The International Criminal Court
Introduction
Since its inception, the United Nations (UN) has recognized the need for an international criminal court to punish and deter war crimes and genocide. UN Resolution 260 of 1948 stated that international cooperation was required to prevent the heavy loss of humanity occasioned by genocide. The General Assembly recommended the establishment of an “international judicial organ for the trial of persons charged with genocide.”1 The UN’s General Assembly has had discussions to prepare a framework to establish an international criminal court in the intervening years. In 1951 and 1953, draft statutes were prepared, but the General Assembly never operationalized their implementation. Bloody civil conflicts in Yugoslavia (1993) and Rwanda (1994) stimulated the need for a judicial body to hold individuals accountable for atrocities and cause of widespread human suffering. Adhoc tribunals were formed to try the perpetrators of the conflicts in Yugoslavia and Rwanda, namely the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda. Buy this excellently written paper or order a fresh one from ace-myhomework.com
1 Rome Statute of the International Criminal Court. Overview. Retrieved from https://legal.un.org/icc/general/overview.htm
The International Law Commission drafted a statue to establish an International Criminal Court and submitted it to the General Assembly in 1994. The General Assembly considered the statute, and through a series of ad-hoc committees, they amended and completed the statute’s drafting.
After that, the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court was convened in Rome to adopt a convention on the establishment of an international criminal court. The Convention, popularly known as the Rome Statute, became operational on 1st July 2002 and established the International Criminal court (ICC) in The Hague, Netherlands. Currently, the statute has 123 member states.
Objectives of the ICC
In this section, this paper lays out the objectives of the ICC to lay down a basis for establishing whether the ICC has been successful in carrying out its mandate.
a) To promote universal justice
There have been numerous conflicts throughout human history where innocent and unarmed civilians have been made to pay the ultimate sacrifice. In many of these cases, the people most responsible for the violence and gross violation of inalienable human rights have escaped personal responsibility due to the absence of a body capable of holding them accountable. Examples of such conflicts where no one was held accountable include conflicts in Cambodia, Liberia, and El Salvador. This situation has been the source of grave injustice all over the globe.
The ICC handles cases against individuals, and it is supposed to enforce laws against acts that cause grave violations of human rights. Through its mechanisms, the ICC aims to hold accountable all persons who instigate and perpetrate genocide, crimes against humanity, war crimes, and crimes of aggression2. Through the ICC, the voices of victims are heard, and appropriate measures to heal communities are initiated, thereby actualizing retributive and restorative justice3 .
b) To bring about an end to impunity
2 Article 5, Rome Statute of the International Criminal Court
3 Van den Wyngaert, Christine. "Victims before International Criminal Courts: Some views and concerns of an ICC trial judge." Case W. Res. J. Int'l L. 44 (2011): 475.
Impunity may be defined as the exemption from consequences of a person’s harmful conduct. Crimes against humanity are committed by persons and not abstract concepts such as states. In the absence of a court to try violators of international criminal law, there is no one to hold such violators responsible for their actions; hence the perpetrators are impliedly encouraged. Through the ICC, human rights violators are held accountable for their actions; hence there is direct prevention of impunity and the general idea that one can get away with violating international criminal law4 .
c) To intervene where national justice systems are unable to act
The outcome of the severe conflict is usually the collapse of crucial national systems such as the judiciary. In other cases, aggressors end up as high-ranking officials of post-conflict regimes. In both instances, it is nigh impossible that the national systems will prosecute the violators of international criminal law. This was the situation in both the Former Yugoslavia and Rwanda, but ad-hoc international criminal tribunals were able to intervene and bring the perpetrators to book. In the same spirit, the ICC aims to ensure a forum where international criminal law suspects who evade the national criminal justice system can be arraigned and brought to justice.
d) Deterrence
In keeping with one of the overall goals of criminal law, the ICC has an objective of deterring would-be war criminals by meting out punishments proportional to the crime one is found guilty of. In previous times, international law criminals were free to run their campaigns of brutality and violation of human rights without the threat of sanction. However, with the establishment of the ICC, such persons have been noticed that instigating gross violations of human rights will render them personally liable. It is expected that the threat of punishment will serve as a sufficient deterrent against gross violations of international criminal law5
e) To end armed conflict
4 Kirsch, Philippe. "The International Criminal Court: current issues and perspectives." Law and Contemporary Problems 64, no. 1 (2001): 3-11.
5 Report of the Secretary-General, 23 August 2004, S/2004/616, para. 49
The ICC shares the values of humanity espoused by the United Nations through the UN Charter and the Universal Declaration of Human Rights (UDHR)6. The ICC’s objective is to ensure that member states comply with international law to ensure that incidents of mass violence and breaches of humanitarian principles are entirely eradicated. By enforcing the international criminal law, the ICC hopes to prevent the recurrence of mass violence by imposing personal responsibility while will serve as a deterrence measure7
Achievements
The 2nd president of the ICC, Judge Sang Hyun Song, believes that establishing the court is a significant achievement8. With the advent of the Rome Statute, a new legal regime was created to prosecute international war criminals. The Rome Statute has forced accountability upon regimes all across the world. Presently, the court has helped to develop knowledge about crimes against humanity and genocide to the extent that it is expected that there will be investigations and prosecution in the event of the commission of such crimes.
The ICC and its establishing statute have promoted the welfare of the victims of crimes against humanity and war crimes. The statute places significant emphasis on the protection of victims. Consequently, proceedings before the ICC involve the victims of the crime, and the court is mindful of the interests of the victims during the entire process, including sentencing. Further, a Trust Fund established by the Statute assists victims even beyond the courtroom and has been able to provide financial support to thousands of victims9 .
Today, the ICC leads the clamour for justice and gross human rights violations accountability. People in places that have experienced mass violence, such as the Middle East and North Africa, now demand that oppressive leaders be taken to The Hague10. This situation was not fathomable
6 Song, Sang-Hyun. "The role of the International Criminal Court in ending impunity and establishing the rule of law." UN Chronicle 49, no. 4 (2012): 12-15.
7 Robinson, Darryl. "Serving the interests of justice: Amnesties, truth commissions and the International Criminal Court." European Journal of International Law 14, no. 3 (2003): 481-505.
8 Song, S. "Past achievements and future challenges of the ICC." (2018).
9 Damaška, Mirjan. "The International Criminal Court between aspiration and achievement." UCLA Journal of International Law and Foreign Affairs (2009): 19-35.
10 Mark Kersten. The ICC Three Remarkable Achievements. (2012). <https://justiceinconflict.org/2012/07/09/theicc-three-remarkable-achievements/> Accessed 31st April 2022
a decade ago and is a testament to the incredible work that the ICC has done in shaping the global narrative around Human Rights enforcement.
The ICC stands as a beacon for the hope that both retributive and restorative justice can be done to perpetrators of mass violence and their victims. Millions of people worldwide have suffered and continue to suffer under despots and brutal regimes. The independence and impartiality of the ICC provide hope that even in cases where the perpetrators of mass violence escape local or national justice, they can still be held accountable under the ICC. For instance, the former leader of Liberia, Charles Taylor, was convicted by the ICC for his role in planning, aiding, and abetting heinous crimes against humanity. This was after the country showed little political will to prosecute Charles Taylor. Additionally, Taylor had sought exile in foreign countries, thereby escaping the jurisdiction of his homeland. The conviction of Charles Taylor represented a big win for the rule of law in its fight against gross impunity.11
Failures and shortcomings
The ICC had lofty ambitions at its inception. However, its effectiveness has been brought into question in the intervening years. Many commentators believe that the court has failed in its aim of responding to global conflict and bringing to justice persons accused of committing mass atrocities. The critics of the court point to its conviction rate when questioning its effectiveness. Since its formation, there have been thousands of potential cases that fell within the jurisdiction of the ICC. However, as of 2020, only 44 individuals had been indicted, and only nine convictions had been secured at the ICC12. These numbers represent a tiny fraction of the potential impact that the founders of the ICC had hoped it would have. Consequently, the difficulty of getting a conviction at the ICC has meant that the court has been unable to fully act as a deterrent to violators of international law and human rights. For instance, the court acquitted the former vice president of Congo, J.P. Bemba, despite finding that his troop committed crimes against humanity in the Central African Republic. The acquittal was based on the finding that there was insufficient evidence to attach command responsibility to the accused.
11 Marlise Simons and David Goodman. Ex-Liberian Leader Gets 50 Years for War Crimes. (The New York Times. May 30, 2012) <https://www.nytimes.com/2012/05/31/world/africa/charles-taylor-sentenced-to-50-years-for-warcrimes.html > accessed on 31st March 2022
12 Goodman, Sarah J. "The Effectiveness of the International Criminal Court: Challenges and Pathways for Prosecuting Human Rights Violations." Inquiries Journal 12, no. 09 (2020).
The ICC was created to be an independent and impartial institution to try the perpetrators of the most heinous and violent violations of international law. Its independence and impartiality have repeatedly been questioned, especially by African countries who perceive that the ICC unfairly targets them and their leaders13. As a result, the ICC has been accused of being a tool of Western imperialism and undermining the countries’ sovereignty in the third world while allowing persons from the Western world to walk scot-free for the same crimes.
The ICC has committed itself to promote universal justice but ultimately falls short of this lofty objective. First, the procedure for initiating a case at the court leaves it open to manipulation. A case may begin either by the state, prosecutor, or referral from the UN’s Security Council. Powerful states that have not ratified the Rome Statute, such as the USA, Russia, and China, can operate outside the ambit of the ICC without the threat of repercussions from the court. On the other hand, the five permanent members can veto any referral from the UN Security Council, thereby undermining international peace and justice. In the recent past, it has been seen that the Security Council will refer to states without powerful allies, such as Libya. In contrast, a state such as Syria seemingly has immunity from its strong ties to Russia and China. Despite both countries suffering from gross human rights violations and mass violence, this is despite gross human rights violations and mass violence. As a result, the culture of impunity continues unfettered in some parts of the globe.
In executing its mandate, the ICC relies on the cooperation of member states. It seeks the assistance of member states in effecting arrests, investigations, and enforcement of sentences. Despite starting out enjoying the goodwill of most member states, the court has suffered a breakdown in networks between itself and its supporters. The USA, Russia, and China are not member states, and in some cases, they have actively worked to undermine the ICC. A case in point is the Bilateral Immunity Agreements the US has signed with more than 100 states ostensibly to protect its sovereignty. On the other end of the development scale, African countries have lost trust in the court due to a perceived African bias. Consequently, African states have failed to render support and cooperate with the court with the full blessing of the African Union. States such as Burundi and Gambia have opted out of the Rome Statute. 13 Werle, Gerhard, Lovell Fernandez, and Moritz Vormbaum, eds. Africa and the international criminal court. Vol. 1. Springer, 2014.
Findings
The ICC created a new legal regime in international law where individuals could be held accountable for crimes within the court’s jurisdiction. As a court of last resort, the ICC has been able to indict persons who would otherwise have escaped justice in the local and national contexts. The court has made significant strides in the time it has existed, helping to develop jurisprudence on international law crime, promote and educate on respect for human rights, and assist victims in accessing restorative and reparative justice14
While it has undoubtedly had some wins, it is widely accepted that the court still has some way to go before it can be said that it has attained its aims and objective reason of the reasons that the court cannot bring an end to global conflict is that the prosecutors cannot initiate cases against non-member states in the absence of a referral from the UN Security Council. The outcome is that acts of aggression continue unchecked, safe knowing that there will be no personal responsibility after all the carnage and bloodshed are done. A perfect example to illustrate this situation is the recent invasion of Ukraine by Russia. Russia, a permanent member of the Security Council, can veto any referral to the ICC, plus it has never ratified the Rome Statute. Consequently, its leaders, such as Vladimir Putin, operate with impunity, knowing that they are unlikely ever to find themselves in the Hague answering to charges that fall within the jurisdiction of the ICC.
Towards Reform
a) Universal jurisdiction
Universal jurisdiction, as defined by the European Centre for Constitutional and Human Rights, is a term that refers to the power of international organizations to try criminal suspects regardless of the alleged crime and the nationality of the suspects15. The ICC enjoys general jurisdiction subject to the provisions of the Rome Statute. The Court’s jurisdiction is limited to the territory of a state party and crimes committed by a national of the state party16. The Rome Statute provides situations where the court may exercise jurisdiction concerning the crimes in Article 5.
14 De Hoon, Marieke. "The future of the International Criminal Court. On critique, legalism and strengthening the ICC’s Legitimacy." In Strengthening the Validity of International Criminal Tribunals, pp. 17-42. Brill Nijhoff, 2018.
15 Retrieved from https://www.ecchr.eu/en/glossary/universal-jurisdiction/
16 Article 12.2 Rome Statute of the International Criminal Court
The first situation is where a state party refers a case to the prosecutor; the second situation is where the case is referred to the prosecutor by the Security Council as per Chapter VII of the UN Charter, and the final situation is where the prosecutor initiates an investigation in respect of a suspected crime.
Of the three situations where the court may exercise jurisdiction, two are limited to countries that have ratified the Rome statute or accepted the court’s jurisdiction concerning an alleged crime. Only when the UN Security Council refers a matter to the prosecutor would the ICC have jurisdiction over the national of a country that is not a party to the Rome Statute. In such a scenario, it is possible to say that the court has universal jurisdiction. However, as discussed hereinabove, interference from the UN Security Council severely limits the jurisdiction of the ICC. Three of the five permanent members of the Security Council are not party to the Rome Statute; hence they wield their veto power against the Court. It has been seen that the US will block any attempts to refer its nationals to the ICC, such as in cases where there have been accusations that they committed atrocities in Iraq and Afghanistan. On the other hand, China and Russia have blocked the arraignment of perpetrators responsible for war crimes in Syria17
Proponents favour giving the ICC universal jurisdiction to act Proprio motu point to the unequal power exercised by the permanent members of the Security Council in limiting the court’s jurisdiction. Further, they argue that limiting the jurisdiction of the ICC undermines the objective of the Rome Statute, which is to put an end to impunity for international crimes and contribute to the prevention of such crimes18. Therefore, it is sensible to propose that the ICC’s jurisdiction be expanded to cover a universal reach to boost its effectiveness and bring more countries and territories under its jurisdiction. If the actual had actual universal jurisdiction, it would have jurisdiction to try crimes committed in any part of the world, whether or not committed within the territory or by a national of a party state; and whether or not the UN Security Council has referred the matter.
In the present dispensation, the ICC’s jurisdiction is limited to the territory and nationals of state parties. This leaves out from its ambit some of the worst perpetrators of international law crimes who happen to be non-state actors. Such groups include Boko Haram in Nigeria, the Islamic
17 Scheffer, David J. "Staying the course with the International Criminal Court." Cornell Int'l LJ 35 (2001): 47.
18 Paragraph 5 of the Preamble of the Rome Statute of the International Criminal Court
State in the Middle East, and the Taliban in Afghanistan. These groups tend to operate in territories that are not a party to the Rome Statute; hence they cannot be prosecuted before the ICC. In effect, as long as such aggressors exist and can operate in impunity, then the ideal of a conflict-free world will remain unattainable for the foreseeable future. Granting the ICC universal jurisdiction to act Proprio motu against such non-state aggressors and those backed by states will significantly combat such actors. Additionally, the threat of personal liability for international law crimes will deter planners and perpetrators of international law crimes.
Many countries, including the USA, were against granting the ICC universal jurisdiction because it would directly attack their sovereignty. This presented a credible problem to the establishment of the ICC since the court depends on the cooperation of its member states to carry out its mandate. The fear is that giving the ICC universal jurisdiction would see many states withdraw from the Rome Statute. The net effect will be that the court would lose supporters financially and politically. As a result, the court will be unable to investigate many crimes. Therefore, the outcome will be counterproductive as a move to empower the court will only weaken it.
In the same vein, for universal jurisdiction to work, there needs to be cooperation of non-parties. In the present climate, even state parties are sometimes unwilling or unable to cooperate with the court. It is evident that securing the cooperation of non-parties would be difficult and that the compromised general jurisdiction that is in place now is much preferable. The preference stems from the simple fact that Rome Statute obligates member states to cooperate with the ICC 19 Further, a referral from the UN Security Council would impose an obligation on states to cooperate. Otherwise, they are liable to face sanctions.
From the preceding discussion, it is evident that the universal jurisdiction of the ICC has some advantages, but it also has some inherent drawbacks that cannot be ignored. The present jurisdiction seems to have been the best compromise situation when the Rome Statute was concluded. However, with the benefit of experience spanning close to two decades, it may be time to rethink the court’s jurisdiction. Several commentators, including Cedric Ryngaert, think that Article 93(10) (a) of the Rome Statute would help come up with a compromise20
19 Article 86, Rome Statute of the International Criminal Court
20 Ryngaert, Cedric. "Universal Jurisdiction in an ICC Era: A Role to Play for EU Member States with the Support of the European Union’ (2006)." European Journal of Crime, Criminal Law and Criminal Justice 14: 46.
As a norm of customary international law, states may exercise universal jurisdiction over a national of any country regardless of the territory the alleged crime was undertaken. Article 93(10)(a) provides that the court may cooperate and aid a state party conducting an investigation into or trial regarding conduct that constitutes a crime within the court's jurisdiction. The court could encourage state parties to use their national courts to exercise universal jurisdiction over nationals of non-state parties who may be within the state party territory. In matters that the ICC is better placed to handle, the national courts will refer the matter to the ICC, having accepted that the ICC is the court of last resort in international criminal law. In this compromise situation, the concept of universal jurisdiction will lie with states. They will have the ability to commence prosecutions on their own with the support and cooperation of the ICC as far as investigations and witness protection are concerned.
b) Diplomacy and state cooperation
As mentioned earlier, state cooperation is crucial to ensure the effectiveness of the ICC. One can point to the situation in Sudan, where the state had refused to cooperate in the investigations into alleged war crimes perpetrated by the former leader, Omar al-Bashir, as an illustration of how ineffective the curt is rendered in the event of non-cooperation21. Consequently, for the court to be more effective and gain more credibility, it must engage in diplomacy missions to sensitize state parties of their obligations. This must be an ongoing engagement process to foster and maintain goodwill.
c) Independence and impartiality
The ICC has faced accusations of being biased and a tool for Western imperialism. African nations feel disproportionately targeted by the ICC prosecutor compared to other nations despite atrocities happening across the globe. It is high time that the ICC demonstrates that it can be independent and impartial by prosecuting atrocities wherever they may happen. It is not enough for justice to be done. It must also be seen to be done22 .
d) Sentencing
21 Sarkin, Jeremy Julian. "Reforming the International Criminal Court (ICC): Progress, Perils and Pitfalls Post the ICC Review Process." International and Comparative Law Review 21, no. 1 (2021): 7-42.
22 Mindua, Antoine Kesia-Mbe. "Universal Justice for a Globalized World." Comparative Law Review 23, no. 1 (2017): 9-47.
The ICC has been criticized for being too lenient in imposing sentences on convicted criminals. In the case of Prosecutor v Lubanga23 , the court sentenced Thomas Lubanga, a convicted Congolese warlord, to the minimum sentence prescribed by statute. Critics of the ICC sentencing policy have suggested aligning the sentences for convicted criminals to the sentences in place in their homes, allowing the court to justify their sentences24. In the present dispensation, judges have too broad discretion, and some sentences are not proportional to the crime25
e) Expanding the Court’s reach
At present, around 80 countries have not ratified the Rome Statute hence falling outside the express jurisdiction of the ICC. These states include some of the largest and most powerful nations, such as the USA, Russia, China, and India. This fact feeds the perception that the court is meant to punish weaker nations while leaving the larger nations to operate with impunity. Recent evidence has shown that the strong nations mentioned actively undermine the work of the ICC. The USA has blocked the arraignment of its nationals at the ICC for gross human rights violations committed within the territory of state parties. Russia, on its part, has threatened and initiated acts of aggression against its neighbour, Ukraine. It is expected that the conflict will occasion human rights violations and bring about a humanitarian crisis. Therefore, it is necessary that the court makes allies of such powerful countries and bring them into the state party fold. This would be a significant step in attaining the objectives of the Rome Statute, including ending global conflict and accountability for all aggressors.
Conclusion
In this paper, we have analysed the objectives of the ICC and discovered that the court has always had lofty objectives and ideals. It was always acknowledged that attaining the objectives would be a complicated process requiring the cooperation of multiple stakeholders, including states and the UN organs. Undoubtedly, the ICC has had some success, especially in creating awareness of Article 5 crimes and legal accountability mechanisms. Further, the court has allowed thousands of victims worldwide to access both restorative and retributive justice.
23 Case No. ICC-01/04-01/06
24 Stein, Ashley Joy. "Reforming the sentencing regime for the most serious crimes of concern: The International Criminal Court through the lens of the Lubanga trial." Brook. J. Int'l L. 39 (2014): 521.
25 Henham, Ralph. "Some issues for sentencing in the International Criminal Court." International & Comparative Law Quarterly 52, no. 1 (2003): 81-114.
At the same time, the court has not been as effective as some may have hoped it would be. Its low conviction rate is used to indicate that the court has been unable to justify its expenditure. There is a need for reform, hence the recommendations herein, to make the court more effective in pursuing its objectives.
The paper has considered whether it would be apt to grant the ICC universal jurisdiction to act proprio motu. The findings reveal that while this would give the ICC a broader scope and freer rein, it may also lead to many states withdrawing from the Rome Statute, citing a threat to sovereignty. As such, the concept of sovereignty is a double-edged sword that can make the ICC weaker. A compromise situation would be to allow the state parties to try international crimes under their inherent universal jurisdiction with the support of the ICC and following the doctrine of complementarity.
References
Primary sources
Rome Statute of the International Criminal Court
Prosecutor v Lubanga Case No. ICC-01/04-01/06
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<https://justiceinconflict.org/2012/07/09/the-icc-three-remarkable-achievements/>
Accessed 1st April 2022
Marlise Simons and David Goodman. Ex-Liberian Leader Gets 50 Years for War Crimes. (The New York Times. May 30, 2012)
<https://www.nytimes.com/2012/05/31/world/africa/charles-taylor-sentenced-to-50years-for-war-crimes.html > accessed on 31st March 2022
Mindua, Antoine Kesia-Mbe. "Universal Justice for a Globalized World." Comparative Law Review 23, no. 1 (2017): 9-47.
Report of the Secretary-General, 23 August 2004, S/2004/616, para. 49
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Song, S. "Past achievements and future challenges of the ICC." (2018).
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Stein, Ashley Joy. "Reforming the sentencing regime for the most serious crimes of concern: The International Criminal Court through the lens of the Lubanga trial." Brook. J. Int'l L. 39 (2014): 521.
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Scheffer, David J. "Staying the course with the International Criminal Court." Cornell Int'l LJ 35 (2001): 47.
Henham, Ralph. "Some issues for sentencing in the International Criminal Court." International & Comparative Law Quarterly 52, no. 1 (2003): 81-114.
Damaška, Mirjan. "The International Criminal Court between aspiration and achievement." UCLA Journal of International Law and Foreign Affairs (2009): 19-35.
Werle, Gerhard, Lovell Fernandez, and Moritz Vormbaum, eds. Africa and the international criminal court. Vol. 1. Springer, 2014.
Van den Wyngaert, Christine. "Victims before International Criminal Courts: Some views and concerns of an ICC trial judge." Case W. Res. J. Int'l L. 44 (2011): 475.
