CHAPTER ONE

GENERAL INTRODUCTION

1.1 BACKGROUND TO THE STUDY

The International Criminal Court (ICC) is an institution established to investigate and prosecute persons accused of committing the most serious crimes which affect the international community,[1]such as genocide, war crimes, crimes against humanity and the crime of aggression .[2] The idea for the creation of an international criminal court can be trace prior to the outbreak of the Second World War with the idea of Gustav Moynier, one of the founders of the International Committee of the Red Cross, who proposed a permanent international court in response to the devastation of the Franco-Prussian War of 1870s. Also Following World War I, the negotiators of the Treaty of Versailles proposed to establish an international court to try the Kaiser and other German war criminals.[3]This was the first time an attempt was made to try acts committed by individuals considered as international wrongful acts. In 1945-1946 Following World War II, the Allies set up the Nuremberg and Tokyo tribunals to try German and Japanese war leaders, respectively this was important because it held accountable individuals guilty of committing the crime of genocide irrespective of their status. That is it did not respect of sovereign immunity but treated everyone who committed genocide by instigating, inciting. Among other principles, these trials confirmed that individuals could be held criminally responsible for international crimes, regardless of official position, and that superiors’ orders were not a full defense to criminal behavior. In December 9, 1948: The United Nations General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide, which called for perpetrators of genocide to be tried before international penal tribunals. Following the adoption of the Convention, the General Assembly invited the International Law Commission to explore the possibility of establishing an international judicial organ to try those charged with genocide.[4] The Commission concluded that such a judicial organ was both possible and desirable, and a subsequent committee drafted statutes in 1951 and 1954. Despite these early efforts, the General Assembly postponed considering the question, and the Cold War prevented further development of international criminal court for several decades. In August 12, 1949: Led by the International Committee of the Red Cross, a Diplomatic Conference in Geneva, Switzerland adopted the Geneva Conventions of 1949. The original four conventions were followed by Additional Protocols I and II on June 8, 1977. These conventions form the backbone of international humanitarian law and are binding customary international law on all States and other actors in armed conflict. Each convention provides special protection to a group of designated persons, including civilians, aid workers, the wounded, and others no longer taking part in active hostilities. The Fourth Geneva Convention specifically outlines protection owed to civilians in armed conflict. Additionally, the “grave breaches” regime they created (wilful killing, torture or inhuman treatment, causing great suffering or serious injury to body or health, unlawful deportation or transfer of protected persons, hostage-taking, extensive destruction of property. In May 25 1993 the United Nations Security Council through a resolution established the International Criminal Tribunal for the Former Yugoslavia (ICTY), the first ad hoc temporary UN international criminal tribunal, created to hold accountable those who participated in the atrocities committed during the Balkans conflicts in the 1990s. The court was established following the ethnic fighting and violence amidst the break-up of the former Yugoslavia.  In November 8, 1994 the United Nations Security Council through a resolution equally established the International Criminal Tribunal for Rwanda (ICTR) to hold accountable those who participated in the atrocities in Rwanda between January 1 and December 31, 1994. The court was established following an approximately hundred day-long genocide that divided Rwandans largely along ethnic lines. In 1995 The International Law Commission presented its final draft statute for an international criminal court to the United Nations General Assembly in 1994. The Ad Hoc Committee met twice during 1995 to discuss the establishment of an international criminal court. The United Nations General Assembly created the Preparatory Committee on the Establishment of the International Criminal Court, open to both Member States and specialized agencies, to prepare a consolidated text based on the International Law Commission’s draft statute and the Ad Hoc Committee’s report. The Preparatory Committee held six sessions between 1996 and 1998, and approved the final draft statute at the March-April meeting in 1998, forming the basis of the draft considered at the Rome Conference

In December 15, 1997 at its 52nd Session, the United Nations General Assembly officially resolved to hold a United Nations Conference of Plenipotentiaries on the Establishment of an International Criminal Court (commonly called the “Rome Conference”), open to all Member States and members of specialized agencies. The General Assembly scheduled their meeting in Rome for June 1998 and tasked the Conference of Plenipotentiaries to finalize and adopt a convention to establish an international criminal court. In June 15 to July 17, 1998: The United Nations Conference of Plenipotentiaries on the Establishment of an International Criminal Court (commonly called the “Rome Conference”) was held with the participation of over 160 governments, In July 17, 1998, The Rome Statute of the International Criminal Court was opened for signature and ratification criminated by 120 countries committed, voted in favor of it at the Rome Conference. In September 2, 1998, The ICTR finds Jean-Paul Akayesu, the former bourgmestre of Taba commune, guilty of genocide, making the ICTR the first international tribunal to enter a judgment for genocide and the first to interpret the definition of genocide. In May 27, 1999, The ICTY indicts Yugoslav President Slobodan Milošević. This is the first indictment against a sitting head of state by an international court. In January 16 2002, The Government of Sierra Leone and the United Nations signed an Agreement establishing a Special Court for Sierra Leone. The Special Court for Sierra Leone was a hybrid court, having jurisdiction over ‘persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since November 30, 1996.’ The court was established following a decade long civil war between the government and the United Revolutionary Front (RUF), led by Foday Sankoh and supported by former Liberian President Charles Taylor. Taylor was accused of using profits from illegal diamond mines to finance the RUF, and was convicted of aiding and abetting war crimes on April 2, 2012. In April 11, 2002 the 60th country ratified the Rome Statute, paving the way for its entry into force on July 1, 2002. July 1, 2002 The Rome Statute legally entered into force, making the International Criminal Court (ICC) the world’s first and only permanent international criminal court for the investigation and prosecutions of genocide, crimes against humanity and war crimes committed after  1, 2002 and within its jurisdiction.[5]

1.2 STATEMENT OF THE PROBLEM

The international criminal court is an institution created to prosecute genocide and war crimes. But Despite the successes of the international criminal court, there are still some challenges faced by the ICC.  Firstly there is difficulty in enforcing the decision of the court. Firstly there is difficulty in enforcing the decision of the ICC due to lack of enforcement bodies and also, there is the problem of delay in the justice system because cases are heard and determine over a long period of time. It may be in violation of the fundamental principles of fair hearing. Furthermore,it has been demonstrated that partiality is still a problem at a very high level at the ICC as regards the trials of western leaders as opposed to African leaders who have been charged of committing heinous crimes like genocide, crimes against humanity,war crimes and crimes of aggression.

1.3 RESEARCH QUESTIONS

Based on the problems enumerated above, some research questions will be answered. These questions are divided in to main research question and specific research questions.

1.3.1. Main Research Question

To what extent has the ICC succeeded in the fight against genocide.

1.3.2. Specific Research Questions

• What constitute the concept of the crime of genocide?
• To what extent is the ICC as an institution capable of fighting against the crime of genocide?
• To what extent does the ICC encounter difficulties in determining and fighting cases genocide?
• What policy recommendations can be made to address the issues raised?

1.4. Main Research Objective

To examine the extent to which the ICC has succeeded in the fight against the crime of genocide.

1.4.1. Specific Research Objectives

• To examine the concept of the crime of genocide.
• To discuss the extent to which the ICC as an institution is capable of fighting against the crime of genocide.
• To assess the difficulties encounter by the ICC in determining cases of genocide.
• To make the policy recommendations that can be made.

[1] Benjamin  N schiff. Building the international criminal court , ( Cambridge) Cambridge university press, 2008, p15.

[2] https://www.icc-cpi.int/about/the-court . (Accessed on February 28 2024).

[3] http://www.avalon.law.yale.edu/imt/parti.asp. (accessed on February 28 2024).

[4] https://legal.un.org/avl/ha/cppcg/cppcg.htm. l the convention on the prevention and punishment of genocide.(Accessed on 3 March 2024).

[5] https://www.aba-icc.org/about-the-icc/evolution-of-international-criminal-justice/ introduction of international criminal court. Accessed on the 9 march 2024.