International Criminal Court as a Court of Law

Introduction

This paper will explore the nature of the International Criminal Court as a court of law. The paper will proceed to examine the veracity of the above statement by advancing arguments to show that the Court is not in a strict sense a court of law as ought to be, but still performs the normal functions of a valid court as currently constituted. In doing so, the discussions will revolve around ICC’s legacies since inception, criticisms against the court role and decisions including the political aspects, relation to rule of law and the future of the court. The International Criminal Court (ICC) is based in The Hague, Netherlands. It is established by the Rome Statute which was adopted by the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court on 17 July 1998. Membership of the ICC is pegged on state ratification of the Rome Statute and to that extent, 122 countries. The Rome Statute provides that the court can sit anywhere it deems desirable and it can set its offices in places where it is undertaking investigations. The statute came in to force in July 2002 although the court began its operations in 2003. Judges of the ICC are elected from amongst the major legal systems and regions. This court is different from the International Court of Justice, also based in The Hague, which is mandated with resolving disputes between states. Before the ICC, there were ad hoc tribunals established to deal with crimes against humanity committed in Rwanda and the former Yugoslavia. As a court of last resort for the prosecution of severe international crimes, it has the jurisdiction to hear and determine serious international crimes committed by individuals. Under the principle of complementarity, the ICC can investigate and if possible prosecute and try individuals where the relevant state is unwilling to act. Therefore, despite there being existing national criminal justice system, the ICC does not usurp their powers but simply complements. The rationale under this concept is that just because a state does not

wish to act on serious crimes, there is an aspect of recourse for the victims by virtue of the Rome Statute. States are required by the Additional Protocol I to have mechanisms and prosecute perpetrators of war crimes. Therefore states must adhere to their international customary and international humanitarian law obligations by exhausting the local mechanisms of dealing with crimes against humanity. Consequently the Rome Statute does not in any way release states from obligations to prosecute perpetrators under their national laws or extraditing them to other jurisdictions. The ICC in this context operates more like a backup court in case national mechanism cannot be utilized. William Schabas (2010) argues that this complementary nature of the ICC weakens its position as an international court. In his view the Court plays second fiddle to the national jurisdictions. The Rome Statute specifically states that ‘the international Criminal Court established under this statute shall be complementary to national criminal jurisdictions’. This approach has been criticized for placing ICC in a secondary position in light of the discretion given to states to exhaust national prosecutorial powers. The complementarity principle substantially departs from the approach use in the establishment of international criminal tribunals by the United Nations Security Council that were charge with prosecuting cases in Rwanda and the former Yugoslavia. Both the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the former Yugoslavia (ICTY) applied the principle of primary primacy. As a result they were vested with powers so that the tribunal proceedings had primacy of national courts in Rwanda and former Yugoslavia. In support of the complementarity approach, scholars have argued that it was necessary for the balance between the concern for state sovereignty and the creation of an international court. Hence, it would encourage countries to prosecute violation of

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international humanitarian law by themselves. In fact cases are inadmissible to the ICC where: a state with jurisdiction is prosecuting or investigating the case; has completed investigations and formed a decision to prosecute; has tried the matter has been determined with finality or case is not of sufficient gravity. It means that a country can escape the jurisdiction of the ICC by conducting or appearing to conduct investigations and prosecution in good faith as per article 17. Therefore, it is a useful tool for member states to maintain control of cases and preclude them from the jurisdiction of the ICC. Secondary status weakness or strength? It is very disturbing that a court would be established at the international level only to be denied jurisdiction on cases by the same countries. This defeats the whole purpose of the Rome statute. In light of the above, one can rightly conclude that the ad hoc tribunals like the ICTR and ICTY were stronger than the ICC as presently established. This conclusion is informed by the fact that these tribunals had primacy over national courts. Member states have in many instances went ahead to blatantly deny the jurisdiction of the ICC. In the case of Prosecutor v Katanga and Ngudjolo, the accused challenged the jurisdiction of the court on the basis that DRC was unwilling to prosecute the case. As a result this presents challenges to the ICC’s Prosecutor when she has to conduct investigation and obtain evidence. Apart from the court being perceived as weak, the complementarity principle presents an implementation concern. Although in an indirect way, it creates conflicts between the ICC and the national jurisdictions on matters of admissibility. For instance a state will argue that a case brought before the ICC is premature or done procedurally hence it will object to the admissibility by indicating that is well capable and is handling the matter. Often, these matters are dealt with under Article 19(2) where the state is allowed to challenge the admissibility of the case in the ICC. In Prosecutor v Muthaura and Prosecutor v Ruto, Kenyan government challenged the admissibility of the case at the

ICC. Even though, the cases proceeded to hearing, there was already tensions arising from the ICC deciding against the challenges on admissibility. Libya has also challenged the admissibility of cases before the ICC. In the case of Prosecutor v Gaddafi and Al-Senussi, the ICC allowed one challenge and rejected another and as result one accused person was found to be within jurisdiction of Libya. The upshot of these challenges on the admissibility of cases at ICC is that where states may feel the interpretation is either incorrect or biased. As a result their perception of the court will be affected and in the end the court loses credibility in the eyes of not only the concerned state but also other member states. Again this was never an issue with ICTY or ICTR which supports the notion that they were more powerful and had strong legitimacy. Notwithstanding the above weaknesses, Carter Linda is of the opinion that the complementarity concept should be treated as strongpoint for the ICC. In her text, she proffers that the concept confers national jurisdictions primary primacy over the ICC. Thus, the principle promote sovereignty of its member states thereby reducing instances of conflict. The fact that national jurisdictions have been granted more power to deal with international humanitarian law violations, is a recipe for increased support for the ICC as opposed to ICTR and ICTY. Though, the non-membership of US, China, India and Russia still presents a challenge for the support of ICC. Additionally, complementarity will lead to increased national capacity to investigate and prosecute international crimes without unnecessary referrals to the ICC. In this regard, the ICTY, ICTR and Nuremberg would probably have done more by holding more people responsible than the numbers achieved. That is, if there were established national capacity to try war crimes, genocide and crimes against humanity. For instance Uganda has established an international crimes Division in their High Court. There are also cases that have been referred by international courts to national jurisdictions for international crimes trial.

Observers have put forth the narrative that ICC targets African countries. The OTP has been accuse of using discretionary prosecutorial powers to look the other way while targeting African countries. It is their argument that countries like United States through George Bush committed crimes against humanity in Vietnam, Iraq and Afghanistan but no action has ever been preferred against their leaders. Some radical observers have termed the intervention of ICC as a neocolonialist institution propagating a western agenda. It is argued that ICC commands little or no power beyond Africa and is not respected. The fact that US, Russia and China are not members of the Rome Statute validates the above points to a certain extent. However, victims of the cruel acts the perpetrators have supported the court and see it as the only way of holding rogue military and political leaders accountable. Supporters of ICC argue that, without it, mass crimes against humanity would be rampant and unabated to the detriment of the powerless. This argument sits well with the principle of ICC being a court of last resort. Again, countries that have complained of being targeted have never indicated that they ratified the statute under coercion or duress. These countries voluntarily adopted the Rome Statute with intention to hold individuals accountable for crimes against humanity. Malaysia has recently indirectly cited of ICC’s jurisdiction as being an affront to their sovereignty and the reason for their withdrawal from the statute. Hence, they have shown interest in withdrawing from the Rome statute. Nevertheless, such countries are free to withdraw from the statute under article 127. Enforcement of international criminal law has been full of controversy and politics. This has been manifest especially in enforcement of arrest warrants from ICC. The international court does not have the luxury of an army or police to effect its summons and order, instead it relies on the good will and obligation of signatory states. Ironically, the AU had in 2016 defied the ICC and declined to effect an arrest warrant citing conflict with obligations under the AU Charter. States have in some cases refused to

cooperate with the ICC in bringing accused persons within the jurisdiction of the court and concerned countries have gone as far as rejecting Resolutions passed by UN Security Council. Without enforcement, the orders and decisions of ICC are just mere papers. Articles 86-87 provides that member states must cooperate fully with the court in investigation and prosecution of international crimes within the ICC’s jurisdiction as per Rome Statute. The Rome statute is not very clear on the consequences of a state party failing to corporate with its orders. Instead, it simply states that the matter be referred to the court or UN Security Council. Simply, put ICC can do nothing against any state party that refuses for instance to effect an arrest warrant on a person within its borders. Again member states have immunity or excusal from cooperating under the Rome Statute where there is an international obligation or contract that conflicts with obligation to ICC. The concept of the rule of law as long espoused by Dicey can be summarized as the assumption that no one is above the law. Contrastingly, the rule of men where administration of justice laws and governance is determined by interests of a single person or a group of people. For one law must apply to everyone regardless of whether it’s an individual of state organs enforcing the law. At least 124 countries are members of the ICC and dozens of others being non-members. Is it right to assume that the international humanitarian law does not apply to non-members? Such a conclusion would be slightly flawed because there are countries not party to the Rome statute but are members of the UN Charter. However, focusing solely on the Rome Statute, it can be said that the law therein does not apply to non-members hence fails the test of equal application. Laws must not be secret or arbitrary for a rule of law system to function. Provisions of the Rome statute can therefore be considered to be available to the general public and

accessible to state and their citizens. They are stable and are never changed at the whim of one or more states. In case of amendments, parties are usually represented and the laws are understandable. International humanitarian law is actually aimed at enhancing fairness in all parts of the world through protection of rights and liberties of all persons. The laws must not only be fair but also be enforced fairly. Under international law, the ICC is required to investigate and prosecute cases in a fair way. However, the ICC is dependent on member countries to enforce international criminal law since it does not have an enforcement like national governments have the police. In deciding whom to prosecute, the OTP has been accused of selective prosecution especially by African countries. The role of US in the ICC has raised pertinent issues considering that it has not ratified the Rome Statute on the bases that is contrary to their constitution, inconsistent with American democracy, national security foreign policy. In fact in 2018, White House National Security adviser John Bolton condemned the ICC for considering US violations of human rights. As a member of the UN Security Council, such actions by US undermines the ICC and adds fuel to the idea of a puppet court used by Western countries for self-interest. Acquittals from the ICC like in the two Kenyan cases have further fueled the politicization of the role of ICC. It has fired up the view that indeed ICC is a tool of imperialists in pursuit of customized justice against Africans regardless of the consequences and the victim’s wishes. The AU has gone as far as urging members not to cooperate with the ICC in apprehending heads of states with outstanding arrest warrants like the former President of Sudan. In doing so, the African body has exploited the wordings of Article 98 of the Rome Statute to justify refusal to cooperate.

Though, that is actually not the right interpretation because members of the United Nations have an obligated to cooperate with the Security Council under article 25. And this obligation has long been clarified in the case of Libyan Arab Jamahiriya v. United States of America at the ICJ. As a consequence countries like Gambia, South Africa and Burundi submitted written notifications of withdrawal from the Rome Statute in 2016. The Philippines also sought to withdraw from the ICC in 2018 sparking a court battle in the case of Senator Francis Pangilinan, et al. vs Alan Peter Cayetano et al. & PCICC et al. vs Salvador Madialdea et al. Malaysia has also backtracked on its intention to ratify the Rome Statute. There is concern as to the future of the ICC considering the prospective and current exodus of countries. Will the ICC remain a regional court dealing only with cases from a handful countries? Does it mean that countries will no longer be accountable for violations of crimes against humanity? As at 2018, 123 countries had ratified the Rome Statute. For some this is a milestone in the support for the ICC and for others, it’s a failure to convince the remaining countries to join the bandwagon of international criminal justice. There is an existing large body of jurisprudence from previous cases. The court has made convictions. In 2012, Lubanga was the first person to be convicted and sentenced by the ICC. For the first time in 2016, ICC tried an Islamic militant for the Destruction of cultural heritage as a war crime. Laurent Gbagbo was in 2019 acquitted of all charges of crime against humanity by the ICC. All the above cases show in one way or the other, how much the court has progressed considering that it has only been around since 2003. The ICC has succeeded in creating deterrence against violations of international human rights and this can already be seen by the manner in which some countries are either

afraid of joining the ICC or are planning to withdraw from it. For instance Philippines President, Rodrigo Duterte undertook to withdraw from the ICC when it announced that it would investigate human rights violations in the fight against drugs. Although the deterrence has negative aspects in that some countries evading ICC’s jurisdiction, it shows the powerful nature of law when implemented. In a span of 16 years, the ICC has achieved several milestones in the international criminal justice system. Today, crimes against humanity, war crimes and genocide are prosecuted by a permanent and independent international body. The role of victims in ICC proceedings has been cemented even in instances where they are necessarily witnesses. While the future looks bright for ICC, there is a cloud of uncertainty in the horizon, challenging and inhibiting its successes. Issues like non-cooperation of state parties and the situation of released and acquitted persons unwilling to return to their countries. Despite all the drawbacks, the role of ICC in the international criminal justice system remains indispensable. The global fight against impunity should continue into the future even as the rule of law continues to be a panacea to violation of international human rights.

Bibliography
List of Cases

Democratic Alliance v Minister of International Relations and Cooperation & 10 Others Case No: 83145/2016 Libyan Arab Jamahiriya v. United States of America at the ICJ 1992 The Prosecutor v. Omar Hassan Ahmad Al Bashir ICC-02/05-01/09-1 The Prosecutor v. Ahmad Al Faqi Al Mahdi ICC-01/12-01/15 The Prosecutor V. Thomas Lubanga Dyilo ICC-01/04-01/06 Prosecutor v. Katanga & Ngudjolo, Case No. ICC-01/04-01/07 Prosecutor v. Ruto et al., Case No. ICC-01/09- The Prosecutor v. Laurent Gbagbo and Charles Blé Goudé ICC-02/11-01/15 Prosecutor v. Muthuara et al., Case No. ICC-01/09-02/11

List of Statutes

African Charter on Human and peoples’ Rights The 1949 Geneva Conventions The Rome Statute of the International Criminal Court of 1998 United Nations Charter 1945

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Journals

Harv. Int’l L.J. (2012) 85, 126-27 Barnes GP, The International Criminal Court's Ineffective Enforcement Mechanisms: The Indictment of President Omar Al Bashir. (Fordham Int'l LJ. 2010)34, 1584. Boschiero N, The ICC judicial finding on non-cooperation against the DRC and no immunity for Al-Bashir based on UNSC resolution 1593. (Journal of International Criminal Justice. 2015)1,625-53. Carter LE, The future of the international criminal court: complementarity as a strength or a weakness. (Wash. U. Global Stud. L. Rev. 2013)12,451.

  • Clara J. Int’l L. 115, 120–23 (2010) commenting on the relationship between the sovereignty of
  • Dicker R, The ICC at 10. (Wash. U. Global Stud. L. Rev. 2013)12,539.
  • Jalloh C.C, Africa and the International Criminal Court: Collision Course or Cooperation?’ (North Carolina Central Law Review, 2012)34, p.203.
  • Jann K. K, Complementarity In The Rome Statute And National Criminal Jurisdictions (2008) 95-97 Keppler E, Managing setbacks for the international criminal court in Africa. (Journal of African Law 2012)1-14.
  • Kevin J.H, A Sentence-Based Theory of Complementarity, 53 Lutz O, Peace and Justice, or Neither? The Repercussions of the al-Bashir Case for International Criminal Justice in Africa and Beyond, (Journal of International Criminal Justice, 2010) 8, (2)345–364, https://doi.org/10.1093/jicj/mqq018
  • Materu S.F, A Strained Relationship: Reflections on the African Union’s Stand Towards the International Criminal Court from the Kenyan Experience. In: Werle G., Fernandez L., Vormbaum M. (eds) Africa and the International Criminal Court. (International Criminal Justice Series, T.M.C. Asser Press, The Hague 2014)1 Michael A. N, The Complementarity Conundrum: Are we Watching Evolution or Evisceration?, 8 Santa
  • Powell C, International Criminal Court Plays Important Role in Global Rule of Law. (National Council on Foreign Relations, 2018) Schabas W, The International Criminal Court: A Commentary on The Rome Statute (2010) 50-53
  • States and the role of complementarity in obtaining states’ agreement to the ICC); William W.B, Proactive Complementarity: The International Criminal Court and National Courts in the Rome System of International Justice, (HARV. INT’L L.J. 2008)49

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