Published on 25th January 2025
Authored By: Adnan Siraj
Universitas Jambi, Indonesia
Abstract
This article explores the evolution of accountability for crimes against humanity, with an emphasis on recent developments at international tribunals. It examines the significant moments, history and legal environments that have shaped efforts to channel mass atrocity perpetrators to justice. Progress has been made, however, not least perceived prejudice, the lack of state collaboration, political meddling, and restrictions on resources continue to compromise the effectiveness of an international justice. To reinforce the legitimacy and effectiveness of international tribunals in providing justice to the most serious crimes victims, the article concludes that reform and increased inclusivity are always necessary.
Introduction:
Crimes against humanity may constitute the most heinous violations of international law; including acts of murder, enslavement, torture and other inhumane acts committed as part of a widespread or systematic attack directed against a civilian population. The concept was forged in response to the horror of which the horrors of World war two were a part and culminating in the Nuremberg trials of the principal instigators. More than that, these trials had the precedent of prosecuting Nazi leaders but also cleared the way for prosecuting those who committed heinous acts, beyond national boundaries.[1]
Specialised tribunals and the creation of the International Criminal Court (ICC) in recent decades by international community have made enormous progress prosecuting crimes against humanity. These operational mechanisms have as their objects justice for the victims and deterrence from future violations. Important cases such as at the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) have brought home the necessity of accountability following the end of the Cold War.[2]
The development of accountability has been substantial but still stalled by uncertainties. The effectiveness of international tribunals, however, is hampered often by political interference, subsidiation of jurisdictional limitations, and resource constraints. Also, criticisms of particularly selective and biased prosecutions continues to doggen their legitimacy.[3]
The articles focus on the evolving accountability for crimes against humanity, with particular attention to the jurisprudence of the most recent international tribunals. This analysis examines progress made and remaining challenges in providing justice for the worst crimes by examining key cases, emerging trends and challenges. Consequently, it pursues the ongoing human rights and rule of law related discourse on the further strengthening of international mechanisms for ensuring that.
Defining Crimes against Humanity
Crimes against humanity are the highest gravity and scope crimes defined under international law. This was formally codified in the Charter of the Nuremberg Tribunal of 1945 as inhumane acts done against civil populations in time of war.[4] The definition has expanded from treaty to treaty and judicial decision to customary international law to include a broader array of violations over time.
The Rome Statute of the International Criminal Court (ICC) provides, according to Article 7, which acts include murder, enslavement, deportation, imprisonment, torture, rape, persecution, enforced disappearance, and other inhuman acts. The crimes must be mass crimes, being part of a widespread or systematic attack directed against any civilian population with knowledge of the attack. These acts differ from isolated criminal offences by their need for a ‘widespread or systematic’ character, indicating these are crimes that are linked to a state’s or organization’s policy.[5]
Key elements of crimes against humanity include:
- Widespread or Systematic Nature: Acts must be large scale or carried out systematically.
- Targeting Civilians: Victims must primarily be non-combatants.
- Contextual Element: The crimes must also be committed as part of a wider attack, such as conflict, state repression or persecution.[6]
Unlike war crimes, which do not require a nexus to armed conflict, the concept is applicable to both peace time and armed conflict. Procuration apartheid, ethnic cleansing, and other offenses has depended heavily on its broader applicability. International law defines these crimes by trying to make sure perpetrators have an account and victims get justice, furthering the basic principles of human rights and respect for humanity.
Historical Context and Evolution of Accountability
The crimes against humanity idea was developed in reaction to the Second World War savagery, the where the systematic campaigns of alienation and terror drew much needed policies meant to bring the offenders to justice. The Nuremberg Trials (1945–1946) broke important new terrain, in prosecuting Nazi leaders for crimes against humanity as a distinct category of the gravest international crimes of the time. These were the first trials which established the principle that if actions are alleged, it is the individual, and not the state, that can be held responsible under international law.[7]
From Nuremberg we go to the Genocide Convention of 1948 and the Geneva Conventions of 1949, which provide additional legal bases for combating mass atrocities. During the Cold War period (1947–1991), the prosecution of such crimes had been barely advanced by way of geopolitical tensions. Until the post-Cold War era, there were little progress made.[8]
The 1990s brought into being, by the United Nations, ad hoc tribunals such as the International Criminal Tribunal for the former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR). They had a major role in determining the nature and constituent elements of crimes against humanity. The ICTY brought prosecutions of mass killings, ethnic cleansing in the Balkans, while the ICTR dealt with the Rwandan genocide and set important precedents for the prosecution of high ranking officials.
The setting up of the International Criminal Court (ICC) under the Rome Statute in 2002 was a major institutional milestone. The ICC created a permanent mechanism for the prosecution of crimes against humanity, war crimes and genocide. Unlike its predecessors, it is independent and has jurisdiction over crimes committed by the nationals of member states or on their territories.
These achievements notwithstanding, challenges including questions of state sovereignty, political resistance and not least of all (has there been) limitations in enforcement, remain. Although, accountability mechanisms have evolved as a result of the global awareness toward the impunity for crimes against humanity and strengthening of justice and human rights requirement in the modern times.[9]
Recent Developments in International Tribunals
In recent years, there have been great improvements in the searching for justice for crimes against humanity, among which may be mentioned the work done by the International Criminal Court (ICC) and other judicial mechanisms. It has taken the form of efforts to prosecute high profile cases, to push legal precedents, while meeting changing needs in international justice.
- Notable Cases
There are several landmark cases which have influenced the normative understanding of crime against humanity, today. The trial for the former Sudanese leader Omar al-Bashir in relation to crimes in Darfur is an important step in putting to justice sitting heads of state. However, the case showed the ICC’s persistence, against the political and enforcement barriers, to do something about impunity.[10]
Like Dominic Ongwen, a commander of the Lord’s Resistance Army in Uganda, the conviction of bears out the ICC’s focus on individual responsibility. The trial of Ongwen had important ramifications on the relationship between culpable individuality and victimhood, as Ongwen himself came of age (and came of age as a victim) as a child.[11]
- Emerging Trends, and Precedents in Law
Advances in technology in recent years have drastically changed the evidence getting collected and presented in international tribunals. The mass atrocities, however, are documentable with the use of digital tools, satellite imagery, and AI enabled analysis lending to a strengthening evidentiary basis for prosecutions.
Furthermore, international jurisprudence has been emphasising the gender dimension as a crime against humanity and, therefore, courts have started to address sexual violence as a systematic weapon of war. Forced marriage and sexual slavery have been recognized as extra crimes which widened the scope of accountability.[12]
But the work remains unfinished. Lastly, international tribunals are undermined by political interference and inconsistent state cooperation since non co-operation is manifested in their failure to extradite suspects or allow them to recognize the ICC jurisdiction. Furthermore, selectivity and perceived bias in prosecutions affirm the need for somewhat more equity and inclusiveness in achieving such arrest policies.
Yet, in the past decade, there have been great commitments from the international community to enhance and strengthen accountability frameworks, which remain the bane of holding the accountability toothless. Tribunals succeed in addressing new and old challenges by adapting to them and building on established precedents in order to enable the fight for justice for victims and for yet another reinforced rule of law.
Challenges and Critiques
While considerable strides have been made in bringing to justice crimes against humanity, there remain important obstacles obstructing the functioning of international tribunals. Political interference and state non co-operation are the most pressing issues. Most often, the unwillingness to comply with internatonal arrest warrants or to extradite suspects weakens the authority of tribunals such as the International Criminal Court (ICC), especially those located in states with strong political interests. For instance, reluctance by some African states to work with the ICC, in particular in the cases involving high profile political figures such as Omar al Bashir, reflects ICC’s trials without state cooperation.[13]
There is however a significant barrier represented by resource limitations. Dish out American taxpayers’ hard earned money for international tribunals which, more often than not, often cannot afford travel for witnesses as well as being unable to carry out detailed investigations and trials: The result has been delays in proceedings that alienate victims and erode confidence in the justice system.
Also, the international courts are often criticized for such selectivity and biassed. Perceptions of injustice and inequality in Africa have resulted from most of the ICC cases. This has implicated concerns about the fairness and impartiality of international justice mechanisms’ demands for a more inclusive, balanced fashion in prosecuting.
Significantly, these problems raise the need of increased international coordination and reforms in order to ensure for the future that tribunals will be able to successfully and credibly confront crimes against humanity.
Conclusion
After World War II era, the pursuit of crimes against humanity is made with significant strides, with international tribunals, such as the Nuremberg Trials, International Criminal Court (ICC), and ad hoc tribunals have been at the forefront of prosecuting perpetrators. In many instances these mechanisms have proved to be critical in both shaping the contours of international law, promoting justice and upholding the pillar foundations of human rights. Prominent examples are omitted from this category like the cases of Omar al-Bashir and Dominic Ongwen which represent the gaining momentum to punish individuals perpetrating heinous crimes, no matter what place, or political standing they come from.
Nevertheless, there are still major hurdles. Despite political interference, lack of state cooperation, lack of resources and the lack of jurisdictional constraints, the international justice system still lags behind. Further, the perceived selectivity and bias in prosecutions add exponentially to the challenges posed by the singular goal of creating broad based legitimacy and trust in international tribunals. If international justice is going to be credible, effective and inclusive it will need to be able to get over these challenges.
Nevertheless, despite these constraints, the work of international tribunals that continues today still holds out an enduring commitment to addressing impunity, and ensuring that justice is done for victims of the most serious crimes. However, as these institutions change, they continue to be one of the very core tools of protection of the rule of law and for international responsibility to prevent and prosecute crimes against humanity.
References
[1] Antonio Cassese, Cassese’s International Criminal Law (2013).
[2] Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary (2003).
[3] Payam Akhavan, The Rise, and Fall, and Rise, of International Criminal Justice, 11 Journal of international criminal justice 527 (2013).
[4] Cassese, supra note 1.
[5] Gerhard Werle & Florian Jessberger, Principles of International Criminal Law (2020).
[6] William A Schabas, An Introduction to the International Criminal Court (2011).
[7] MILITARY TRIBUNAL, THE MAJOR WAR CRIMINALS.
[8] M Cherif Bassiouni, Crimes against Humanity: Historical Evolution and Contemporary Application (2011).
[9] Akhavan, supra note 3.
[10] Schabas, supra note 6.
[11] Lukáš Mareček, ICC: Prosecutor v. Dominic Ongwen, 7 Bratislava Law Review 125 (2023).
[12] Tanja Altunjan, The International Criminal Court and Sexual Violence: Between Aspirations and Reality, 22 German Law Journal 878 (2021).
[13] Schabas, supra note 6.
