Towards Reform

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.