International Criminal Justice:
For experts on human rights it is clear that the protection of individuals from violations of human rights and humanitarian law requires appropriate mechanisms to enforce the law. For decades, international law lacked sufficient mechanisms to hold individuals accountable for the most serious international crimes. Naturally, like any other crimes, punishment for grave breaches of the Geneva Conventions or for violations of the Genocide Convention or the customary law of war crimes and crimes against humanity depended primarily on national courts.
The problem is that when the most serious crimes were committed the national courts were least willing to act because of involvement of agents of the State in the commission of crimes. If you look at the past to the best-known historical events of that kind-Nazi Germany, Rwanda, the former Yugoslavia, Cambodia-the governments themselves or their agents were involved in the commission of those crimes. And so the failures of national courts in these contexts protected perpetrators with impunity. To prevent impunity in those situations, it is necessary to enforce international justice when national systems are unwilling or unable to act.
The first actions taken by the international community were to create ad hoc tribunals in such situations. The first tribunals were, of course, those of Nuremberg and Tokyo after World War II. Then, more recently, the United Nations set up tribunals for Rwanda and the former Yugoslavia. These tribunals were extremely important. They were pioneers. They showed that international justice could work, but they all possessed several limitations.
One is that only a few States participated in their creation. The Nuremberg and Tokyo tribunals were set up by the victorious Allied powers after World War II, and the Rwanda and Yugoslavia tribunals were created by the Security Council. There are also other limitations. Ad hoc tribunals are limited to specific geographic locations.
Their ability to punish perpetrators of international crimes and to deter future perpetrators has been limited. Eventually, a permanent truly international court was necessary to respond to the most serious international crimes and to overcome the limitations of the ad hoc tribunals.
Creation of ICC
The absolute independence of judges and full guarantees of fair trial are the main reasons of the establishment of International Judicial bodies. Thus, as a result the ICC was created by the Rome Statute, which came into force on 1 July 2002. The Court has established itself in The Hague, Netherlands, but its proceedings may take place anywhere. It is intended exercise its jurisdiction when national courts are unwilling or unable to investigate or prosecute such crimes. The purpose of ICC is to punish the offenders of wicked crimes and deter others to refrain from such crimes, as there is a fear of punishment. The ICC emerged from the treaty making process, genuinely created tribunal to punish wicked offenders untainted by politics. UNSC can refer a situation to ICC for consideration but can’t force it to issue an arrest warrant although it could ask to investigate.
The Rome Statute established four core international crimes: genocide, crimes against humanity, war crimes and the crime of aggression. (Murder; extermination; torture; rape; political, racial, or religious persecution and other inhumane acts reach the threshold of crimes against humanity only if they are part of a widespread or systematic practice). (Article 2 of this convention defines genocide as “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: killing members of the group; causing serious bodily or mental harm to members of the group). (War crimes include “murder, the ill-treatment or deportation of civilian residents of an occupied territory to slave labor camps,” “the murder or ill-treatment of prisoners of war,” “the killing of hostages,” “the wanton destruction of cities, towns and villages, and any devastation not justified by military necessity).
Under the Rome Statute, the ICC can only investigate and prosecute the four core international crimes in situations where states are “unable” or “unwilling” to do so themselves. The court has jurisdiction over crimes only if they are committed in the territory of a state party or if they are committed by a national of a state party; an exception to this rule is that the ICC may also have jurisdiction over crimes if its jurisdiction is authorized by the United Nations Security Council.
As of May 2013, 122 states are states parties to the Statute of the Court. A further 31 countries including Russia, have signed but not ratified the Rome Statute. Israel, Sudan and the United States—have informed the UN Secretary General that they no longer intend to become states parties.
The Court has four mechanisms which grant it jurisdiction:
- If the accused is a national of a State party to the Rome Statute
- If the alleged crime took place on the territory of a State Party
- If a situation is referred to the Court by the United Nations Security Council.
- If a State not party to the Statute ‘accepts’ the Court’s jurisdiction.
The Court’s jurisdiction is also limited temporally. It has jurisdiction only over events since its Statute entered into force on July 1, 2002. No crime committed before that time can be dealt with by the ICC.
The Statute also provides that the Court has jurisdiction over the crime of aggression, but the Court will not exercise this jurisdiction until both a definition of aggression, and conditions for the exercise of jurisdiction are agreed upon.
The ICC is a court of last resort and not to replacement of national courts. It is intended to act only when national courts are unwilling or unable to carry out genuine proceedings. This is known as the principle of complementarity. Under this principle, a case will be inadmissible if it is being or has been investigated or prosecuted by a State with jurisdiction.
Challenges faced by ICC
Lack of Police Force
The Court lacks executive powers and a police force. As a result, it is completely dependent on State Parties. State Parties have an obligation to cooperate with the Court. Under Article 86,“States shall in accordance with the provisions of the Statute, cooperate fully with the provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.”
Financial limitations of the court
It has been documented that since its inception, the Court had cost the international community approximately 900 million dollars. Is the 900 million dollars justified? Currently, there are currently 18 cases and 8 Situations before the Court. It is true that there have been long court proceedings and delays which has contributed to the high operation costs.
Difficulty in obtaining Evidence
The Court also faces difficulty in obtaining evidence required in its court proceedings. The investigations carried out by the Court to gather relevant evidence are often complex and conducted in dangerous, remote and at times insecure areas. Now, the court has stated considering to conduct proceedings in different countries where the crimes has been committed in order to secure the witness protection as well as reducing the burden of the victims in travelling to Hague.
Misconception that the Court is Biased
There are currently seven situations before the Court and all of them are in Africa States. This has led to criticism that the Court is only targeting
African States yet the crimes that fall under the Court’s jurisdiction are not limited to Africa.
The Court is currently understaffed and cannot effectively deal with the caseload that it has nor the cases that it wants to add to its caseload.
Perception that Court is a Political Tool for the United Nations Security Council
Under Chapter VII, the United Nations Security Council has discretionary powers to determine the existence of a threat to peace and decide what measures to take without the use of force in order to implement its decisions and making referrals to the ICC. Pursuant to Chapter VII, the U.N. Security Council referred both the Situation in Sudan and Libya to the Court through. However, the referrals created a problem for the Court. First the Court was perceived as a political tool for the U.N. Security Council to refer States that it did not like to the Court.
Long Court Proceedings
Both at the pre-trial and trial stages, interlocutory appeals are permitted which prolong the court proceedings resulting in delays and increasing operational costs.
Non-Cooperation in arrest of high officials
Under the Rome Statute, there is no immunity for the high officials of like presidents etc. One of the biggest challenges for ICC at present is the arrest of those high ups of different countries because of non-cooperation by different countries. Like, president BASHIR, against whom arrest warrants have been issued is still in power and travel to different countries under a promise of not being arrested. He cancelled his trips to various countries that have declared that they will arrest him.
Universal Ratification of the Rome Statute
As of May 21, 2013, there are 122 countries that have ratified the Rome Statute. If the Rome statute is ratified by all the member states of UN, ICC could serve its purpose more effectively. A wide membership will also ensure cooperation of those member States with the Court in the arrest and surrender of alleged perpetrators. It should be noted that seeking cooperation from non-member States is difficult for the Court because they do not have an obligation to cooperate with the Court unless the Court enters into an agreement with it.
Getting the African Union on board
Given that most of the situations are in Africa, the cooperation of the African Union is vital to ensure the apprehension and surrender of the perpetrators of crimes that fall within the Court’s jurisdiction. The hostility towards the Court reached new heights in 2009 when the Court issued arrest warrants for Al-Bashir; The African Union was quick to note that all the cases are in Africa. Rightly, so, because the continent is one of the few with many conflicts. The AU as a result of mistrust in the Court decided to establish the African Court of Justice of Human Rights, which will have jurisdiction over crimes committed on the African Continent.
Leveraging on the Support from INTERPOL
In 2005, the International Criminal Court signed a cooperation agreement with INTERPOL. Under Article 5 of the Cooperation Agreement, the ICC-Office of the Prosecutor may seek “seek the expertise of the Interpol General Secretariat’s specialized staff, in particular in matters related to the search for fugitives.” This is one agreement that the ICC can capitalize on to ensure the arrest of fugitives. Currently, there are nine persons whose arrest warrants are outstanding and INTERPOL is a valuable resource for the Court in arresting these persons.