur, Sudan.

The trials chamber works to ensure the fairness of the trial itself and that such a trial continues to appropriately comply with the rights of suspects. They are also responsible for the needed protection of witnesses and victims in necessary. Along with those roles, this chamber is the one that decides whether a suspect is guilty or innocent of the charges and if guilty, they determine the punishment whether that be through monetary compensation or going to prison (prison time cannot exceed thirty years to a life sentence). Current ongoing trials are as follows: the Gbagbo and Blé Goudé case of Côte d’Ivoire, the Bemba et. al case of the Central African Republic, and the Ntaganda case of the Democratic Republic of the Congo.

The appeals chamber steps in if the guilty plaintiff would like to appeal his or her trial or proceedings that the pre-trials chambers or trials chamber conducted. This chamber is made up of the President of the Court along with four other judges. Just like the appellate courts we have here in the states, the appeals chamber can amend, reverse, or uphold the prior chambers’ decision. In some cases, they may order a new trial with a different trials chamber. Currently, there is one appeals case- the Bemba case of the Central African Republic.

The Registry

The registry supports the Court administratively by ensuring a fair, impartial, public trial. More specifically, the ICC describes the registry as “the core function of providing administrative and operational support to the Chambers and the Office of the Prosecutor. It also supports the Registrar’s activities in relation to defense, victims, and communication and security matters.” Communication matters consist of having responsibility and authority over the Court’s primary information, as well as outreach services and activities.

600 persons visited the International Criminal Court (ICC) on Sunday, 29 September 2013, when it opened its doors for The Hague International Day. Visitors engaged with speakers representing the Judges, the Prosecution, the Defence, the Legal Representatives of Victims, and the Registry during an interactive session held in the ICC Courtroom in The Hague (Netherlands). They had the opportunity to participate in a one-hour presentation in the ICC public gallery. Questions from visitors focused on the various aspects of the Court’s work, including its mandate, structure and ongoing cases.

Why Should I Care?

In summary, the ICC is much more complex than one might think, and rightfully so. This Court gets the worst of the worst cases in terms of cruelty. They try individuals who have been accused of participating in genocide, crimes against humanity, war crimes, etc. In order to maintain a fair and impartial trial, there are many administrative roles within each division and chamber that work to achieve the goal of accountability. The ICC was a concept that had been thought of long before it was actually established and it is the only permanent international criminal court that tries individual perpetrators. Some may think that the ICC doesn’t really matter or holds no significant importance when it comes to trying and punishing individuals, but actually, the ICC has a very compelling role in such matters.