In 2020, I got the opportunity to study:
International Law In action -- Investigating and Prosecuting International Crimes..
For our final essay, which was totally optional we were asked to write an opinion piece: supported by empirical evidence.
Opinion Piece: What Can Be Done To Make International Criminal Justice More Effective?
Background of Crime and Punishment: Criminal Justice is practiced nationally and internationally for the purpose of providing crime deterrence. Eighteenth century Positivist attributed crime to scientific determinism identifying; biological, psychological and sociological traits for committing crimes. Whilst, philosopher and classical criminologist Cesare Beccaria, proposed that punishment must fit the crime to be an effective deterrent. Similarly, Jeremy Bentham(1), another classical criminologist coined the idea of utilitarianism, as a means of determining the level of pain in response to pleasure received; as well as the greater good for sustaining humanity. Society came up with systems of punishment under the Retributive system, meant to condition behavior, so preventing crime. This was the expectation, however there were no solution for perpetrator/s who believed they are smarter than the system, and therefore would simply not get caught.
Beccaria made reference to law and crime, “No Crime Without Law.” Hence law determines what is a crime based on respective infringement/s. Did you ever think there would come a day when not wearing a face covering would be defined as breaking the law? Or that your restaurants would be classified as non-essential services; where opening your business could be deemed malicious, and you could be fined thousands of dollars? The world has changed, it is not the 18th., century, but the 21st,. century and COVID-19 is a household name.
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In the 21st., century, society is realizing that retributive punishment based on the adversarial system of justice, has only accelerated the problem with the availability of modern technology. Hence, it is time to also phase out the way punishment is meant to work as deterrence, while preventing recidivism. Simply caging people like animals changes their behavior and not for the better, because social environmental influences designed to be impartial; often fails and such failures have phenomenal impact on humanity. A most alarming example here is World War II (WWII), where the social environment eroded with pillaging and destruction resulting in; genocide, war crimes, crimes against humanity and aggression. To this day crimes against humanity remain unsolved, whilst those in authority across the globe all say we want peace, but there are continuous threat of war!
Theories of Crime and Deterrence
Footnotes:
(1) Classical Criminology, (Crime and Criminology - Chapter 4), http://my.ilstu.edu/~jawalsh/Sp13/CJS_201/ch4_choice/Chapter42.html
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It is about time we work to strengthen the social system of networking at home and globally; for the benefit of everyone. Possibly seeing crime as a handicap in society, and realizing that retribution, or revenge simply keeps us suspended in time. More and more various justice system are considering restorative justice and victim reparation; this is also true with International Criminal Courts.
Having said that: What Can Be Done To Make International Criminal Justice More Effective?
By: JoY-PSE, with a Degree in Social Science & Criminal Justice, Nursing education and experience, as well as many works of Art as an artist working with Oils and Acrylics.
Author References:
Dr. Carsten Stahn, International Law In action -- Investigating and Prosecuting International Crimes, Universiteit Leiden (Online), Coursera, https://www.coursera.org/learn/international-law-in-action-2
Betrand, G. Ramcharan, Preventative Diplomacy At The United Nations, UN Chronicle, https://www.un.org/en/chronicle/article/preventive-diplomacy-united-nations
Dr. Dan Plesch, Global Diplomacy The United Nations In The World, SOAS University of London,Coursera, https://www.coursera.org/learn/global-diplomacy-un#instructors
United Nations Umbrella Organizations, FSI Transition Center, https://2009-2017.state.gov/documents/organization/207704.pdf
Word Count: 3,952
Keywords/Phrase: International Criminal Courts and Tribunals, War Crimes, Genocide, Restorative Justice, Victim Reparation.
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Highlights:
- In 1945, following WW II global nations united to form the United Nations, in hopes of avoiding such catastrophic destruction of humanity and human values.
- In the 21st., century nations tend to turn on one another on home soil, leaders and those in authority becomes complacent until it is much too late. Then what follows are mass atrocities on home soil, communities divided, and so forth. This gave rise to the International Criminal Tribunal of Yugoslavia, International Criminal Tribunal of Rwanda, Special Court of Sierra Leone, and so forth.
- Within the hierarchy of the United Nations interventions such as; International Criminal Courts (ICC), International Court of Justice (ICJ), are used to prosecute perpetrators for injustices against humanity; by ensuring they remain accountable for crimes committed.
- Restorative Justice approach that includes victim reparation, are essential tools in the 21st., century; reparation can be more meaningful when focused on building community resources, providing jobs and infrastructure expansion, intended to strengthen foundational development.
- Society as a whole need to recognize that Retributive Justice, is not an answer when it comes to addressing crime and building social networks. Notably, some level of crimes do need to be addressed by utilizing the Retributive system, but those are not nearly as frequent as crimes caused through social injustices.
Introduction
The International Criminal Justice System (ICJS): The International Criminal Court (ICC), represents one of six main principal organs of the United Nations, namely: the General Assembly, the Security Council, the Economic and Social Council, the Trusteeship Council, the International Court of Justice, and the UN Secretariat. The UN and all 6 of the principal organs were officially introduced to the world in 1945, following World War II(2). “The name "United Nations", was coined by United States President Franklin D. Roosevelt and was first used in the Declaration by United Nations, dated January 01, 1942, during the Second World War." However, the International Criminal Court is the only principal organ of the UN, not located in the United States of America; it is located in Netherlands, at the Peace Palace in the Hague(3). The role of the ICC, is investigating and Prosecuting International Crimes, which began with the inception of Rome Statute (1998), providing guiding principles of law for prosecution of international crimes, within the International Criminal Justice System (ICJS)(4).
The Rome Statute was ratified in 2002, by 60 States, and adopted by 120 States (less States are willing to sign, because they may also be criminalized for atrocities). The ICJS is systemically aligned to our National and International prosecutorial process; legitimized by nations contribution and cooperation. The ICJS incorporate works of United Nations (UN) representatives (of world nations) as well as, Courts such as; the International Criminal Court (ICC), the International Court of Justice (ICJ), International Tribunal of Natural Justice (ITNJ), International Human Rights Courts/Tribunals, and other pervading Hybrid courts/tribunals, including Mixed Domestic-International courts, and courts with Regional Jurisdiction(5). Hence, making it possible to coordinate investigations nationally, or internationally (domestic or foreign). International crimes are defined under the broad umbrella of: Genocide, Crimes against humanity, War crimes and Aggression(6). Goals of the International Criminal Court (ICC) and Tribunals, as well as the International Court of Justice (ICJ), are intertwined in a bold agenda to re-establish peace and security of nations, by prosecuting perpetrators of mass atrocities against mankind.
Footnotes:
(2) United Nations, (n.d), https://www.un.org/en/sections/about-un/main-organs/index.html#:~:text=The%20main%20organs%20of%20the,Justice%2C%20and%20the%20UN%20Secretariat.
(3) About The United Nations, https://www.un.org/en/about-un/index.html
(4) International Criminal Court. Rome Statute of the International Criminal Court. CourP’enale Internationale, (n.d), https://www.icc-cpi.int/resource-library/documents/rs-eng.pdf
(5) United Nations And The Rule Of Law, https://www.un.org/ruleoflaw/thematic-areas/international-law-courts-tribunals/international-hybrid-criminal-courts-tribunals/
(6) P. Dejong, ‘Trying Individuals For Genocide, Crimes Against Humanity, War Crimes, and Aggression,’ Cour P’enale Internationale, (n.d), https://www.icc-cpi.int/about
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ICC and Tribunals, including the ICJ, are institutions functioning under the jurisdiction of the United Nations (UN). Whilst, the UN remains a complex organization, it was created to replace the League of Nations, after WW II; identifying failures of the League. The UN, functions primarily within 6 principal organs, which includes 193 member countries/States(7). The UN must have cooperation from member States to achieve the mandate of securing world peace(8). Therefore, states/countries, as well as individuals expect this work for achieving peace is a real possibility. Hence, it is of particular significance that perpetrators are held accountable. Contributions off; ICC and Tribunals, ICJ, Human Rights courts/tribunals, and members’ State Justice institutions are essential to align the mandate for peace realization, and elimination of crimes against humanity.
What Can We Do To Make The International Criminal Justice System More Effective?
Challenges of the ICC, ICJ, Hybrid Courts, Mixed-Domestic Courts, Regional Courts, ITNJ, as well as Human Rights Courts and Tribunals
States often become the perpetrators of: genocide, war crimes, crimes against humanity and aggression. Therefore, proving to be unwilling participants in promoting international justice, when their very moral and ethical identity is corrupt. Such inadequacies is a reflection of turmoil; therefore lacking integrity in the application of procedural measures in their own criminal justice system (national courts, policing, correctional institutions, and more).
States or countries, tends to evade the international justice system, as can become customary, even vowing to abstain from signing, or ratifying the Rome Statute, if they are not guaranteed immunity. One such example here is, the African Union (AU), at their 30th summit (January, 2018). AU members, sort to leverage immunity during the gathering of sitting Heads of States, by approaching the United Nations General Assembly (UNGA), for an advisory opinion from the International Court of Justice (ICJ). Further in September, 2018, Kenya followed by recommending that, immunity for sitting “Heads of States” at the ICJ, be part of the UNGA agenda(9). This behavior revealing members of the AU intention in attempting to use their 30th, summit to resist prosecution of sitting Heads of States, at the ICJ/ICC.
Footnotes:
(7) Member States of The United Nations, https://en.wikipedia.org/wiki/Member_states_of_the_United_Nations
(8) UN, ‘United Nations Peacekeeping,’ UN, https://peacekeeping.un.org/en/mandates-and-legal-basis-peacekeeping
(9) P. Pillai,‘The African Union, the International Criminal Court, and the International Court of Justice: At the Fault Lines of International Accountability.’ American Society of International Law, August 22, 2018,. Volume: 22, Issue 10, https://www.asil.org/insights/volume/22/issue/10/african-union-international-criminal-court-and-international-court
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Further, international justice impartiality is questioned when referrals can be made from the UN Security Council (UNSC); for immunity regarding prosecution. Calling into question the legitimacy and independence of the ICC, or the ICJ. Rome Statute, article 13(b), is blocking fairness, impartiality, effectiveness and total independence of international prosecutions. If member States of the UN Security Council, could simply leverage resolutions to avoid prosecution of “Heads of States;” how effective is the ICC, or the ICJ? Perhaps one strategy, or recommendation capable of restoring the effectiveness of the ICC, is the amendment of the Rome Statute, article 13 (b), allowing referrals from States, to the UNGA, or the UNSC, only in extreme circumstances. For the ICJS to be more effective, special consideration for “Heads of States” with the ICC, or ICJ(10), should not meet the threshold for referrals. These are the very actions that bring institutions of international criminal justice, under disrepute.
If individuals in authority are not respected, they tend to compromise the proper functioning of the entire institution/s, and States are also less likely to cooperate.
The work of international criminal justice system, is an uphill battle, organizations are only as good as those serving with powers of authority. Individual conduct within the ICC, are rumored to be less than satisfactory(11); how can this very institution responsible for imparting justice be impartial? Similarly, if one member State relationship within the ICJS, is built on manipulation, favors, or other less credible behaviors, then others learn to expect the same level of methodological inadequacies. Therefore, bringing disgrace to the work of the ICC, ICJ, the ICJS and the UN; only with global trust involving mutual cooperation can credibility be built for improving the functional effectiveness of International Criminal Justice. Another strategy, or recommendation for improving the effectiveness of International Criminal Justice, is to have a system of zero tolerance involving preferential treatments for sitting “Heads of States;” this will improve credibility globally, and States will not expect engagement in such dialogue.
Footnotes:
(10) International Law and International Legal Thought, ‘Victor’s Justice Contested,’ Voelkerrechtsblog, 2016, https://voelkerrechtsblog.org/articles/victors-justice-contested/
(11) E. Wilmhurst, ‘Strengthening The International Criminal Court,’ Chatham House (2019), https://www.chathamhouse.org/expert/comment/strengthen-international-criminal-court
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Systemic value of reciprocity when working nationally, or among nations can be a suitable means of exchanging good will. This can be seen with the exchange of labour for money, or some other agreed upon tangible worth. Other social aspects of traits built utilizing reciprocity is mutual respect, neighborly behaviors and so forth. Problems arise when people pretend to have good intentions, and is not wholly in support of reciprocity, but finds other covert means of rejecting what is good, and mutually beneficial for all. This is manipulation and causes harm, because one party intends to benefit while the other party does not!
Some States, or countries use their positions of power to make extremist decision intended to protect international criminal perpetrators on home soil. One example, is the Ugandan government’s acting to intercept justice for victims, while protecting perpetrators. Crimes of great human atrocities, were committed under the authority of the Lord Resistance Army (LRA). The LRA, under the protection of authorities in the Ugandan government reeked havoc in, ”Uganda, the Democratic Republic of the Congo, and the Central African Republic.” After the ICC, got involved this government declared amnesty from prosecution for 26,000, soldiers; thirteen thousand of those soldiers worked for the Lord Resistance Army(12). Very admirable that the ICC, did not cave, they went ahead with the prosecution of those perpetrators with leadership responsibilities; as described under "Joint Criminal Enterprise (JCE)." The ICC, is more interested in those individuals responsible for setting in motion atrocities against humanity.
A Government denying their citizens justice is a corrupt government, these governments rule with the sword. Facilitating any consideration of such behaviors with immunity/amnesty for; Heads of States, or other perpetrators working on behalf of governments, would make International Criminal Justice appear ineffective. Investigating and prosecuting perpetrators are very costly and time consuming; any interference of the process defies the logic that guided the creation of the ICC.
Footnotes:
(12) ICTJ (Justice, truth, dignity), ‘Is Uganda Judicial System Ready To Prosecute Serious Crimes?’ ICTJ, 2015, https://www.ictj.org/news/uganda-kwoyelo-case
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International criminal justice is a subset of crime prevention; in maintaining peace and global unity. While goals, of establishing transitional justice for the creation of standardized norms nationally and internationally, requires strong participation from member States to eradicate international crimes; and promote overall victim and societal reparation(13). Societies benefit more through collective victim reparation, but the inclusion of victims are often challenging due to; masses of victim claims, and difficulty collaborating those impact statements. A recommendation here could be creating a better methodology to the madness, when it comes to determining the threshold of victim-hood. Perhaps having specific guidelines can be more worthy; one may benefit from knowing that the ICC does not classify sentencing of crimes in relation to minimum and maximum as is customary at the national level. However, it maybe more beneficial to classify victim status, by the severity of their exposure to the criminal element; to help with the reparation process and victim selection.
For society to have true justice, there must be reparation for victims, and a system of classification that can work to simplify the process. As it is today, reparation and victim statements are coordinated by groups, or legal entities. Hence, not everyone are included and there tend to be those who benefit significantly, and those who are left out. Leaving such decision-making to groups mean the leaders of those groups benefit the most, and can also be partial to some causes and not to others. Therefore, creating a system, that all victims can understand saves valuable time and resources; while providing communities with specific guidelines for determining individual and collective restitution. Further, reparation must be analyzed as a whole, more towards improving resources and building community infrastructure, providing jobs and so forth. Example, for those who lost their home, reparation can include a housing project, where those individuals can help to build (creating jobs), and then have the project named after the tragedy. Another example for victims of genocide, possibly build a school/s in commemoration. Another example for injured victims continue assisting with medical bills and immediate expenses, but also link the tragedy to a tangible item to send a clear message. To facilitate such works the ICC, could create websites with jurisdictional affiliation for transparency of the process.
Restorative and Transitional Justice, are beginning to be viable means of managing criminal justice conflicts; and can be more valuable at restoring the effectiveness of international criminal justice, than the historic strong stance on retributive justice. It is important to remember that the ICC (Netherlands) does include victim reparation in sentencing of perpetrators; but not all levels, or types of International Criminal Courts and Tribunals include victim reparation.
Justice without reparation is no justice, but seeks to take revenge on society and remains stagnant -- In the words of Albert Einstein "Insanity is doing the same thing over and over expecting different results."
Footnotes:
(13) UN Security Council, ’The rule of law and transitional justice in conflict and post-conflict societies : report of the Secretary-General,’ United Nations, 23 August 2004, S/2004/616, https://www.un.org/ruleoflaw/files/2004%20 report.pdf
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Cases Prosecuted Involving International Crimes: Retributive and Restorative Measures
Former Liberian President, Charles Taylor indicted by the Special Court of Sierra Leone (SCSL), for international crimes; sort immunity for his crimes. However, the SCSL did not grant any such immunity; Taylor was sentenced to 50 years (2012)(14). Punishment is severe under a strong retributive/adversarial process, and no mention of victim reparation. States in most cases are allowed to confiscated property of individuals who benefit from crime, but fails to adequately re-distribute the proceeds using a meaningful method. It would be more beneficial if victims could have a say in the re-distribution process; particularly so when such processes are transparent. Considerable financial burden to States, and the International Criminal Justice System, with the current method of prosecution and limited meaningful reparation is burdensome; does little or nothing for victims and society.
Whereas in the case of, Thomas Lubanga Dyilo, from the Democratic Republic of the Congo, convicted, on 14 March, 2012 (sentenced to 14 years), by the ICC for war crimes (Article 8), of enlisting and conscripting of children under the age of 15 years, and using them to participate actively in hostilities. The ICC, in their application of restorative justice, the Trial Chamber II, set the amount of Mr Lubanga’s liability for collective reparations at $10,000,000 U.S (2017)(15). Collective reparation can have significant influence on building effectiveness of international criminal justice when used to create jobs; while building and developing infrastructure, as well as sustainable agricultural mandate with community participation. Even in cases where the perpetrator cannot provide immediate reparation, the ICC does calculate reparation and holds the individual accountable. The ICC, is also responsible for providing funding in support of victim reparation; based on the availability of funds.
Progress of the ICC & Tribunals
Chief Prosecutor of the International Criminal Tribunal of Yugoslavia (ICTY), Serge Brammertz, expressed positive optimism with the process of data sharing, with national institutions in the region before closure of the ICTY. Thus making those institutions better able to manage crime in their jurisdiction, and surrounding areas.
Footnotes:
(14) SCSL (In The Appeals Chamber) ’Prosecutor v. Charles Ghankay Taylor, SCSL-03-1-I,’ Decision on Immunity from Jurisdiction, Special Court for Sierra Leone, 31 May 2004,http://www.rscsl.org/Documents/Decisions/Taylor/Appeal/059/SCSL-03-01-I-059.pdf
(15) International Criminal Court, ‘The Prosecutor v. Thomas Lubanga Dyilo - Case Information Sheet,’ December, 2017, https://www.icc-cpi.int/CaseInformationSheets/LubangaEng.pdf
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Hence, fulfilling a very relevant purpose of the ICTY, to support States’ independence. Mr. Brammertz also expressed concerns over resources, and the incredible length of time taken with the prosecution process; but stresses the importance of maintaining fairness(16). Further saying, it is better to have a lengthy trial, than a speedy trial, that does not meet standard criterion of procedural fairness. Similarly, Rome Statute, article 70, seeks to instill procedural integrity during prosecution.
Interview with, ICC President, Silvia Fernandez, shows that she remains positive about streamlining processes to include national and international jurisdictions. Indicating that there are now 65 countries internationally, that have ratified the Rome Statute; while stressing the importance of international cooperation; by States in prosecuting international crimes(17).
In my opinion: If more States could see the benefits of ratifying the Rome Statute they would gladly sign in. During and immediately after WW II, when the UN was first introduced there was a similar dilemma, but once the UN’s agenda became clearer more countries signed up; today there are 193 member States who align with the UN.
Footnotes:
(16) C. Stahn,Interview With The Chief Prosecutor of the ICTY: Serge Brammertz,’ Universteit of Leiden--Coursera Inc., 2020, https://www.coursera.org/lecture/international-law-in-action-2/interview-with-chief-prosecutor-of-the-icty-serge-brammertz-Tq9H3
(17) C. Stahn, ‘Interview with ICC president: Silvia Fernández de Gurmendi,’ Universteit of Leiden--Coursera Inc., 2020, https://www.coursera.org/lecture/international-law-in-action-2/interview-with-icc-president-silvia-fernandez-de-gurmendi-u0cos
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Conclusion:
In conclusion, international criminal justice is necessary to prosecute perpetrators of international crimes; especially when States are unwilling to do so. Final recommendations to promote effectiveness of international criminal justice is maintaining consistency of the judicial process. Strengthening institutions is the responsibility of us all; one cannot truly support justice without impartiality. Every individual, state, country, county, municipality, territory, province and so forth; are responsible for promoting worthy human actions. Reputable behaviors are: those that do not hurt, impair, leave destitute, or commit any type of atrocious actions against another human being. Failing to uphold this responsibility has the ability to trickle into our social systems in society, and be magnified over and over. Hence, this is the legacy; this is where we are, and we are all responsible.
Simply saying the UN, ICJ, or the ICC and Tribunals are responsible; is where we fall short on accountability. Everyone, including States, must take responsibility, or leadership to protect their citizens, mini wars among people on home ground, because of personal, political, or religious beliefs must end. Legislation/s are created to provide guidance, to avoid chaos, provide clarity, keep us functioning in a civilized society with human characteristics, and human behaviors.
International Criminal Justice, is only as strong and effective as our demonstrated unified efforts, extending from country to country, coast to coast. The UN, and international criminal institutions are figure heads, and so it’s easy to lay blame. However, these institutions are run by individuals, therefore individuals' behavior matter on a grand scale. The UN, is capable of becoming more effective, functioning with greater efficiency in time; with individual dedication to procedural integrity.
Particular thanks to: Dr. Carsten Stahn from Leiden University for his work with Coursera in promoting education. Professor Stahn did a fantastic job in providing relevant materials and onsite interviews with; Chief Prosecutor of the (ICTY), Serge Brammertz, and ICC President, Silvia Fernandez, for this course study: International Law In action — Investigating and Prosecuting International Crimes.. The main contents of this essay was submitted in September, 2020; receiving full marks..
Thanks To UN: For their work and dedication to Global Peace, as well as many supporting documentation and publications.
NOTE: If there are any mistakes please feel free to contact me, or leave a comment; this content consists of independent work. I do my own research, writing, proof reading, summation, and article organization.
