Development of the Patronage System

For the majority of music history, composers were incentivized to create without legal protection; the idea that musicians had enforceable rights only developed in the nineteenth century. Before that, the support of societal institutions, nobility and wealthy individuals were the main incentives for composers to create. The Roman Catholic Church was, in fact, one of the earliest recorded patrons: the Catholic Church would require musical compositions to intone the Mass and monks rarely received individual recognition for their works, let alone monetary compensation. In addition, the chants freely circulated among many churches.

The role of history

Until the end of the 20th century, no permanent international criminal court to assess the liability of state officials for human rights violations and other serious crimes had ever been established. Many institutions, such as the League of Nations, had already affirmed the necessity of a supranational criminal tribunal during the period between the two world wars [1]. Moreover, in 1945, two important tribunals were settled in Nuremberg and Tokyo to sentence German and Japanese officials for the violations committed during the war. However, these courts continued to be the only two instances for the following 45 years.

During that period, the United Nations tried several times to establish a court in that sense, but all the efforts failed, mainly due to the absence of the necessary consensus among States on defining a common framework. For instance, in 1948 the Convention against torture specifically expressed the need to create an international tribunal to effectively put on trial individuals who had committed such crimes, but it took decades for it to become a reality. An agreement between nations was difficult to reach, even for the definition of certain essential legal terms, such as ‘aggression’ [2]. The lack of such judicial institutions became particularly evident when the certainty of the bipolar world ended and many weak constitutional systems collapsed.

The two conflicts in Yugoslavia and Rwanda, which are quite similar concerning historical and social factors, are particularly important from this aspect. They both started from profound ethnical problems that national governments had apparently been able to repress for years and eventually started to explode during the first episodes of the crisis.

Even though Yugoslavia was considered a moderately developed and peaceful country for 50 years, in just 6 months it became the site of multiple massacres and ethnic cleaning between people who had coexisted peacefully until 1991. Sarajevo went unexpectedly from being a placid town, even the host for instance of the 1984 Winter Olympic Games, to being the city symbol of the Yugoslavian war, subjected to the longest siege of the second half of the 20th century, and the site of serious crimes mainly committed against civilians and children. The war was sparked by the proclamation of independence of two federal republics, Croatia and Slovenia. The Belgrade central government refused to recognise the independence and subsequently sent the army to the border. While the war in Slovenia was coming to an end in 1991, the situation in Croatia degenerated irreparably and started spreading into other regions, such as Bosnia – Herzegovina, where some particularly harsh criminal violations began to take place. The international institutions were unable to efficiently prevent the escalation of this crisis and when the UN eventually decided to intervene, the war had already reached a very advanced stage. The Security Council took the first significant step in 1992 when it assembled a commission of experts to gather evidence regarding the conflict and report them [3].

A similar case occurred in the Rwandan civil war of 1994, during which extremists of the Hutu faction killed up to one million Tutsi and other moderate Hutu in systematic ethnic genocide.[4] Similarly to the case of Yugoslavia, the UN’s initial actions were criticized, mainly for having reduced the number of peacekeepers in Rwanda a few days before the genocide occurred in April 1994 [5]. However, some months after, also for Rwanda a Commission of investigation was settled by the Security Council [6]. It had become clear that an international criminal court was necessary, especially for the regions in which were absent national institutions capable of effectively sentencing the many responsible for serious human rights violations.

The first step: international ad hoc tribunals for Yugoslavia and Rwanda

The Security Council decided in 1993, before the Yugoslavian war ended, to establish the International Criminal Tribunal for Former Yugoslavia (ICTY), the first international criminal court since the 1940s.[7] The following year, a special tribunal for Rwanda (ICTR) was assembled.[8] The Security Council, considering the seriousness of the situation, acted under Chapter VII of the UN Declaration and adopted two separate Resolutions to establish these courts. This procedure was preferred to signing a treaty, which would require too much time and be at risk of being ineffective, due to the requirement of ratification for it to be binding for all countries [9].

The jurisdiction of ICTY covered all crimes perpetrated in the Former Yugoslavia since 1991. The absence of a final year allowed the Court to try crimes committed during not only the first war of 1991-95 but also the 1998-99 conflict, between Serbia and Kosovo. The ICTY was the first international tribunal to indict, in 2000, an incumbent head of state, Slobodan Milosevic, who later resigned from his official role and was surrendered by the Federal Republic of Yugoslavia. However, the trial never concluded due to Milosevic’s death before being sentenced. A significant case was also the one about Radislav Krstic in 2001, a Serb general who was convicted for genocide for his contribution in the Srebrenica massacre and was sentenced to 46 years of imprisonment, which was later reduced to 35 by the Appeal Chamber.

The jurisdiction of ICTR was particularly complex, as it included not only the territory of Rwanda but also, with respect to Rwandan citizens, the “neighboring States”. The most significant conviction of the ICTR was the one against Jean Kambanda, Rwanda’s prime minister during the war. Kambanda was accused of genocide and five other related counts, including conspiracy and public incitement to commit genocide. He was sentenced to life imprisonment [10].

Based on the two aforementioned cases, it can easily be inferred that both ICTY and ICTR ensured, unlike the Nuremberg and Tokyo tribunals of 1945, the two important guarantees of the right to appeal and of life imprisonment, rather than the death penalty, which were later on achieved by all international criminal courts. This marked a historic development for the criminal procedure in fifty years, since the Statute and the rules of procedure were developed to ensure a standard of defense and human treatment for the convicted, regardless of the cruelty of the crime.

The second step: hybrid courts.

More recently, hybrid courts were preferred to pure international ones mainly because of financial containment reasons and the need to improve coordination with local governments.[11] An example is the Extraordinary Chambers in the Courts of Cambodia, established in 2004 to try crimes perpetrated in the Asian region by the Khmer Rouge dictatorship between April 17^th, 1975 and January 6^th, 1979. As the name suggests, the Court was composed of a mixed panel of judges, both international and national ones, and the legislation regulating its operations was national, with the only transnational act being the base agreement between Cambodia and the UN. Similar bodies were established for the Sierra Leone civil war and the Lebanon terroristic attacks of 2005 [12].

The influence of state procedures in the establishment of these tribunals is particularly interesting. ICTY and ICTR were mostly influenced by common law, which is reflected in the extensive use of external references (for instance, we can find special attention to the ECtHR decisions, followed by the United Nations Human Rights Committee) and a privilege for witnesses-proofing and cross-examination. This trend is less evident in hybrid Courts such as the Cambodian one, in which the influence of French civil law tradition is more present [13].

The creation of the ICC: achievements and problems

The evolution of international criminal courts is strictly connected to the social and historical teachings which helped the international community better assess the constantly developing reality. Even though the ICTY, the ICTR, and hybrid courts were conceived as temporary tribunals [14], it became apparent, at the end of the century, that a permanent international court was necessary.

This movement led to a historic development in 1998 when the Rome Statute established the International Criminal Court (ICC). Its jurisdiction is limited to the state’s parties of the Statute.[15] However, non-party states may confer jurisdiction over their nationals and territory.[16] The Security Council also has the power to confer jurisdiction on the ICC with respect to the territory of a non-party state and even to a portion of the territory within such a state. The ICC prosecutes mainly senior officials and heads of state and governments. This has resulted in the frequent application of article 27 of the Statute, which affirms the irrelevance of personal immunity to allow the ICC to indict these people, even when they are still in office.

Even though the ICC can generally be considered as a successful development in the international criminal enforcement system, certain problems remain. In detail, three permanent Security Council members (Russia, China, and the US) have not joined yet, since they have not ratified the Rome Statute. Furthermore, the enforcement system of the ICC has been criticized for being excessively slow, as it is based mainly on the involvement of the national systems. The ICC does not have, indeed, an own penitentiary structure. Upon conviction, the criminal must be sent to a national prison. As a result, in the past, certain states which are not members of the ICC refused to surrender their officials or head of states after an ICC indictment. Finally, it has to be stressed that the role of the ICC is supplementary to national courts, reflected also in the jurisdiction ratione materiae, meaning that national courts maintain their primacy unless they are unwilling or unable to carry out proceedings ‘genuinely’: this is checked by the ICC considering a series of conditions.

Today, opinions about the ICC's role and work over the past 20 years are quite variable. Accusations of underperformance [17] are counterbalanced by supporting recognition of its indisputable extensive efforts to make the human rights enforcement system more effective, especially in the context of conflicts and social riots. Historic and political changes usually play a significant role in defining the juridical possibilities of action.

A recent case explains how legality aims are often considerably influenced by political contingencies. In 2010, the ICC indicted for the first time an incumbent Head of State, Omar Hassan Ahmad Al Bashir, President of Sudan, accused of organizing crimes against humanity in the Darfur War since 1993 [18]. An arrest warrant was issued, combined with an international travel ban. However, as Sudan has not ratified the Rome Statute and the ICC jurisdiction system cannot do anything in terms of enforcement, President Bashir has continued to exercise his power and has made diplomatic visits in various countries, including Egypt, Saudi Arabia, and South Africa. This stalemate was overcome only recently. In 2019, a coup d’état ousted Bashir and led to the establishment of a new government. Contacts between the ICC and the government were initiated and in 2020 the new Prime Minister Abdalla Hamdok declared that he has started negotiations with the ICC about the possibility of trying Al Bashir in a "hybrid court" in Sudan [19].

To conclude, the ICC system constitutes, despite its many problems, a substantial innovation in international criminal law and the decrease of human rights violations, which was possible also thanks to the course of history and the sometimes-unexpected alterations. Even though 20 years have passed since the establishment of ICC, any conclusion regarding its effectiveness should wait for a longer period. The recent development of Al-Bashir’s case is an example. Historic necessities such as the ICC should be judged after a longer period of time since it will only be able to effectively demonstrate its utility in the next decades. Regardless, the innovative Statute and the recent amendment of 2010 can still be seen as the first step in an international effort of connecting serious violations to liabilities and overcoming - or at least trying to overcome - the impunity of Heads of state and government officials.

Published on 13/05/2021