Although the ICC's name implies exclusivity, it is one of many international criminal tribunals. Several permanent international tribunals dealing in civil matters have also developed, ranging from the Permanent Court of Arbitration to the International Tribunal for the Law of the Sea to the World Trade Organization's Dispute Settlement Body. The UNSC controls the International Court of Justice (ICJ), which settles legal disputes between UN nations that typically include acts of war or disputes arising out of settled conflicts. UNSC members have the power to veto any judgment made by the court. Recent rulings of note from the ICJ have included attempts to intervene in the Georgia-Russia conflict and force negotiations between the two nations, the granting of immunity to Germany from other UN states' claims for reparations resulting from World War II and ordering Thailand and Cambodia to withdraw from a temple on their disputed border.
There are also a number of tribunals similar to the ICC dedicated to war crimes, but with focuses on specific conflicts that have an especially large number of potential defendants. These include the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), the Special Court for Sierra Leone (SCSL), the Extraordinary Chambers in the Courts of Cambodia (ECCC) and the Special Tribunal for Lebanon (STL). While the ICC derives its authority from the Rome Statute, the ICTY and ICTR were created out of UN resolutions to handle the aftermath of the Bosnian civil war and the Rwanda genocide, respectively. The other courts derive from specific agreements between the UN and the affected states. The SCSL tries cases resulting from the Sierra Leone civil war, and the ECCC tries members of the Khmer Rouge, who committed widespread acts of torture and genocide in Cambodia during the 1970s. The STL is unique in that it is investigating a singular event, the 2005 assassination of former Lebanese Prime Minister Rafik Hariri.
The success of the various international tribunals has been mixed. JURIST Contributing Editor Haider Ala Hamoudi questioned the legitimacy of all such international tribunals, including the ICC:
The source of the danger lies in the Rome Statute of the ICC, which has a rather narrow prescription of jurisdiction, limiting it for the most part to specified international crimes either (i) occurring in States which are parties to the statute or in which a national of such a State is a Party or (ii) referred to it by the Security Council. To put the matter starkly, if China — not a member to the Rome Statute and with veto power in the Security Council — were to engage in a broad genocide of Tibet's population (no intention to suggest that this is at all within China's contemplation, and offered only by way of illustrative hypothetical), the ICC would lack jurisdiction entirely. The same would not be true if a government without a permanent seat in the Security Council were to kill dozens of protesters in a rally, and the Security Council were to refer the matter to the court for resolution. This disturbing discrepancy is scarcely defended by those earnestly engaged in the work of international criminal justice but rather justified as a necessary compromise to political realities ... To the extent that these courts are understood to be nothing more than the (well-intentioned) legal enforcement wing of the Security Council, less engaged in justice and more in pursuing selectively chosen political enemies for prosecution while ignoring allies whose crimes are no less great, the grave threat to legitimacy thereby arises.
Additionally, international tribunals based in native countries have been accused of ineffectiveness — if not outright corruption. Most notably, the impartiality of the ECCC has been questioned
. The STL has faced the unique problem of having to try
its main suspects in absentia
due to the Lebanese government's reluctance to arrest members of Hezbollah. JURIST Guest Columnist Niccolo Pons
discussed how this will present a number of obstacles for the tribunal, including raising the burden on the prosecution:
[T]he STL will have to bear a much more challenging and sensitive burden. The victims of terrorism and Lebanese people more generally are waiting for answers and have great expectations. The STL will have to meet these expectations and demonstrate that proceedings in absentia, should they really take place, do not represent a failure of the judicial system or a shortcoming to the establishment of truth, but one of the legitimate resources provided by international law on which the Tribunal can rely to honor its mandate and hold a fair and impartial trial.
Due to their connections with the state, tribunals such as the ICTY
and the ICTR
have suffered the consequences of nations' unwillingness to admit their past crimes, whereas the ICC functions as an independent body that enters a nation to delineate justice. In particular, ICTR suspects have been fully acquitted as a result of genocide denial
, although JURIST Guest Columnist Eric Leonard of the Henkel Family Chair in International Affairs at Shenandoah University argued that the ICC should embrace complementarity
and conduct more trials in the locations of the war crimes, with regional influence welcomed.
Another difficulty has been the treatment and sentencing of suspects. At the 2010 Review Conference of the Rome Statute, the ICC identified
[PDF] the difficulty with housing eventual war crimes convicts and voted to amend the Rome Statute to encourage signatory states to accept this responsibility:
A sentence of imprisonment can also be served in a prison facility made available to the designated State by an international or regional organization, arrangement or agency.
(b) states parties and states that have indicated their willingness to accept sentenced persons should, directly or through competent international organizations, promote actively international cooperation at all levels, particularly at the regional and sub regional levels.
Typically, in international tribunals like The Hague, defendants are housed in spacious living arrangements with all of their basic needs provided for. They have access to top attorneys and research facilities. There is also concern that sentences, especially for notorious war criminals such as Charles Taylor
, can in no way balance the scales of justice against the crimes that have been committed. JURIST Guest Columnist Kenneth Gallant
criticized the sentencing of Taylor particularly for a wealth of missed opportunities in not demanding reparations. The ICC has not yet suffered from as many of these criticisms, having only truly completed one trial with the conviction
of Thomas Lubanga Dyilo in March 2012.
Currently, none of the international tribunals, including the ICC, impose the death penalty.