International Criminal Court

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10INTERNATIONAL CRIMINAL COURT

International Criminal Court

International Criminal Court

Introduction

In 2002, about sixteen countries approved the treaty that enabled the creation of International Criminal Court (Ellis, 2002). The International Criminal Court is meant to prosecute any person who is accused of crimes involving genocide, crimes against humanity as well as war crimes. In other words, the ICC is an extension of war crime tribunals that was established to prosecute Japanese and Nazis who committed atrocities during the World War II. The supporters of International Criminal Court believe that political leaders will abstain from involving in atrocities (Ellis, 2002). Nevertheless, not everyone is convinced about the ability of International Criminal Court in solving cases of atrocities. The number one opponents of ICC are the United States. This paper will analyse the case study of International Criminal Court. Specifically, it will highlight the historical context of the case, the major actors in the ICC case and the current state of affairs of ICC. In addition, the report will also offer recommendation to address the challenges covered in the case study.

Context of the International Criminal Court

Political Context of ICC

The political context of ICC can be described by the case study of International Criminal Court involving Libya (Stahn, 2012). The ICC was involved in Libya’s Civil War in 2011 that resulted from a force against Muammar Gaddafi’s ruling. The prosecutor offered arrest warrants to Muammar Gaddafi, Al-Senussi and Saif Al-Islam who were accused of crimes against humanity (Stahn, 2012). The ICC was accused of its inability to uphold the admissibility of the case involving Al-Islam Gaddafi and the Libyan government was also accused of lack of cooperation and unwillingness to surrender the individual to trial (Whitson, 2012). Libyan government has difficulty accessing the location of al-Islam as an independent militant body is holding him (Whitson, 2012). The government is motivated to prove their capability to hold a fair local trail for al-Islam Gaddafi. However, the ICC argues that it has the power to uphold human rights in Lybia by taking the case of al-Islam due to its founding principles, its major actors and success it has had in the past.

Legal and Normative Framework

The legal framework of the International Criminal Court is the Rome Statute. The Rome Statute offers a legal framework in which the ICC is established. ICC has only authority over some crimes and has power over some individuals and nations (Whitson, 2012). When countries become a member of the Rome Statute, it acknowledges the power of the ICC over them. The ICC can exercise power if a country is a home of an individual accused of the conduct in the question (Mayerfeld, 2003). In addition, the court can exercise power over a conduct referred by the state party, but the country only makes referrals of a conduct when it appears to have been instituted in the jurisdiction of the ICC. Also, the International Criminal Court exercise jurisdiction over a state that is not a member of the Roman Statute but accepts the jurisdiction on its own accord (Mayerfeld, 2003). Finally, the court can exercise power over a crime committed has been referred to the prosecutor by the United State Charter body.

Historical Framework

As a result of the challenges facing international communities after the World War II, there was a need for justice of the affected communities and people accused of international crimes (Mayerfeld, 2003). After more than fifty years of debate, the Rome Statute was established in 1998 which developed International Criminal Court. International Criminal Court was established in 2002 to prosecute political leaders involved in atrocities such as crimes against humanity and war crimes (Ellis, 2002). ICC is termed as a permanent and independent entity with the responsibility of investigating and prosecuting individuals accused of crimes against humanity that are of international concern. International Criminal Court is founded upon a treaty created by 121 countries in 2012. According to the principle of complementarity, ICC is said to complement stead of replacing the available criminal justice system (Ellis, 2002). International Criminal Court often prosecutes individuals when the states are either unable or reluctant to investigate and prosecute.

Major Actors and Interests of ICC

The countries that have acknowledged the laws of the Roman Statute implemented in the ICC are termed as States Parties. The state parties are often represented in the Assembly of States Parties held once a year to discuss and establish the policies for administration of ICC (Akande, 2012). These countries have the legal responsibility of cooperating with the court when investigating or prosecuting crimes. Cooperation of the state parties is very fundamental since the court lacks a police force and thus relies on the states to arrest or surrender of accused individuals. Major actors of the ICC include governmental and non-governmental bodies and party states among others. One major player of the court is the United Nations Security Council (Ellis, 2002).

The fundamental role of the United Nations Security Council involves the maintenance of the international peace and security. In an event where this body receive information of a threat of peace and security, the secretary council sometimes investigates and mediate for peaceful settlement. Furthermore, if the threat leads to violence, they may decide to send United Nation peaceful forces or enforce military action. The United Nation Security Council has a huge influence over the ICC especially in the selection of judges. Another important actor of ICC is the United Nations (Fourth Report of the Prosecutor of the International Criminal Court, 2012). The ICC and the UN established an agreement involving the terms of their relationship. In the Negotiated Relationship agreement, the International Criminal Court is considered an independent body in a relationship with the UN body. The involvement of the United Nation in the ICC jurisdiction is to save costs and ensure efficiency and effectiveness (Akande, 2012).

Analysis of the Current State of Affairs of ICC

Success of the ICC

The ICC is a relatively new institution having been active since 2002. One success of the International Criminal Court is the clear and defined roles of different actors operating within the Roman Statute that are utilized to the court’s advantage especially the roles of judges and utilization of the appeals process (Rovine, 2001). The ICC decision making process utilizes the judges rather than the jury in deciding the ultimatum of the accused. This makes sure that the rights of people are handled by professionals. In addition, the appeal system in the court creates a surrounding that emphasizes on fairness and justice and protects people from defendants of the victims (Akande, 2012). Furthermore, in the ICC, an appeal is granted for acquittal and also for guilty verdict. This gives another chance for the prosecutor to submit further evidence against the accused that may change the verdict. In designing a system that enables the court to interpret international law, it identifies issues to be addressed for the court to succeed (Rovine, 2001).

Identifying the issues

There are some areas of concerns which affect the efficiency and effectiveness of the work of International Criminal Court. First, the judicial fortitude of vital procedural issues is still in existence and has great impact on the effectiveness of the ICC proceedings (Cassese, 2001). Several procedural legal issues are still unresolved due to their demand for time and resources. Filings and decisions in trial proceedings entailed victim participation, disclosure and admissibility of evidence. In the International Criminal Court, decisions have considered inconsistent due to lack of financial resources. For instance, a large percentage of judges in the court’s third case involving Jean-Pierre Gomba departed from the strategy used in the first and second cases (Rovine, 2001).

Several challenges negatively affecting the expeditious of the court proceedings are often structural due to the nature of the international criminal proceedings and the inimitability of the Rome Stature system (Rovine, 2001). Some challenges like the inability of the court’s judges to oblige a witness to personally testify may require changes to the ICC’s legal texts. Also, states take a huge part in ensuring the success of the International Criminal Court (Ellis, 2002). As a result of the multi-faceted nature of the ICC, the fact that the court relies on states and intermediaries to administer its orders and operates in a multi-cultural context, the failure of the court may be attributed to the failure of both the states and the intermediaries.

The efficiency of the ICC can be established taking into account role played by states in assisting fulfils the court’s core mandate (Rovine, 2001). One of the most challenging issues facing the International Criminal Court is the lack of cooperation by states in implementing unresolved arrest warrants or re-joining to appeals for judicial assistants. The main role of the states is to assist in information gathering which assist in seeding up fair and effective trials. However, over the years, this has not always been the case (Rovine, 2001). For instance, one case that showed the lack of cooperation between the states is that which involved Omar Al-Bashir.

In addition, despite the adequate work done by the ICC, the court is said to have failed many countries (Shirley, 2004). The ICC is said to have failed as a sustainable force in the effect of international criminal law. Chief prosecutor attitude and management is said to be non-condicive in ensuring fluidity in the operation of the court. Due to failure of some cases for instance the prosecution of Congolese Thomas Lubanga Dyilo which took more than 9 years, the court wasted a lot of time and resources (Fourth Report of the Prosecutor of the International Criminal Court, 2012). Since its inception, the ICC has only had one successful completed case. Another challenge of the ICC is the lack of participation by some members of the United Nation Security council. It is evident that China, Russia and the United States have not ratified the Rome Statute. This lack of participation is a barrier to the enforcement of the laws implemented by the court (Fourth Report of the Prosecutor of the International Criminal Court, 2012).

Recommendation for Future

As a result of the lack of cooperation and support of the party states in the operation of the ICC, there is a need for the development and implementation of an intensive strategy that will ensure there is maximization of the political power on the ICC’s behalf (Rovine, 2001). There is a need for collaboration among different state parties in order to offer a more consistent support for the operation and the work of the ICC in political fora. This eventually has the potential to boost the court’s credibility, legitimacy and respect. Many countries have said that the ICC has failed them in one way or another. This may be attributed to the nature of the court in investigating crimes around the countries with diverse cultures, languages and histories (Slaughter and Burke-White, 2006). This is why the court requires intermediaries. To solve the challenges of controversial intermediaries, the ICC should appoint a committed intermediaries facilitator who can interact with the intermediaries and ensure smooth running of their work (Slaughter and Burke-White, 2006). In addition, the court should adopt the Draft Guidelines that oversees the relationship between the ICC and the intermediaries.

Lack of cooperation by states in implementing unresolved arrest warrants or re-joining to appeals for judicial assistants can be resolved in a number of ways (Ellis, 2002). The state parties should adapt a local legislation that ensures free investigation and prosecution of the accused at the national level. In addition, the unwillingness of the state parties to surrender perpetrators can be addressed in relation to additional mechanisms involving either bilateral or multilateral negotiations (Slaughter and Burke-White, 2006). In addition, as a result of the questioned ability of the chief prosecutors, the court should review its prosecutorial strategy and involves of the prosecutors in issues regarding to investigations and prosecutions.

Conclusion

International Criminal Court is an independent body that is responsible for investigating and prosecuting people accused of committing crimes against humanity and war crimes. The court was established in 2002. The main actors of the ICC are the state parties, non-governmental bodies such as the United Nation and Roman Statute. The state parties are responsible of handing over individuals accused of crimes against humanity while the non-government bodies assist in saving cost and efficiency. Although the ICC has experienced a number of successes over the years, there are many challenges that have led to its inefficiency. For instance, there is a lack of states’ cooperation and lack of resources and time involving the prosecution process. To solve these problems, the ICC can review its prosecutorial strategy in issues regarding to investigations and prosecutions and additional mechanisms involving either bilateral or multilateral negotiations can be implemented.

References

Akande, D 2012, “The Effect of Security Council Resolutions and Domestic Proceedings on State Obligations to Cooperate with the ICC,” Journal of International Criminal Justice, 10(2), pp. 299–324. doi:10.1093/jicj/mqs019

Cassese, A 2001, International Law, Oxford, Oxford University Press.

Ellis, M 2002, “International Criminal Court and Its Implication for Domestic Law and National Capacity Building,” The Florida Journal of International Law, vol. 15, p. 215.

Fourth Report of the Prosecutor of the International Criminal Court 11th July 2012, The Office of the Prosecutor: International Criminal Court. Retrieved 24th May 2016 from http://www.icc-cpi.int/iccdocs/otp/UNSCreportLibyaNov2012_english5.pdf

Mayerfeld, J 2003, “Who Shall Be Judge?: The United States, the International Criminal Court, and the Global Enforcement of Human Rights,” Human Rights Quarterly, 25(1), pp. 93–129. doi:10.1353/hrq.2003.0007

Rovine, A 2001, “Memorandum to Congress on the ICC from Current and Past Presidents of ASIL,” American Journal of International Law, vol. 95, no. 4, p. 969.

Shirley, V 2004, International Law in World Politics: An Introduction, Boulder, Colo., Lynne Rienner.

Slaughter, A.M & Burke-White, W 2006, “Future of International Law Is Domestic (or, the European Way of Law),” The. Harvard International Law Journal, vol. 47, no. 2, pp. 327-352.

Stahn, C 2012, Libya, the International Criminal Court and Complementarity A Test for “Shared Responsibility,” Journal of International Criminal Justice, 10(2), pp. 325–349. doi:10.1093/jicj/mqs016

Whitson, S 2012, Libya’s Human Rights Problem. Foreign Policy. Retrieved 24th May 2016 from http://mideast.foreignpolicy.com/posts/2012/05/15/libyas_human_rights_pr