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What is the role of international criminal justice systems?

/by Ruth Brooks

International criminal justice is the area of international law that’s concerned with prosecuting some of the world’s most serious crimes and human rights abuses.

These include:

Through international criminal justice systems, individuals and regimes that perpetuate these types of crimes can be held accountable for their actions. They also ensure that victims can seek justice and receive reparations – even in cases where the legal systems of their home countries fail them. According to Amnesty International, victims in some states may be denied justice due to “a lack of political will to investigate crimes and prosecute those responsible, weak criminal justice systems, and the marginalisation of victims in society.” In instances such as these, international criminal law systems work to hold perpetrators to account – and even take steps to “ensure that the crimes are never repeated.”

Examples of international criminal justice systems

The International Criminal Court

Established in 2002, the International Criminal Court (also known as the ICC or ICCt) is an intergovernmental organisation based in The Hague, Netherlands. It is the only permanent international criminal court that can prosecute individuals in four criminal areas:

Genocide. Any acts committed with “intent to destroy, in whole or in part, a national, ethnical, racial or religious group” can be tried by the International Criminal Court, with five acts considered crimes of genocide. These are:

  • Killing members of a group.
  • Causing serious bodily or mental harm to members of the group.
  • Deliberatively inflicting on the group conditions of life calculated to bring about its physical destruction.
  • Imposing measures intended to prevent births within the group.
  • Forcibly transferring children of the group to another group.

Crimes against humanity. There are 16 acts that are considered crimes against humanity and can be prosecuted by the International Criminal Court. These are:

  • Murder.
  • Extermination.
  • Enslavement.
  • Deportation or the forcible transfer of a population.
  • Imprisonment or other severe deprivations of physical liberty.
  • Torture.
  • Rape.
  • Sexual slavery.
  • Enforced prostitution.
  • Forced pregnancy.
  • Enforced sterilisation.
  • Sexual violence.
  • Persecution.
  • Enforced disappearance of persons.
  • Apartheid.
  • Other inhumane acts.

War crimes. War crimes can occur in both international armed conflicts between separate states, but also within states where rebel or other groups take up arms against state authorities. There are 74 war crimes that can be brought to the International Criminal Court, but the most serious are those that are considered grave breaches of the Geneva Conventions of 1949. Some examples of these crimes include:

  • Torture.
  • Mutilation.
  • Biological experiments.
  • Denying fair trials.
  • Taking hostages.

The crime of aggression. The crime of aggression occurs when one state plans, prepares, initiates, or executives an aggressive act against another. Acts can include invasions, occupations, blockades, or annexations, and are considered a violation of the Charter of the United Nations. As with the other crimes prosecuted by the ICC, only individuals – rather than states – can be charged with the crime of aggression through the International Criminal Court. This charge focuses on the leaders responsible, largely through their political or military power, for aggressive acts – and their consequences.

The ICC is given legal power through what’s known as the Rome Statute of the International Criminal Court, or simply the Rome Statute, a multilateral treaty initially adopted by 120 countries. By adopting this charter, states accept the jurisdiction of the International Criminal Court and agree to abide by its rulings and the verdicts of the ICC prosecutor. There are currently 123 member states of the International Criminal Court, but it’s worth noting that 42 states have not adopted the Rome Statute. 

Countries that have adopted the statute include:

  • The United Kingdom
  • Japan
  • Australia
  • Canada
  • Uganda
  • Afghanistan
  • Colombia
  • Democratic Republic of the Congo (DRC)
  • South Africa

Others, such as the Philippines, have opted to leave the ICC, whereas some, such as Sudan, are in the process of joining.

The ICC is governed via its Assembly of States Parties. This body is made up of representatives from each of its member countries that have adopted the Rome Statute, and it meets once a year, either in The Hague or at the UN headquarters in New York.

International Court of Justice

Founded in 1945, the International Court of Justice is an arm of the United Nation, and oversees disputes between different states. 

Sometimes referred to as the World Court, the International Court of Justice settles disputes between states, and often gives advice on international legal issues at the request of the United Nations, special agencies, or related organisations, such as non-governmental organisations (NGOs). These legal issues can span a number of different areas of law, including:

European Union Agency for Criminal Justice Cooperation

Also known as Eurojust, the European Union Agency for Criminal Justice Cooperation brings together national authorities from its EU member states, as well as other countries, to investigate and prosecute transnational crime.

Hybrid courts

Hybrid courts are typically established when there is a need to investigate and prosecute international crimes in states that have recently been through a crisis or conflict. In these cases, the state’s own legal system may lack the resources – such as the legal infrastructure or frameworks – required to oversee international justice, so a hybrid court will be established. 

According to Amnesty International, hybrid tribunals have been established or proposed in countries such as Bosnia, Cambodia, and Sierra Leone.

Ad hoc courts and tribunals

Before the establishment of the International Criminal Court and International Court of Justice, ad hoc courts and tribunals were used to settle disputes between states and prosecute individuals accused of international crimes, such as war crimes and crimes against humanity.

For example, following the Second World War, the Nuremberg trials were held to try individuals – Nazis – charged with crimes such as aggression, and the Tokyo War Crimes Tribunal was convened to try Empire of Japan leaders for war crimes.

Other ad hoc tribunals include:

What is the relationship between international criminal justice systems and the state?

Participation in international criminal justice systems is largely dependent on states themselves. 

For example, a number of major players in the international community – including the United States, Russia, China, and Israel – are not members of the International Criminal Court. These states might be compelled to cooperate with the ICC if a relevant case arises through a referral from the United Nations Security Council, but the ICC does not have a police force or other enforcement body, so relies on cooperation from nations when they want to make an arrest, or transfer an arrested individual. 

What is the difference between an international criminal justice system and a domestic criminal justice system?

The difference between domestic and international criminal justice varies from country to country. This is because international crimes – for instance, crimes against humanity or other such crimes that are not acceptable within a civil society – should typically be prosecuted within established state court systems, such as national courts.

International criminal justice systems, however, will step in and prosecute in cases where state legal systems cannot – or will not – appropriately seek criminal justice and enforce the rule of law.