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Effectiveness of International Criminal Court (ICC)
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The Effectiveness of ICC as a Means of Bringing Violators of Human Rights to Justice
The ICC became the first international court to be tasked with the responsibility of prosecuting and bringing to justice individuals who have grossly violated human rights (Simmons and Danner, 2010). It has the mandate of prosecuting people who have committed heinous crimes genocides, war crimes, and crimes against humanity, including crimes of aggression (Ali, 2014). Therefore, it is the responsibility of the ICC to eradicate impunity for mass violation of human rights by bringing the violators of human rights to justice (Balasco, 2013). Despite the fact that the international court has made some progresses in terms of meeting its mandate, it continues to face a number of challenges, especially the opposition from the member states. The effective function of the court depends on the cooperation of the state parties, a factor that has affected its operations. Therefore, this essay critically analyzes the effectiveness of the ICC as means can help in bringing violators of human rights to justice and ends impunity that is rampant in many countries in the world.
In summary, the ICC was established based on Rome Statute, which was ratified with sixty state parties on 11th April, 2002 (Gallarotti and Preis, 1999). However, the Rome Statute became operational from 1st July, 2002. By December 2012, 121 nations had ratified the Rome Statute. It is interesting to note that all the member states of the EU and NATO had joined the ICC by then except the USA and Turkey. By January 2013, four member states, including Central African Republic, DRC, Uganda, and Mali had referred various situations occurring in the countries to the ICC through the Office of the Prosecutor (OTP). In addition, the court is also investigating two cases that was forwarded by the by the UN Security Council on the violation of human rights that took place in Sudan and Libya. The first case to be handled by the court was the one that was involving Thomas Lubanga Dyilo who was later convicted war crime. Dyilo was sentenced to 14 years in prison on 14th March, 2012. It was the first case to be completed by the court since it was established in 2002 (Phooko, 2011). The court completed the second case against Mathieu Chui was acquitted of charges of violations of human rights war crimes in the DRC. However, the court still has a lot of pending cases, including those involving Uganda, Sudan, Libya, Syria, and DRC.
The above summary of the ICC shows that it has made some progress in prosecuting a number of cases, but there are many pending cases that it needs to investigate and prosecute. Lack of cooperation of state parties is the main factor affecting the effectiveness of the ICC in meeting its mandate. The court has found it difficult to compel member states to cooperate and assist it in its investigation and prosecution (Ali, 2013). A number of legal scholars have argued that states cooperation is the most crucial pillar that determines the effectiveness of any international justice system (Ali, 2014). The ICC has no clear mechanism to compel the cooperation of member states. Therefore, without the alternative way of enforcement, the court will remain ineffective in meeting its mandate of eliminating the mass violation of human rights (Thompson-Flores, 2010).
Despite the fact that the Rome Statute detailed the determination of non-compliance by the ICC, it does not state the consequences of failing to cooperate with the court. The statute only states that the non-compliant party states should be referred to the UN Security Council, which always takes a relatively long period of time before the application is determined (Kirsch, 2006). For instance, the court reported that Kenya, Djibouti, and Malawi failed to cooperate with it in arresting Al Bashir, the president of Sudan who is accused of war crimes. However, nothing was done to the three countries for failing to cooperate with the court despite the fact that they are members of the ICC. The court has not equipped the member states to deal with complex arrest like the one involving the head of state like Al Bashir of Sudan (Kirsch, 2006). Therefore, the members of the ICC cannot be blamed for failing to cooperate with the court some of them are ill-equipped handle the ramifications of arresting senior personalities in the society like the president. As a result, the ICC finds it hard to carry out its functions due to weak or limited enforcement mechanism, which largely depends on the cooperation of the state parties.
Some scholars have argued that the court can be made effective by coming up with coercive enforcement mechanisms (Thompson-Flores, 2010. The court should be allowed to use coercive measures like economic functions and the use of military force to compel state parties to surrender individuals who have violated human rights. However, the consequences of failing to cooperate with the ICC can only bear fruits if it is supported with international bodies like the UN. There must be international political will to bring justice to individuals who violate human rights.
Politics and define interests of member states are the main factors that are hindering the effectiveness of the ICC (Carofiglio, 2015). Although the court is independent and is expected to be objective and partial in carrying out its mandates, there are some elements of politics in its operations. Both internal and external politics is interfering with the effectiveness of the court. Many countries, especially those from African continent accuse the court of being used as a political tool. The court is significantly influenced by the political entities like powerful individuals, Security Council, and member states as shown in the cases below.
During the investigation of the violation of human rights that took place in Sudan, the former ICC prosecutor Moreno Ocampo committed that he would pursue justice regardless of political interests and implications. Despite the goodwill of the court, it was used as a political weapon in the conflict that was involving Al Bashir and the rebels. The court started distinguishing between its allies and enemies (Nouwen and Werner, 2010). Legal scholars have argued that the distinction between enemies and friends of the court is a political process that hinders the effectiveness of the ICC. The court was accused of engaging in politics when it indicated the intention of prosecuting Al Bashir and his government officials and left the rebels who also violated human rights. Consequently, the rebels were claiming that they are partners and allies of the ICC against the Sudanese government. As a result, many state parties and individuals viewed the court as a political tool being used to settle political interests, which has tainted the image of the court and its effectiveness.
In the Ugandan case, the court also indicated that politics is inevitable in its operations when it started differentiating its friends and enemies. Contrary to the Sudan case, the rebels became the enemy and the Ugandan government became the friend to the court. The move to prosecute leaders of Lord Resistance Army (LRA) gave the court and the Ugandan government the opportunity to weaken the rebels (Nouwen and Werner, 2010). This was viewed as a political move in favor of Museveni, the current president of Uganda. Museveni invited the court to arrest the leaders of the LRA because they are stable block to his political ambitions. In addition, the ICC prosecutor Ocampo knew that he would not experience state unwillingness, which would help in facilitating the proceeding of the case. The Ugandan case show that politics defines the effectiveness of the court and that it relies on the cooperation of the members states to execute its mandates.
The above two case studies show that the effectiveness of the ICC in bringing the violators of human rights to justice is significantly influenced by national and international politics. The court can hardly bring justice to the victims who have suffered gross human rights violations because it cannot evade politics. It is being controlled by powerful states like the USA and political bodies like the Security Council that influence its operations.
The ICC is also relatively ineffective due to the complexities of the cases that it handles (Dicker, 1999). The cases involve the sovereignty of states and they involve powerful individuals who can easily interfere with the justice system. For instance, in the case of Sudan, the Security Council that referred the Al Bashir case to the ICC expects the court to arrest and prosecute the president yet it does not have the police force or military to arrest such a powerful individual (Barnes, 2010). In addition, Al Bashir is a sitting president who controls police and army, which makes his arresting unimaginable so long as the court has no effective enforcement mechanism. Also, the court expects the state parties to arrest Al Bashir due to the diplomatic immunity that is stated in article 98 of the Rome Statute (Barnes, 2010). Therefore, member states are in dilemma of complying with the ICC and adhering to the diplomatic immunity. Besides, the court does not expect African countries to arrest Al Bashir because they believe that it is only targeting African leaders. As a result, the court experiences difficulties in investigating and prosecuting heinous crimes like war crimes that were committed in Sudan because of the complexity of the case. Define political interests, sovereignty issues of state parties and powerful individuals make it hard for the court to bring justice to the alleged perpetrators and victims.
Therefore, the ICC cannot effectively carry out its mandate because of political factors surrounding its operations (Damaska, 2009). The court was initially established with political dimension because it mainly investigates cases that are related to politics. In addition, it is the politicians who majorly commit complex crimes like the war crimes or genocides due to political interests. Its operations also depend on the political will of member states and international bodies. Therefore, politics is compromising the independence of the court and its effectiveness. The ICC can only be effective it meeting its role of binging the violators of human rights to justice when it stops involving politics in its operations (Damaska, 2009). It must uphold objectivity and partiality when it is conducting investigation and prosecuting the cases for it to be effective.
Apart from the cooperation of state parties and politics, the effectiveness of the ICC can also be determined by analyzing its internal mechanism. Any case must be based on sufficient evidence, which makes the OTP the most important organ of the ICC because it is the organ that is tasked with the responsibility of carrying out the investigation (Seibert-Fohr, 2003). Therefore, the Office of the Prosecutor is the engine of the ICC and it determines the effectiveness of the court in meeting its objectives. Other important chambers in the ICC system include pre-trial, trial and appeal chambers.
Many ICC cases have collapsed due to lack of substantive evidence. According to many scholars and studies, the number of cases collapsing can be reduced by conducting thorough investigation because the court starts prosecution. The court can initiate the pre-trial or even trial when the OTP is still doing the investigation (Seibert-Fohr, 2003). As a result, many cases have been initiated by the ICC before gathering enough evidence. To enhance the effectiveness of the court, it is important for the OTP to complete its investigation before the case is initiated in the pre-trial chamber. Complete investigation by the office of the prosecutor will give the Pre-Trial Chamber the ability to finish all the preparation for the case. In addition, this will enable the chamber to inform the accused and the victims of the facts, available evidence, and the protection measures (Simmons and Danner, 2010). Consequently, the process followed by the ICC in confirming the cases hinders its effectiveness because it relies on the incomplete investigation.
The issue of witness protection during the ICC trials is also a factor that determines its effectiveness. The witnesses who are called upon to testify in courts are always at great risks due to poor witness protection mechanism put in place by the court (Kuenyehia, 2010). Perpetrators have always found a way of accessing witness personal information that they use to interfere with the evidence by threatening witnesses (Kayuni, 2015). For instance, during the prosecution of the Kenyan case, the Office of the Prosecutor accuses the perpetrators of interfering with the witnesses (Beqiri, 2011). The ICC is not able to effectively protect witnesses due to lack of enough funds because it has to depend on the donations from party states (Clark, 2011). Therefore, interfering with witnesses during the court’s proceedings has hindered its effectiveness in bringing the perpetrators of human rights to book. It has also contributed to the collapse of some of the ICC cases.
There is also a wide time gap between the confirmation of the cases and their commencement. The time gap has affected the effectiveness of the court because it can allow the interference of cases. It gives the prosecutors time to find ways of interfering with witnesses and available evidence. In addition, the time gap gives room to involve politics on the ongoing cases, which may end up interfering with the justice.
The effectiveness of the ICC is also affected by the overlap of the role of Pre-Trial Chamber and the Trial Chamber (Kaul, 2011). There is no clear definition of the relationship between the two chambers. Consequently, lack of clear definition of the roles of the chambers affects the smooth operations of the court. For instance, it is not clear how the Trial Chamber should utilize the findings obtained by the Pre-Trial Chamber, which has led to confusion and repetition in presenting the available evidence (Kaul, 2011). In addition, there is conflict in the chambers on the roles of victims during different stages of the court proceedings (Groome, 2014). As a result, there is ineffective victim participation during the trials that needs to be considered. Therefore, the poor internal function of the court affects its effectiveness in bringing justice to both the perpetrators and victims of the violation of human rights.
In conclusion, the ICC is relatively effective in ensuring that people who violate human rights are charged and made to pay for their actions. It has successfully prosecuted cases involving various powerful individuals like Thomas Lubanga and Mathieu Chui. Lumbanga was sentenced to 14 years of imprisonment while Chui was acquitted. However, the court is largely ineffective mainly due to its poor enforcement mechanisms. The effectiveness of the court largely depends on the cooperation of state parties, especially when it comes to arrest and surrendering people who have been accused of violating human rights. The court lacks the executive power to enforce the cooperation of it member states. The complexity of the cases being handled by the ICC also hinders its effectiveness because they involve sovereignty of states and diplomatic relations of various countries. The effectiveness of the court is also influenced by the politics and political will, as the cases are related to politics and they mainly involve politicians who have power and influence. Therefore, there is a need to enhance the effectiveness of the ICC to ensure that violators of human are brought to justice.
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