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The ICC: prosecuting the worst perpetrators in the world

On the 65th anniversary of the U.N. Declaration of Human Rights we celebrate the International Criminal Court and its advocacy for protecting human rights for us all.

ICC building
The International Criminal Court began operating in 2002 in The Hague, Netherlands, a city chosen because it is a center for other courts of justice.

The Nazis planned to exterminate all the Jews of Europe. When Hitler was asked how he thought he’d get away with this, he replied, “Who today remembers the Armenians?”

Ellen J. Kennedy

He was referring to the Ottoman Empire’s systematic extermination of 1.5 million Armenians during World War I, one of the first modern genocides. The word “genocide,” in fact, was coined to describe this tragedy.

One of the reasons Hitler felt he would have impunity to massacre the Jews is that the Ottoman perpetrators were never punished. But we know that the Nazis did not have impunity. In 1945, twenty-three Nazi leaders were put on trial in Nuremberg, Germany, for crimes against humanity in what has been called “the greatest trial in history.” Most of the men were found guilty; some were hanged and the rest of the guilty were imprisoned. Twelve subsequent trials were held in Nuremberg after this major international military tribunal, and hundreds of additional trials occurred in countries that had been occupied by the Nazis.

Justice mattered, for individuals, communities, and nations.

Despite genocides in Cambodia, East Timor, and Guatemala, for nearly half a century after Nuremberg there were no other international tribunals to hold individuals criminally responsible for heinous acts against innocent civilians.

Temporary tribunals in ’90s

In the 1990s, the United Nations established ad hoc international tribunals to prosecute perpetrators of the genocides and mass killings in Bosnia, Rwanda, Cambodia, East Timor, Sierra Leone and Lebanon. These tribunals were temporary, designed to adjudicate only the crimes committed in those specific locations.

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For a century, however, people had been advocating for a permanent international court to try individuals for crimes against humanity and other terrible injustices.

Finally, in 1998, at a meeting in Rome, Italy, the Rome Statute was signed; it established the foundation for the world’s first permanent International Criminal Court (ICC). The court began operating in 2002 in The Hague, Netherlands, a city chosen because it is a center for other courts of justice.

The ICC’s mandate is to prosecute individuals who commit genocide, war crimes and crimes against humanity that have occurred since 2002. This is the most important court on the planet.

Last spring I met a man whose vision of justice was formed at the Nuremberg court and extends to the International Criminal Court. Ben Ferencz prosecuted the Einsatzgruppen, the Nazi mobile killing squads responsible for the deaths of more than a million Jews. He was 27 years old and it was the first trial of his life – and he received guilty verdicts for every one of the defendants.

Landmark case: Child soldiers in DRC

Two years ago, Ferencz, then 92 years old, gave the closing argument for the ICC’s case against Thomas Lubanga. Lubanga was found guilty of using child soldiers, as many as 3,000 children between the ages of 8 and 15.

This was a landmark case. First, it was the ICC’s first completed case and the fulfillment of the long-held dream of a permanent international tribunal to end global impunity. Second, the government of the Democratic Republic of the Congo authorized the court to investigate the case, illustrating a unique feature of the court called complementarity. When a country is either unable or unwilling to prosecute one of its own citizens for these crimes, the country may turn the case over to the ICC, the UN Security Council may do so, or the chief prosecutor may choose to conduct an examination.

In this case, it was particularly noteworthy that the Congolese government asked the court to prosecute this case. And finally, this was the first time that the use of child soldiers had been prosecuted. There are currently an estimated 300,000 children used in conflicts in at least fourteen countries around the world, a crime that defies our imaginations.

The judges, lawyers, and administrators are chosen from among the finest in the world. The current president is from Korea, the first vice president is from Botswana, and the second vice president is from Italy. The chief prosecutor, a woman, is from Senegal, and the deputy prosecutor is from Canada.

At 94, at The Hague

Ben Ferencz is my hero. His life has spanned the global effort to find justice for those who have been treated as less than human. He is now 94 and is currently at The Hague for the meeting of the Assembly of States Parties, the annual gathering of the representatives of the 126 countries that have ratified their support for the court. Although the United States supports the court in many ways, it has not yet joined the other nations in ratification. Nevertheless, there are leading U.S. lawyers like Ferencz who participate in these meetings.

I believe in this court. I am a Jew born after World War II and, like most Jews in the United States, I had distant family members who perished during the Holocaust. Perhaps if this court had existed then, I would have relatives alive in Europe today.

I work with AMICC, the American coalition that raises awareness about the court, and a team of Minnesota law students and lawyers who are preparing materials to promote U.S. support of the court. Today, on the 65th anniversary of the U.N. Declaration of Human Rights (Dec. 10), we celebrate the International Criminal Court and its advocacy for protecting human rights for us all.

Ellen J. Kennedy, Ph.D., is the executive director of World Without Genocide at William Mitchell College of Law.


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