The Rome Statute of the International Criminal Court: A Historic Milestone in International Law

Introduction

The Rome Statute of the International Criminal Court 1998 ('Rome Statute') is a multilateral treaty, under which the International Criminal Court (ICC) was established when it came into force in 2002. In many ways, this was a long awaited and historic moment in international law history because the establishment of the ICC is an epoch-making event as this is the first permanent international court that has the jurisdiction to prosecute as criminals, individuals who have committed gross violations of human rights or individuals who are responsible for violations of the international humanitarian law.

The jurisdiction of the ICC is provided by the Rome Statute in Part 2 of the Statute. ICC has the jurisdiction to in case of commission of any of the four specific crimes, which are, genocide, War crimes, crimes against humanity, and crime of aggression. The Rome statute defines all of these offences, barring the crime of aggression.

The ICC has been criticised by many writers and commentators. The most common areas of criticisms against the ICC are: ICC’s alleged bias against Africa as demonstrated by the number of cases in the ICC that have come from crimes committed in Africa; ICC’s lack of democratic legitimacy; and ICC’s lack of power to apprehend those it indicts and wants to prosecute. The four articles chosen for this literature review reflect on these criticisms.

Rowland JV Cole, ‘Africa's Relationship with the International Criminal Court:
More Political Than Legal’, (2013) 14 Melb. J. Int. L 670-698

Rowland examines the dynamics between Africa and ICC. Such question for examination arises because of the allegations sometimes made (primarily by the African Union), against the ICC that it is biased against Africa. Rowland explores the reasons why such allegations are made in the first place, and whether these allegations are justified. In the view of Rowland, the allegations are not legally viable. However, he also suggests that the allegations must be addressed not only on legal grounds but also on political grounds. The article is very useful in creating an understanding about Africa’s role in the formation of the ICC. This creates a useful and interesting background in understanding Africa’s initial

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1. The Rome Statute of the International Criminal Court 1998, accessed 13 February 2017 < http://legal.un.org/icc/statute/romefra.htm>
2. Ibid, Part 2, Article 5
3. Ibid, Part 2, Article 5(1).

dynamics with ICC, which helps in assessing the areas that led to disappointment with the ICC’s functioning once it came into existence and the allegations of bias by the ICC against Africa.

Rowland outlines the various steps that were taken by African nations in support of bringing the Rome Statute into existence, including: the 1997 Southern African Development Community (SADC) meet; the Dakar Declaration for Establishment of the International Criminal Court 1998; and the 2000 OAU 36th ordinary session, which saw the Assembly of Heads of State and Government undertake to cooperate with international institutions and courts set up for the prosecution of crimes against humanity. The drafting of the Rome Statute saw participation by 47 African states and the African civil society was also actively involved in building a momentum for the establishment of the ICC. Rowland identifies the biggest source of displeasure for Africans against the ICC to be “the fact that it has been Afro-focused. Only Africans are wanted for prosecution or have been indicted before the Court.” This viewpoint has been put forth in a number of articles and writings. The second area of discontent for the Africans is the perceived interference by the ICC in the ongoing peace processes by indicting major players in the processes. The warrant for Charles Taylor’s arrest by the Special Court of Sierra Leone and Al Bashir’s indictment are cited as two recent examples of ICC indicting leaders who are involved in the peace process or transitional justice.

Rowland argues that legally speaking it cannot be said that the ICC shows a bias against Africa. He supports this argument by showing how the ICC process involves a layered approach for the admissibility of cases and that this approach is followed in all the cases that are referred to the ICC. Rather, he says that the argument that ICC shows a bias against Africa is based on political and regional grounds.

Charles Chernor Jalloh, ‘Regionalizing International Criminal Law?’, (2009) 9 International Criminal Law Review 445-499

This article too examines the similar theme of interrelationship between the ICC and the

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4. JV Cole Rowland, ‘Africa's Relationship with the International Criminal Court:
More Political Than Legal’, (2013) 14 Melb. J. Int. L 670-698, 673.
5. Ibid.
6. Ibid.
7. Ibid.
8. Ibid, 676.
9. Chikeziri Sam Igwe, 'The ICC's Favourite Customer: Africa and International Criminal Law' (2008) 41 Comparative and International Law Journal of Southern Africa 294, 297.
10. Rowland, Supra note 3.

African Union as done in the article considered earlier. However, this article provides a point of departure, in that instead of focusing solely on the areas of grievances for the African states against the ICC, this article focusses on arguing or making a case for both the ICC as the arbiter of criminal justice and the African Union as a representative of the African people whose criticisms against the ICC should be considered seriously. Jalloh argues that ICC and the African nations both are in a position of gain by their mutual inter-relationships.

Jalloh contends that the early management of crisis situations that threaten peace and security within Africa is to the advantage of the region. He asserts that the African Union has also shown a greater need for mechanisms that are able to provide accountability of those responsible for grave crimes against humanity. He asserts that African region needs the support of UN and other international institutions because these “appear to be part of an impressive ready-made international post conflict toolkit”. Jalloh also makes a political statement where he asserts the utility of the ICC to Africa because the ICC also has the jurisdiction to prosecute crime of aggression and within Africa aggression from other African states or rebel groups has become a major problem.

Marlies Glasius, ‘Do International Criminal Courts Require Democratic Legitimacy?’, (2012) 23 EJIL, 43–66

In this article, Glasius considers theories on criminal justice in order to ascertain whether the claims that the international criminal court must have democratic legitimacy are justified. The article takes note of and explores the criticism of the ICC involving the victims of crimes and the local populations that are affected by the crimes. This critique emanates from the fact that generally victims are not consulted as to whether they accept the prosecution of the crimes by the international criminal courts. The two principal questions asked by the author are related to: (a) the democratic basis for the establishment of the courts and tribunals under ICC; and (b) democratic functioning of the

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11. Charles Chernor Jalloh, ‘Regionalizing International Criminal Law?’, (2009) 9 International Criminal Law Review 445-499,
12. Rowland, Supra note 3.
13. Jalloh, Supra note 10, 451.
14. Ibid, 456.
15. Ibid, 460.
16. Ibid, 473.
17. Marlies Glasius, ‘Do International Criminal Courts Require Democratic Legitimacy?’, (2012) 23 EJIL, 43–66.

courts.¹⁸

First, the author presents evidence that none of the international criminal courts, in Yugoslavia, Lebanon, Rwanda or Sierra Leone, are based on democratic consent, even though some of these tribunals were requested by the states and were established by the UN Security Council.

Second, the author writes that the ICC itself has responded to the criticism against it that it lacks democratic legitimacy, leading it to devise ‘outreach strategies’ which are aimed at reaching out to the local populace, such as the ICC’s Strategic Plan for Outreach, which includes two-way communication between the courts and the local populace and ‘giving voice’. However, Glasius is critical of these strategies because even if the court is made aware of what the people expect from the court, that understanding cannot be used by the court to change its process because the process of the court has to remain neutral.

Glasius explores the theories of Durkheim (penal law is the result of collective consciousness), Selznick and Nonet (penal law coercively implied by those in power), Weber (collective punishment only in case whole community being injured), Glasius argues that collective consciousness at the level of the entire international community is not possible to achieve for the purpose of ICC’s democratic legitimacy.

Glasius concludes that the readings of the classical and contemporary theories on criminal justice do not merit the criticism against ICC that it lacks democratic legitimacy because such legitimacy is not really required by criminal courts.

Michael J. Gilligan, ‘Is Enforcement Necessary for Effectiveness? A Model of the International Criminal Regime’, (2006) 60 International Organization 935-967

This article explores the question of effectiveness of ICC which is challenged by the critics on the ground that the ICC does not have the power to apprehend those it indicts or wants to prosecute. Due to the lack of such institutional authority, the critics say that the ICC can be said to be ineffective.

18. Ibid, 47.
19. Ibid, 48-49.
20. Malies Glasius, ‘What is Global Justice and Who Decides? Civil Society and Victim Responses to the International Criminal Court’s First Investigations’, (2009) 31 Human Rts Q 510.
21. Michael J. Gilligan, ‘Is Enforcement Necessary for Effectiveness? A Model of the International Criminal Regime’, (2006) 60 International Organization 935-967.

Gilligan argues that such criticism is misplaced. The principal argument that is made by him is that the ICC even if unable to arrest leaders, may be able to create a deterrence against commission of atrocities. This would happen if the potential asylum-granting states do not give such asylum to perpetrators who may be deposed or who may surrender to the ICC in future.



The author uses the game-theoretic model to demonstrate how the effectiveness of ICC does not lie with the ICC itself, but with member states who would have the benefit of a higher payoff for not giving refuge to perpetrators of crimes under the Rome Statute. The model shows that despite non-apprehension, the perpetrators themselves will not last long in power.

Word Count: 1491

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Bibliography

Cole RJV, ‘Africa's Relationship with the International Criminal Court:
More Political Than Legal’, (2013) 14 Melb. J. Int. L 670-698

Gilligan MJ, ‘Is Enforcement Necessary for Effectiveness? A Model of the International Criminal Regime’, (2006) 60 International Organization 935-96

Glasius M, ‘What is Global Justice and Who Decides? Civil Society and Victim Responses to the International Criminal Court’s First Investigations’, (2009) 31 Human Rts Q 510.

Glasius M, ‘Do International Criminal Courts Require Democratic Legitimacy?’, (2012) 23 EJIL, 43–66

Igwe CH, 'The ICC's Favourite Customer: Africa and International Criminal Law' (2008) 41 Comparative and International Law Journal of Southern Africa 294

Jalloh CC, ‘Regionalizing International Criminal Law?’, (2009) 9 International Criminal Law Review 445-499

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22. Ibid.