A. From Nuremberg to Rome

The wake of World War II saw a fundamental overhaul of international structures with the creation of the United Nations and the International Court of Justice (ICJ). The shockwaves of the Nazi atrocities also gave rise to the Universal Declaration of Human Rights (UDHR), which became the basis of the modern concept of human rights.

International military tribunals were set up in Nuremberg and Tokyo to try the architects of the shocking atrocities committed by Nazi Germany and its allies. Shortly afterwards, the Convention on the Prevention and Punishment of the Crime of Genocide and the four Geneva Conventions were adopted. Common to all these post World War II developments was the notion that the protection of peace and basic human dignity is a matter of common concern and that even in a world consisting of sovereign states, certain international rules are necessary to safeguard these values of fundamental importance to humankind as a whole.

We can distinguish several different but mutually related areas of international law in this respect. First, the UN Charter prohibited aggressive warfare and charged the UN Security Council with matters of international peace and security.Footnote ¹ Along with this, the ICJ was mandated with the settlement of interstate disputes related to international law and treaties. Second, international human rights law emerged as an expression of the new notion that states have a responsibility to respect and to protect the human rights of their own nationals and other individuals on their territory. Third, the law of armed conflict progressed into international humanitarian law with an increased focus on the protection of vulnerable individuals in time of war. Lastly, the seeds of international criminal law were planted in Nuremberg with the recognition that individuals responsible for mass atrocities or the crime of aggression, regardless of their official position, must be held accountable for their acts. Sadly, the ensuing Cold War rivalry drove international criminal justice into the background. The violent use of armed force continued to plague humankind in many parts of the world. The Asia-Pacific was no exception.

It was not until twenty years ago, after the end of the Cold War, that the project of international criminal justice gained a new momentum through the creation of the ad hoc international criminal tribunals for the former Yugoslavia in 1993 and Rwanda in 1994, and renewed efforts by lawyers, diplomats, and civil society to create a permanent international criminal court. These aspirations came to a concrete conclusion in Rome in July 1998. Delegates from all regions of the world converged to cast their votes on a court which had been fifty years in the making: 120 states voted in favour of the proposed treaty, which became the Rome Statute of the International Criminal Court.

In a remarkably short time, after the necessary sixty state ratifications, the Rome Statute came into force and the International Criminal Court (ICC) was formally created on 1 July 2002. A new permanent international organization was born, independent from the UN or any other pre-existing body. With good reason it has been said that the birth of the ICC was among the most important developments in international law since the creation of the UN and the adoption of the UN Charter.Footnote ²

The ICC was given jurisdiction over four groups of heinous crimes. First is the crime of genocide, characterized by the specific intent to destroy a national, ethnic, racial, or religious group by killing its members or other means.Footnote ³ Second, the ICC can prosecute crimes against humanity, committed as part of a large-scale attack against any civilian population. The various forms of crimes against humanity listed in the Rome Statute include offences such as murder, rape, imprisonment, enforced disappearances, enslavement—particularly of women and children—sexual slavery, torture, apartheid, and deportation.Footnote ⁴ Third, the Rome Statute contains a long list of war crimes, bringing together Geneva law and Hague law (i.e. the protection of persons and property on the one hand and the limitation of methods and means of warfare on the other). The Statute makes a distinction between international and non-international armed conflicts, both categories including, for instance, the use of child soldiers, the killing or torture of persons such as civilians or prisoners of war, intentionally directing attacks against hospitals, historic monuments, or buildings dedicated to religion, education, art, science, or charitable purposes.Footnote ⁵ Finally, the fourth crime falling within the ICC's jurisdiction is the crime of aggression. At the time of the adoption of the Rome Statute, states could not agree on the definition of aggression or the jurisdictional rules for its prosecution, but this shortcoming was overcome by the adoption of amendments at the first Review Conference of the Statute in Kampala in 2010. Bringing these amendments into force will require ratifications and an additional vote by States Parties, which cannot take place until 2017 at the earliest.Footnote ⁶

B. The ICC Today

Since its formal establishment on 1 July 2002, the ICC has turned from a court on paper into a leading actor in the area of the enforcement of international justice. As of March 2013, 122 states, constituting more than sixty percent of the world's sovereign nations, have ratified or acceded to the Rome Statute, and the number keeps growing. Four states have referred their situations to the ICC's Prosecutor, and two situations have been referred by the UN Security Council, the latest one with a unanimous decision.Footnote ⁷ These are all strong indicators of the growing international confidence in the ICC's role.

As of March 2013, eight country situations are under investigation and prosecution at the ICC: the Democratic Republic of the Congo (DRC), Uganda, the Central African Republic, Sudan, Kenya, Libya, the Ivory Coast, and Mali. The Prosecutor is following developments in many more situations across the world. In 2012, the ICC delivered its first two trial judgments, concerning the alleged use of child soldiers and other crimes in the DRC. Five other cases are at trial stage, involving eight accused, and nine cases are at pre-trial stage, involving a total of fourteen suspects, thirteen of whom remain at large.

A. Deterrence

Deterrence is one of the main purposes of punishment in traditional criminal theory. This is the most direct preventive effect of international justice, but I do not believe it is necessarily the most significant one.

Deterrence is notoriously difficult to measure, since we essentially need to look at the relationship between justice administered and the absence of crimes. In a national setting, with ordinary crimes, it is easier to produce statistics with meaningful data. For example, if the number of break-ins has dropped from 800 to 500 per year in a given residential area, it may be possible to connect this change to factors that have caused it, such as increased policing or social programmes.

A similar exercise is far more difficult with regard to atrocity crimes. Every situation is unique and each conflict has its specific historical and political setting. The greatest challenge is causality—there are so many factors affecting the occurrence of atrocities that it is close to impossible to determine what the effect of deterrence is. Nevertheless, there is reason to believe that a deterrent effect is slowly emerging. Arrest warrants for sitting Heads of State issued by the ICC as well as other international courts demonstrate that no one is immune from accountability, and the likelihood of punishment has grown.Footnote ¹²

One of the most concrete appraisals of the ICC's deterrent effect so far was conveyed to me in January 2011 from the then Justice Minister of the DRC during his visit to the ICC. He told me that tensions surrounding the recent DRC elections had been very high, but large-scale violence had fortunately been avoided. People had already seen DRC nationals facing the court in The Hague and the Minister said the ICC had been a constant topic of discussion around the elections, which in his view had had a significant deterrent effect.

B. The ICC's Capacity to Intervene in Active SituationsFootnote ¹³

Another aspect of the ICC's preventive potential, closely related to deterrence, is the Court's ability to intervene in active situations involving the threat or possible occurrence of atrocity crimes. An important factor in this respect is the fact that the Court is an independent institution that does not require the approval of political organs to investigate situations or to prosecute crimes that are under its jurisdiction.Footnote ¹⁴ The ICC's intervention may take several forms, escalating from a preliminary examination,Footnote ¹⁵ through an investigation, to the issuance of arrest warrants, and prosecution. Holding trials before the ICC is the last available tool, not a goal in itself.

Where tensions arise and reports emerge pointing to a threat of imminent atrocities, announcing publicly that the ICC Prosecutor is following the situation can be a powerful tool, putting potential perpetrators on notice that they might be held liable for their actions and could become subject to arrest warrants enforceable in the 122 States Parties to the Rome Statute. A warning of this sort can boost the ICC's deterrent effect, as demonstrated by the example from the DRC discussed in the previous section. The ICC's intervention can also draw local as well as international attention to the situation and help induce the relevant stakeholders to take necessary action to defuse the tensions and to prevent atrocities.

If atrocity crimes do occur despite the efforts to prevent them, and the national authorities are unable or unwilling to address the situation, the ICC can open an investigation. Even this, however, does not necessarily have to lead to prosecution before the ICC. In the best case scenario, the fact that the ICC opens an investigation will help prompt the national authorities to prosecute the alleged crimes in an expeditious manner, thereby reducing the likelihood of further atrocities. Even after the issuance of arrest warrants by the ICC, the national authorities could still take action to address the crimes, and if they can show that they are genuinely prosecuting the persons in question for the alleged offences, the Rome Statute prescribes that the ICC must defer to the national jurisdiction.

Finally, if trials are held at the ICC, this can be expected to strengthen deterrence in the long term, both in the country where the crimes in question occurred, as well as elsewhere, by demonstrating through public proceedings that perpetrators of international crimes, regardless of their official position, cannot count on impunity. Through its proceedings, the ICC becomes a factor in the broader efforts to outlaw and eradicate grave breaches of international humanitarian law, and to help societies overcome the legacy of such crimes, as discussed in the next section.

C. Stabilization

By stabilization I refer to the capacity of international justice to contribute to long-term peace, stability, and equitable development in post-conflict societies. These are fundamental guarantees for a future free of violence.

The connection of peace and justice is well recognized. The two are not mutually exclusive—on the contrary, they reinforce each other. Where impunity is allowed to reign, it leaves a desire for vengeance among populations who have been victims of massive crimes and provides fertile ground for the recurrence of conflicts. Indeed, the World Bank's groundbreaking 2011 World Development Report recognized transitional justice as one of the core tools to forestall cycles of violence.Footnote ¹⁶ Research suggests that countries that have held former leaders accountable for their crimes have in most cases come away stronger.Footnote ¹⁷

Accountability for past atrocities and the strengthening of the rule of law are key ingredients in the healing of post-conflict societies; but attributing guilt to individual perpetrators is not sufficient. To enable a more comprehensive process of justice, the founders of the ICC introduced several important provisions in the Rome Statute for the empowerment of victims.

First, the ICC is the first international judicial body to allow participation of victims in their own right, and not just as witnesses. People who were victimized by powerful criminals have now become actors in international proceedings designed to prosecute those crimes. Along with this, the Rome Statute pays special attention to the needs of women and children, who are often the most vulnerable victims of atrocities. The ICC's legal documents extensively codify specific crimes against women and impose a responsibility on each organ of the ICC to ensure the safety, psychological health, dignity, and confidentiality of female victims and witnesses.Footnote ¹⁸ The ICC represents a step away from the traditional male-dominated world also by being the first international court with a majority of female judges.Footnote ¹⁹

Another innovative feature of the Rome Statute system is the creation of a Trust Fund for Victims, which is without precedent in international criminal justice. The Fund's activities are funded through voluntary contributions by states and donations by private donors. The ICC may also order money and other property collected through fines and forfeitures to be transferred to the Trust Fund.Footnote ²⁰ Recognizing both the rights and the needs of victims and their families, the Fund empowers victims to become key stakeholders in the pursuit of transitional justice.

More than five years of victims’ assistance in northern Uganda and the DRC have seen the Trust Fund for Victims mature into a solid institution. By recognizing the particular needs of victims of the most serious crimes, for instance for reconstructive surgery and trauma-based counselling, the Trust Fund has been able to articulate a truly human dimension to the process of international criminal justice. As of March 2013, more than 80,000 direct beneficiaries have received assistance provided by the Fund and its local and international partners.Footnote ²¹ In 2013, the Fund will start a new programme, in the Central African Republic, initially focusing on victims of sexual violence.Footnote ²²

D. Norm Setting

Finally, I come to norm setting. This I see as the ICC's greatest potential—to have a significant preventive effect by entrenching a system of norms that outlaw atrocities.Footnote ²³ I am not merely referring to a layer of international laws that label certain actions as criminal offences. What we need to achieve is a system of fully internalized legal and social norms that make the Rome Statute crimes not only punishable but also simply unacceptable in societies everywhere.

Naturally, the Rome Statute must be seen as part of the wider international movement aimed at protecting fundamental human rights and dignity. These are long processes. The fact that a state ratifies an international treaty does not mean that all the rights defined therein miraculously take immediate effect. But with proper national implementation, education, and democratic support, adherence to treaties can make a huge difference. In the best-case scenario, the emergence of legal norms and core societal values is a mutually reinforcing process.

But is the distance between an international treaty and the social norms of a local community too large? How can this gap be bridged? Here the complementarity principle of the Rome Statute is of crucial importance. Under the concept of complementarity, the national judiciary of each state retains the right, and the primary duty, to investigate and prosecute grave violations of international humanitarian law.

Therefore, each State Party to the Rome Statute is expected to make all ICC crimes punishable under its national laws and ensure that the country's law enforcement system is fully capable of investigating and prosecuting such offences. If this is properly done, the international legal norms of the Rome Statute also become domestic norms within each State Party. This, particularly with proper raising of awareness, will in turn bolster efforts of civil society to promote adherence to these norms, which are of critical value to the protection of human rights and dignity.

A. Complementarity

Making the principle of complementarity fully effective remains one of the greatest challenges for creating a truly credible and comprehensive system of deterrence and prevention against atrocity crimes. The domestic justice systems of states should be so well equipped to deal with Rome Statute crimes that they can serve as the primary deterrent worldwide, while the ICC is a safety net that ensures accountability when the national jurisdictions are unable for whatever reason to carry out this task.

A vast amount of work remains to be done for this goal to be achieved. A large number of ICC States Parties are yet to incorporate Rome Statute crimes into their national criminal codes. Where large-scale crimes have occurred, their effective investigation and prosecution frequently presents enormous challenges for the national jurisdictions involved in terms of, inter alia, human resources, technical capabilities, and specialized skills. Indeed, the Assembly of States Parties to the Rome Statute recalled at its latest session that:

B. State Co-operation with the ICC

Another crucial aspect for the credibility and effectiveness of the ICC is the co-operation of states with the Court and the enforcement of the Court's orders. The ICC has no police force of its own; instead it relies entirely on states to execute its arrest warrants, to provide evidence, to facilitate the appearance of witnesses, and so forth. Without the co-operation of states, the ICC is powerless. Unfortunately, several ICC arrest warrants have remained outstanding for years.

Political will to bring these persons to justice is crucial. Allowing persons suspected of grave international crimes to evade justice seriously risks eroding the deterrent effect of the ICC. Co-operation has been recognized as a key issue in the Assembly of States Parties to the Rome Statute, which has stressed “the importance of effective and comprehensive cooperation and assistance by States Parties, other States, and international and regional organizations, to enable the Court to fulfil its mandate as set out in the Rome Statute”.Footnote ²⁵

C. Securing Sufficient Resources for International Justice

The cost of justice is a factor that cannot be ignored when discussing the challenges of the Rome Statute system. International trials are expensive and they should always be an exception, never the rule. Especially during difficult times for the world economy, the ICC Member States understandably keep a tight rein on the Court's budget.

However, states should balance budgetary discipline with respect for the increasing demands that the Court faces. Over the last five years the Court's case-load has more than doubled, while its budget has increased by just ten percent. While the ICC is fully committed to enhancing the efficiency of its operations, the States Parties need to ensure that the ICC is provided with the essential resources to carry out the mandate it has been entrusted with. To do otherwise would mean letting down all the victims who look to the ICC in hope of justice, and sending out a message that perpetrators may get away with atrocity crimes because of financial considerations.

D. Universality: The Rome Statute and the Asia-Pacific

Another key challenge that we face in our aspirations to make the Rome Statute truly comprehensive is achieving universality. It is remarkable that 122 states have voluntarily acceded to the Rome Statute, thereby accepting all the obligations as well as benefits that this brings. But with more than seventy countries yet to join, a majority of the human race remains outside the Rome Statute's legal protection.

The Asia-Pacific is particularly underrepresented in the ICC and, as President of the ICC, I have made it one of my priorities to promote greater involvement of my region in the ICC. After all, international justice should not be regarded as a concept foreign to this part of the world. International criminal law has deep-seated roots in Asia, spanning a legacy of more than two thousand years. The writings of Sun Tzu in China, and the Laws of Manu in India, laid down some of the earliest foundations of humanitarian rules for armed conflict, such as the humane treatment of the sick, wounded, prisoners, and civilians, and respect for religious institutions in occupied territories.Footnote ²⁶

All Asian countries, without exception, are States Parties to the four Geneva Conventions of 1949, and have thereby agreed to criminalize the grave breaches defined in those treaties, and to prosecute the perpetrators of such grave breaches—which form, in fact, a major part of the war crimes contained in the Rome Statute. Indeed, Asian countries participated in the creation of the ICC and the ad hoc tribunals for the former Yugoslavia and Rwanda, and judges from Australia, Bangladesh, China, Cyprus, Fiji, Japan, Jordan, Malaysia, Pakistan, Samoa, Singapore, South Korea, Sri Lanka, and Turkey have served on the judicial benches of at least one of these courts.

There is no reason for Asian states to shy away from the ICC: the Rome Statute's potential for strengthening the rule of law and contributing to the prevention of atrocities is just as significant here as elsewhere on the globe. Right now, the Asia-Pacific is the fastest growing regional group of ICC States Parties,Footnote ²⁷ and I hope to see more states sailing with the wind that is blowing across the Asia-Pacific in favour of ratification of the Rome Statute.

E. International Justice Cannot Make a Difference in Isolation

To be truly effective, international criminal justice must work in concert with other mechanisms. Rather than a panacea, international justice should be seen as one of the integral pieces in a large puzzle of elements crucial for the protection of human rights, suppression of conflicts, and the promotion of peace and stability.

Where atrocities have already occurred, a multitude of other transitional justice mechanisms are necessary in addition to criminal justice, such as the public acknowledgement of crimes, finding missing persons, and the sustainable return of refugees. In the case of ongoing or imminent conflicts and atrocities, justice can rarely act alone, and diplomacy is usually the main international tool of rapid reaction to prevent escalation of the violence. Likewise, political solutions are necessary to end conflicts. Where long-term prevention is concerned, education, democracy, and development are at least as important as a credible system of criminal justice.

These are not merely theoretical considerations. A realistic understanding of the possibilities and limitations of international criminal justice is a prerequisite to its success. Societies can only be rebuilt and stability achieved if there is a commitment to holistic development, democracy, and the rule of law, with justice as one among many important components.