Peace or Justice: The ICC’s Role in the Protection of Human Rights

By Liz White

Prosecutor of the International Criminal Court, Luis Moreno Ocampo, left, President of the ICC Judge Philippe Kirsch, center, and President of the ASP, Prince Zeid Ra’ad Zeid Al-Hussein take a minute of silence at the opening of the third session of the Assembly of States Parties, the legislative body of the ICC, in The Hague, Monday Sept. 6, 2004. The governing body of the International Criminal Court opens a week of negotiations to consider a budget for 2005, when the first trials may begin into war crimes in Congo and Uganda.(AP Photo/Fred Ernst)
“(…) The most serious crimes of concern to the international community as a whole must not go unpunished (…)” -Preamble to the Rome Statute of the International Criminal Court (1998)

Following the Second World War, the global community was faced with the challenge of rebuilding a world torn apart by some of the worst atrocities in history. It was in this context that the Universal Declaration of Human Rights, the foundation of the human rights framework, was adopted in 1948. It was in the same year that the Convention on the Prevention and Punishment of the Crime of Genocide was adopted, in which the idea of a permanent international criminal court was first suggested, though it was not for an additional 50 years for the idea to come to fruition. The two entities, in both their conception and goals, share an indisputable interconnectedness.

While the International Criminal Court, which was established to prosecute the gravest violations of international law: war crimes, crimes against humanity, and genocide, is not a human rights court, per se, the Court plays an important role in the protection of human rights. Despite the widespread adoption of the Declaration of Human Rights, as well as the additional treaties established for the protection of human rights, their mere existence and support is not an insurance of protection of human rights by all States. On the contrary, violations of fundamental human rights still occur globally.

The human rights framework establishes a number of fundamental human rights that are to be protected, but does not include a means of effectively enforcing their protection. Without such a mechanism for enforcement, the treaties serve only as a reminder of the importance of rights. While there are human rights courts that exist in the framework, such as the Inter-American Court of Human Rights and the European Court of Human Rights, the disputes adjudicated by these courts involve grievances against States, rather than individuals committing crimes. The ICC fills this gap by prosecuting individuals who have committed serious violations of international law. While courts exist for the punishment of individuals, their punishment also strives to serve as a deterrent for other potential perpetrators of crimes. One of the goals of the ICC is to deter the worst violations of international law as a means of protecting fundamental human rights.

An exterior view of the International Criminal Court, where former Ivory Coast President Laurent Gbagbo is set to appear for the first time to face four charges of crimes against humanity in The Hague, Netherlands, Monday, Dec. 5, 2011. (AP Photo/Peter Dejong)

The impact of the ICC as a means of effectively enforcing the human rights framework and deterring violations of those rights remains in question, however. Given that most, if not all, of the crimes prosecuted by the ICC occur in the context of conflict, the establishment of peace would theoretically decrease the violations of human rights. This issue has raised significant debate. For the ICC, the establishment of justice takes precedent over the establishment of peace in their role as a court, though the Court acknowledges, “that justice is an essential component of a stable peace.” Notably, in Article 53 of the Rome Statute, the Prosecution is obliged to take into consideration the interests of justice and victims before starting an investigation. The Office of the Prosecutor interprets the interests of victims as generally weighing in favor of prosecutions, and therefore “seeing justice done,” though the protection of victims is also considered. The Court emphasizes, “the broader matter of international peace and security is not the responsibility of the Prosecutor,” but that it is an important consideration. If the Court has a deterrent effect, despite prioritizing justice, it will also aid in the establishment of peace.

An analysis of the impact of ICC investigations would aid in examining their role in the protection of human rights. The nature of the work of the Court makes it difficult, however, to quantifiably determine the impact of the Court on the establishment of either peace or deterrence of future crimes. It is, therefore, unsurprising, but still problematic, that no one in the Office of the Prosecutor or any other organ of the Court systematically examines the impact of the Court’s work. There are a number of scholars who have attempted to examine these questions, however, but interpret the research differently. Michael Broache asserts that while executed indictments by the ICC contribute to the prevention of atrocities, outstanding indictments exacerbate crimes. Hyeran Jo and Beth Simmons also point to a conditional effectiveness of the Court in deterring crimes. Payam Akhavan suggests that any deterrence is incremental, but that slow change is still fundamental. These outside perceptions of the Court, however, can only have a limited impact.

As the ICC enters its fifteenth year of existence, the Court should begin to evaluate their work, not in terms of numbers of cases, but for the impact of the prosecutions. Do cases before the Court play a role in establishing peace, or is justice best received after the conclusion of a conflict? Does the prosecution of an actor in an ongoing conflict exacerbate the situation for the involved citizens, resulting in more violations of human rights, or is the Court an effective deterrent? Given the role the ICC can play in filling the accountability gap for the international human rights framework, the Court should take on this responsibility by making its work as effective as possible in preventing future violations of human rights. This can only be possible through a systematic and continued evaluation of the impact of its investigations and prosecutions in order to determine best practices, and while outside parties have begun conducting such research, an adoption of the same practice by the Court will allow not only for in-depth research to be done, but also for an implementation of the findings of such work. An effective Court can play a monumental role, in collaboration with the existing human rights framework, in the protection of the most fundamental human rights.