The ICC 2016 ruling as means of development of International Law. First case focused solely on cultural heritage destruction as a war crime.
Introduction.
In order to articulate a discussion about the future of International Courts we must develop an enquiry about their current situation and functionality. In their relatively short history, the extent of their decisions, sentences and procedures have reach consistently jurisdictional relevance. A new stream of interpretation has spread admitting their modus operandi under a new ethos: «international courts can promote legal certainty, maintain the credibility of the legal undertaking of states, raise the costs of non-compliance, and defuse intra-regime tensions.»[1] For the sake of brevity, we will focus on the International Criminal Court[2] as a case of study. In terms of international law, as we will argue, the Court has contributed to a significant development of International Justice and ultimately clarified the role of such international tribunal in the current geopolitical situation.
Reaching understanding of a new international judiciary.
Even when the ICC has emerged relatively recently, many sectors of the international landscape, as well as in academic and policy circles continue the tendency to question its ultimate impact, considering it among the aftermath of other ineffective international justice tribunals, as an inefficient polarizing exercise or simply characterise it as biased institutions.[3]
Nevertheless, one of the most prominent principles of justice that rely under the Court’s jurisdiction is the notion of equality under the law. The Rome Statue, ratified by the Assembly relies on the consideration that the Court will pursue justice independently of considerations of political power and interest of specific actors involved. In first instance, we could argue that while journalists, human rights activists, members of the civil society or even scholars tend to see and establish dichotomies over genocide and atrocity trials, the Court focuses on finding truth strategies that could assess the discrepancies that come about and overall generate an instance for judiciary settlement, that eventually conducts into a transition towards peace and justice.
During this brief essay, our intention is merely to shed some light into the intricacies and complexity that characterize international courts systems, specifically the ICC credited for specific jurisdiction, practices and results without denying the fragile equilibrium between them. We simply intend to frame a query as in which measure, the present behavior and reception of the International Courts somehow determines their future? Since conducting a diagnostic on the efficiency and utter purpose of the ICC certainly far exceeds the length and aptitude of both, this paper and its author, we simply aim to bring the ruling against Al FaquiAl Mahdi delivered in 2016 as case of study to set in context, and not necessarily as unequivocal example of the Court’s success.
Almost four years ago on the 27th September 2016, the ICC delivered a sentence for its first trial focused solely on cultural heritage destruction as a war crime. It was also the first prosecution of an Islamic militant and meant overall, a tangible contribution to the development and clarification of the rules and principles of International Law in an absolutely groundbreaking case.Mainly, I would like to approach the mentioned ICC sentence from the perspective of a persuasive legal precedent[4] to recognize it among the most recent developments of the rules of international law. Although the Court itself –like other international courts and tribunals– frequently emphasizes that it has no power to legislate, we can view the decision of the Trial Chamber VIII unanimously declaring Ahmad Al Faqi Al Mahdi guilty of the war crime of attacking historic and religious buildings in Timbuktu and sentenced to nine years of imprisonment, as a proper precedent that emphasizes the importance of dispute settlement and plays down a substantial impact on the process of legal judiciary development.
Our intent then, is to recognize the actual impact of the Court’s pronouncement as an unavoidable legal development in order to assess its decision’s legitimacy as a form of judicial activism[5] of the caliber of international public authority. Therefore, I propose to acknowledge how this particular ICC decision among other pronouncements, has shaped specific aspects of international law finding a middle ground in conceptual debate, exploring its impact and contribution to advancing peace, security and well-being, including the fight against impunity for atrocious crimes.
During the mentioned trial, the attacks in 2012 perpetrated in Timbuktu were compared to other Islamic State’s cases of destruction of cultural monuments in the Syrian cities of Aleppo or Palmyra and also the Taliban’s wrecking of the Bamiyan Buddha statues in Afghanistan in 2001. Although, it is unlikely to open an investigation into such crimes and charge responsibilities upon any individuals from Iraq and Syria any time soon, the sentence delivered by the ICC versus Al Mahdi – a top commander of the Ansar Dine jihadist group– carries a symbolic weight. Neither Syria nor Iraq are signatory countries to the Rome statute, therefore without a mandate from the UN Security Council, an ICC investigation into such crimes is not yet possible. It is possible to recognize, nevertheless the broadly influence of the Court’s decision on certain areas of international law such as human rights, state responsibility and jurisdictional immunities. By identifying the Court’s ruling as a main contribution against the destruction of cultural heritage, a measure of terror that renders impossible the transmission of knowledge, ethical and moral values to the next generations, the influence of ICC pronouncement becomes an exempla of corregendi iuris that concerns the development of rules of international law, demonstrating an essential function[6] of the Court.
Acknowledging this ruling as a nuanced assessment of the Court’s impact on contemporary international legal development, that precedes from its role of law enforcement, condemning the destruction of Timbuktu’s mausoleums and Sidi Yahia Mosque supporting by consequence the UNESCO’s role. Interestingly, the ICC has no endeavor to provide a definition of the notion of cultural heritage, since it relies in the framework by the UN’s agency that provides extensive rights for protection of proclaimed cultural sites. Is it possible therefore to identify factors of success on legal development by the Court, since the ruling against Al Mahdi might established a deterrent for similar war crimes, concerning attacks against historic or religious monuments.
Conclusion.
Addressing this subject, hopefully we have acquired a better understanding of the process of international legal development and the ICC’s role in it. Tracking the influence of such international law-making processes as well as on the case of law of other quasi-judicial bodies the discussion turns to the Court’s contribution to interpreting and developing peremptory norms protecting the rights of peoples, namely the protection of cultural heritage as a vehicle of knowledge and cultural identity, strengthening a global culture of justice and serving as an advisory input to prevent the destruction of relevant world cultural heritage.
[1] 2009, Shany, Yuval, «No Longer a Weak Department of Power? Reflections on the Emergence of a New International Judiciary» in EJIL, Vol. 20, No. 1, 82.
[2] From now on referred as ICC or the Court.
[3] 2011, Arieff, Alexis et al. International Criminal Court Cases in Africa: Status and Policy Issues. Washington DC: Congresional Research Service, July 22, 2012 Luckscheiter, Jochen, Kirsten Maas-Albert, eds. A fractious Relationshipç Africa and the International Criminal Court. Cape Town, Heinrich Böll Stiftung.
[4] A. Boyle and C. Chinkin, The Making of International Law (Oxford: OUP,2007) 268.
[5] F. Zarbiyev, ‘Judicial Activism in International Law –A Conceptual Framework for Analysis’ 2012, 3 JIDS 247; Terris et al (n. 12) 121 et seq.
[6] C. de Visscher, Theory and Reality in Public International Law, Princeton: PUP, 1968.
Other sources:
https://www.icc-cpi.int/Pages/item.aspx?name=pr1154&ln=en
https://www.icc-cpi.int//Pages/item.aspx?name=otp-stat-08-04-2015-1
Our intent then, is to recognize the actual impact of the Court’s pronouncement as an unavoidable legal development in order to assess its decision’s legitimacy as a form of judicial activism[5] of the caliber of international public authority. Therefore, I propose to acknowledge how this particular ICC decision among other pronouncements, has shaped specific aspects of international law finding a middle ground in conceptual debate, exploring its impact and contribution to advancing peace, security and well-being, including the fight against impunity for atrocious crimes.
During the mentioned trial, the attacks in 2012 perpetrated in Timbuktu were compared to other Islamic State’s cases of destruction of cultural monuments in the Syrian cities of Aleppo or Palmyra and also the Taliban’s wrecking of the Bamiyan Buddha statues in Afghanistan in 2001. Although, it is unlikely to open an investigation into such crimes and charge responsibilities upon any individuals from Iraq and Syria any time soon, the sentence delivered by the ICC versus Al Mahdi – a top commander of the Ansar Dine jihadist group– carries a symbolic weight. Neither Syria nor Iraq are signatory countries to the Rome statute, therefore without a mandate from the UN Security Council, an ICC investigation into such crimes is not yet possible. It is possible to recognize, nevertheless the broadly influence of the Court’s decision on certain areas of international law such as human rights, state responsibility and jurisdictional immunities. By identifying the Court’s ruling as a main contribution against the destruction of cultural heritage, a measure of terror that renders impossible the transmission of knowledge, ethical and moral values to the next generations, the influence of ICC pronouncement becomes an exempla of corregendi iuris that concerns the development of rules of international law, demonstrating an essential function[6] of the Court.
Acknowledging this ruling as a nuanced assessment of the Court’s impact on contemporary international legal development, that precedes from its role of law enforcement, condemning the destruction of Timbuktu’s mausoleums and Sidi Yahia Mosque supporting by consequence the UNESCO’s role. Interestingly, the ICC has no endeavor to provide a definition of the notion of cultural heritage, since it relies in the framework by the UN’s agency that provides extensive rights for protection of proclaimed cultural sites. Is it possible therefore to identify factors of success on legal development by the Court, since the ruling against Al Mahdi might established a deterrent for similar war crimes, concerning attacks against historic or religious monuments.
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| ICC permanent premises in The Hague |
Conclusion.
Addressing this subject, hopefully we have acquired a better understanding of the process of international legal development and the ICC’s role in it. Tracking the influence of such international law-making processes as well as on the case of law of other quasi-judicial bodies the discussion turns to the Court’s contribution to interpreting and developing peremptory norms protecting the rights of peoples, namely the protection of cultural heritage as a vehicle of knowledge and cultural identity, strengthening a global culture of justice and serving as an advisory input to prevent the destruction of relevant world cultural heritage.
[1] 2009, Shany, Yuval, «No Longer a Weak Department of Power? Reflections on the Emergence of a New International Judiciary» in EJIL, Vol. 20, No. 1, 82.
[2] From now on referred as ICC or the Court.
[3] 2011, Arieff, Alexis et al. International Criminal Court Cases in Africa: Status and Policy Issues. Washington DC: Congresional Research Service, July 22, 2012 Luckscheiter, Jochen, Kirsten Maas-Albert, eds. A fractious Relationshipç Africa and the International Criminal Court. Cape Town, Heinrich Böll Stiftung.
[4] A. Boyle and C. Chinkin, The Making of International Law (Oxford: OUP,2007) 268.
[5] F. Zarbiyev, ‘Judicial Activism in International Law –A Conceptual Framework for Analysis’ 2012, 3 JIDS 247; Terris et al (n. 12) 121 et seq.
[6] C. de Visscher, Theory and Reality in Public International Law, Princeton: PUP, 1968.
Other sources:
https://www.icc-cpi.int/Pages/item.aspx?name=pr1154&ln=en
https://www.icc-cpi.int//Pages/item.aspx?name=otp-stat-08-04-2015-1
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