What is the effect of human rights principles on the value of prosecutions at the International Criminal Court?
The International Criminal Court was created with the ideological aims that impunity for mass crimes be brought to an end, and that future incidents of “core crimes” be prevented. Justice is to be achieved in the name of victims, and in the name of the international community. However, these ideals have been undermined by the realities of the international criminal justice system that has resulted. This article will briefly consider the effect of human rights on the value of prosecutions at the ICC.

International justice v human rights
This article pits international justice and human rights against each other. This may be controversial, but closer to reality than one might hope. The International Criminal Court holds within its jurisdiction the crimes of genocide, war crimes, crimes against humanity, and crimes of aggression. The court is to prosecute and punish the perpetrators of crimes which “shock the conscience of mankind”. In so doing, the hope is that future atrocities will be prevented; the threat of international prosecution will deter potential criminals. Secondly, retribution will be exacted; perpetrators will get their “just deserts”, victims will be vindicated. It is unfortunate, thus, that human rights principles prevent any of these aims from being achieved.

Sanctions under the ICC
The ICC essentially has only one weapon in its belt of possible sanctions; imprisonment. The maximum sentence it may hand down is 30 years; stretching to life imprisonment in rare cases of extraordinary gravity. (One is, I think, forgiven for being confused by this “exception” given the nature of the crimes within the Court’s jurisdiction, but this is not the focus of the current article). Any more severe sanctions, such as longer imprisonment, and the death penalty, are excluded in a bid to uphold the human rights of perpetrators.

A maximum of 30 years imprisonment for those individuals actually caught and tried is hardly a great threat to the minds of perpetrators of genocide and war crimes. It is wrong to treat these actors as rational calculators, who consider their options, and thereafter are deterred by the minute threat of imprisonment. From the point of view of victims, is 30 years imprisonment for their abusers really sufficient justice when compared to the atrocities that have been inflicted upon them?

Compounding this deficiency is the fact that in some domestic jurisdictions, the death penalty is still available for particularly heinous crimes. Thus, the ICC, the superior court defending the law of the international community, doles out lesser sanctions than a national court. The ICC fails to pose a real threat, but is in fact a preferable alternative to prosecution under national law. Victims see their abusers escape real punishment from the point of view of local traditions. The ICC falls short of providing the justice it proclaims, all in the name of human rights.

Prisoners’ conditions under the ICC
A further issue is that of prisoners’ conditions, and health care. The ICC produces a list of states, at least one of which must accept to carry out the sentence of convicted prisoners. This list is drawn up on a basis of which states have satisfactory living facilities for prisoners. This includes adequate medical care, and disease control. Thus, the reality unfolds: of the situations investigated so far, none of the states involved are likely to be deemed to have internationally acceptable prison standards. Given the high prevalence of HIV/AIDS in the states currently involved, it is entirely possible that the accepting prison will be required to provide adequate medication and care. Ultimately, convicted genocidaires will be sent to a high-standard prison facility, receive quality medical care, and thus have a standard of living far beyond that of the average population in these states.

My intention, in this article, is not to suggest that perpetrators of mass crime should not be treated with due respect for their human rights. My intention is to highlight the fundamental tension between human rights, and the desired effect of the international criminal justice system, as headed by the ICC. It is wrong that convicted perpetrators of these “core crimes” are treated better than the victims they have left behind. My question is this: how can an International Criminal Court (and the justice system behind it) justify granting to criminals, those rights, which it cannot guarantee for the victims and surviving population of a mass atrocity?

Gabriella Mulligan has a first-class law degree from Kent and is now studying for an LLM at Cambridge University