Pursuit of justice by way of ICC

DELIA CHATOOR

ON JULY 17, 1998, the Statute of the International Criminal Court (ICC) was adopted at a diplomatic conference in Rome, Italy and on July 1, 2002, the statute itself entered into force.

The court was established to exercise jurisdiction over the crime of genocide, war crimes, crimes against humanity and aggression as they were deemed to be “the most serious crimes of concern to the international community as a whole.” The reasons advanced for an ICC included the desire to end impunity, address the deficiencies of a number of ad hoc tribunals which had been set up by the United Nations (UN), assist in ending conflicts, to prevent the commission of future war crimes, and respond when domestic criminal jurisdiction courts are unwilling or unable to act.

In 1989, TT, with the support of Caricom member states, placed before the UN the question of whether it was feasible to establish an ICC. Following discussions the International Law Commission (ILC) submitted in 1994 the final version of a draft statute for an ICC which it was proposed could form the basis for negotiations.

TT and her Caricom partners were anxious to find solutions to the illegal activities associated with illicit drug trafficking and other corrupt practices of a transnational character. International developments, however, which included the unravelling of the former Yugoslavia and the events in the Great Lakes region of Africa, led to concerns that domestic tribunals wherever they were operational may not have been capable of addressing international law offences.

The emphasis, therefore, shifted from the illicit trafficking in narcotic drugs and terrorism to the crime of genocide, war crimes, crimes against humanity and aggression. The negotiations focused on these but when the Rome Statute was adopted in 1998, provision was made for a review mechanism (Article 123) as it was recognised “that the international trafficking of narcotic drugs is a very serious crime, sometimes destabilising the political and social and economic order in states.” The review conference would consider the crimes of terrorism and drug crimes once there was an acceptable definition for its inclusion in the statute.

At the first review conference of the Rome Statute in June 2010, TT and Belize submitted a proposed amendment to Article 5 of the statute which would enable the ICC to have jurisdiction over “the crime of international drug trafficking.” A definition was also presented. There was no discussion, however, and the proposal was referred to the ICC’s Assembly of States Parties (ASP).

Since its operationalisation, TT has been successful in the election of four judges to the ICC, namely:

Karl Hudson-Phillips (2003-2007)

Anthony Carmona (2012-2013)

Justice Geoffrey A Henderson (2013-2021)

Justice Althea Violet Alexis-Windsor, elected in 2021 for a term of nine years

After 25 years, it is fitting for states parties to assess the work of the ICC. In light of recent international developments, calls have been made on what could enhance the role of the ICC in guaranteeing “lasting respect for and enforcement of international justice.” In this regard, all states parties are duty-bound to lend support to the conduct of investigations begun by the court.

The operations of the court have, however, not been spared criticism which range from its selectivity in the launch of investigations, the ability to locate suspects and the length of trials. The court, however, is pressing on with its mandate to enforce the principles of International law wherever a situation has been referred to it, where it could exercise its jurisdiction and where trials have been ongoing and have commenced.

It must nevertheless be remembered that the court’s jurisdiction is “complementary to national criminal jurisdictions “so that states parties have the ultimate responsibility to undertake investigations into alleged breaches of the crimes within its jurisdiction. It is only in situations where the state is unwilling or unable to act and there is a referral could the ICC exercise such jurisdiction.

The 25th anniversary could, therefore, serve as an ideal opportunity to examine all the important issues and the court’s future. The continued role of civil society also merits assessment, bearing in mind its pivotal involvement in the negotiations of the Rome Statute and its ongoing work in the field of international criminal justice. The past two to three years have clearly shown that events in one part of the world could impact on another and this brings into play the respect for international norms with the enhancement of trust, accountability and the acknowledgement of the words in the preamble of the Rome Statute:

“Affirming that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international co-operation."

TT remains committed to the purposes and principles of the UN Charter and to the ethos which inspired it in 1989 at the United Nations to initiate the call for an international criminal tribunal. It was believed that the time had come for such a viable mechanism to be set up to uphold peace, security and development.

To all who over the years have made it possible for the ICC to address the most egregious crimes affecting the international community, congratulations are in order. Recognition must be given to the unfettered persistence of the late ANR Robinson, wearing different hats from internationalist, minister of government, prime minister and president and the group of dedicated public officials who successfully moved the proposal along.

Tribute must also be paid to the tireless efforts of civil society, the members of staff, the judges, and the Netherlands for agreeing to host the court. They have all over the past 25 years sought to ensure that justice is served and as so eloquently stated by the late Professor Cherif Bassiouni (an active proponent of the court) on July 18, 1998: "The ICC will add its contribution to the humanisation of our civilisation.”

Delia Chatoor was one of the officers involved in the negotiations from the onset

Delia Chatoor