As Russian artillery shells fall indiscriminately in Ukraine, efforts are under way by the international community to document the resulting human rights violations, including a range of attacks that likely constitute war crimes and crimes against humanity. These efforts may indeed be the most robust in recent history. But as the International Criminal Court (ICC) commemorates its 20th anniversary on July 17, international criminal justice’s uneasy relationship with the ICC looms large.
Often criticized for having done too little too late to secure justice for victims of crimes against humanity, war crimes, and genocide, the ICC, the world’s only permanent criminal court, reifies the good, the bad, and the unintended consequences of the Court’s best intentions.
The ICC at age 20 is a story about complementarity in action and the courageous witnesses, investigators, prosecutors, and judges working at national level.
While the ICC was created in 2002 to be a major venue for investigating and prosecuting war crimes, crimes against humanity and genocide, many factors have made the Court less likely to be able to respond to atrocities. However, the domestication of the Rome Statute by many States has enabled some groundbreaking developments for international justice to be implemented at the national level.
The ICC at age 20 is a story about complementarity in action and the courageous witnesses, investigators, prosecutors, and judges working at national level.
Despite its mixed record, the ICC has both benefited from and catalyzed one of the most promising developments since the signing of the Rome Statute, the ICC’s foundational covenant: the symbiosis between the law, on the one hand, and medicine and public health, on the other. This partnership has spawned both good healthcare practices and powerful forms of justice for human rights victims.
Achieving meaningful accountability for grave crimes is painstaking work. Securing indictments and convictions of war criminals requires vast amounts of fact-based evidence. Here at Physicians for Human Rights (PHR), an international non-governmental organization working at the intersection of medicine, science and human rights, we have both witnessed and facilitated the growing role of science in criminal justice.
Achieving meaningful accountability for grave crimes is painstaking work. Securing indictments and convictions of war criminals requires vast amounts of fact-based evidence.
The pioneering work of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda in the 1990s saw early advances in accountability. PHR’s forensic teams have also advanced criminal justice by exhuming mass graves in the former Yugoslavia and providing expert testimony before the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda.
Similarly, a measure of domestic accountability was achieved in the shadow of the ICC’s broader engagement in the Democratic Republic of the Congo (DRC). PHR partner Nobel Prize-winner Dr. Denis Mukwege, a Congolese gynecologist and first-hand witness to mass rape in eastern Congo, used systematic forensic documentation to establish the use of rape as a weapon of war, opening the door to accountability for thousands of survivors.
For example, following the abduction and rape of more than 42 children in 2013 – one as young as 18 months old – a Congolese court convicted 11 militia members of crimes against humanity by rape and murder and sentenced them to life in prison. This marked a watershed moment for justice in the DRC. The so-called Kavumu case blended forensic medicine and criminal justice in a way that is emblematic of the mutual advances these two fields have made in recent years and their increasing interdependence in achieving justice.
Given the widespread nature of conflict-related rape worldwide, true justice for survivors must first and foremost be secured at the local and national levels, following the principle of complementarity with the ICC. To that end, PHR has trained hundreds of health professionals to document conflict-related rape and other atrocity crimes, including through the global adoption of the Istanbul Protocol, UN-backed international guidelines for documentation of torture and its consequences.
A revised version of the Protocol, supported by PHR and integrating some twenty years of advances in the field, launched in June. Over the previous six years, PHR had led a comprehensive, global effort to update the Istanbul Protocol with advances in anti-torture jurisprudence, investigation and documentation practices, and additional implementation guidance to States and civil society based on experience in more than 40 countries over the previous 20 years.
Over time, PHR has increasingly come to understand the Rome Statute not only as a legal text, but as a touchstone in a much broader system of international justice (the “Rome Statute system,” as it is often referred to), in which domestic courts, prosecutors, investigators, civil society, and, critically, medical professionals all have vital roles to play.
Justice for grave crimes has advanced substantially, in practice and symbolically, since the ICC’s establishment twenty years ago. Recent experience shows that the future of those advances will be in the hands of health professionals as well as lawyers, researchers, and advocates.
Moreover, the struggle to infuse human rights principles into criminal proceedings will – and must – be led by communities closest to the violations, at community and national level. That struggle is likely to be the essence of medico-legal efforts to advance international criminal justice in the next twenty years.