The international crimal court Essay Example

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Lecturer

The General Assembly adopted Rome Statute in 1998 and created ICC under Rome Statute enforcing it on July 2002 established in Hague and currently accepted by 122 states. The judges were elected and sworn in 2003; issue arrest warrants on July 2005 and held a pre-trial hearing in 2006. In the international political context, Africa Union or States have argues that ICC only targets Africans. Russia has not ratified Rome Statute and countries like Israel, Sudan and United States have no obligations as they are no longer states parties. The International Criminal Court is mandated and works through a structured mechanism that has granted its jurisdiction (Simmons and Danner 239).

ICC deals with cases where accused are national of States that have signed to Rome Statute. It determines the case where the alleged crime occurred on the territory of State Party and if the criminal situation is referred to it by UN Security Council (Schabas 3). Eventually, it also continues with the cases where States that are not a party to the Statute acknowledges and accepts the court’s decision. The ICC does not exist to replace national judicial system but exist as an organization that complements national judicial systems. The Court only exercises its powers and jurisdiction if at all the national court shows unwillingness or are unable to deal with the criminal cases through investigation and prosecution of such crimes (Burke-White 53). The approach used by the court holds the primary responsibility over States to investigate and prosecute crimes that occur within the State’s jurisdiction.

The ICC follows a particular procedure with precise steps before settling on judgment. Fist, trials are conducted through the use of civil and common law. The decision is reached by the majority of three judges present with a full or reasoned statement. The trial is open to public though often, proceedings are closed. In camera proceedings are followed as a way to protect the witnesses, defendant, sensitive and confidential evidence. The rights of the accused are followed by provided rights by Rome Statute that; persons are presumed to be innocent until they are proven guilty even beyond reasonable doubt. There are also certain rights provided to the accused during investigations including; the right to be informed of charges against them, the right for a representing lawyer, right to have a speeded trial as well as right to examine witnesses against them (Schabas 11).

The ICC also provides for victim participation as well as reparations. There are series of rights that victims are granted like presenting their observations and views before the court. In various stages of court proceedings, they can also participate and judges give directions, manner and timing for participation. The Court has set principles of reparation where restitution, rehabilitation and indemnification can be set for the victims (Keller 189). Rome treaty does not create obligations and rights for third states without their consent. Third states can only cooperate through voluntary actions. However, in certain cases, states not acceded to Rome Statute can be subjected to cooperate with ICC like where a case is referred by UN Security Council (Simmons and Danner 24). The ICC acknowledges amnesty in some cases, for instance, where amnesty may be necessary for peaceful transfer from abusive regimes. In that context, it considers that, denial for amnesty may make it difficult to end conflict, negotiate democracy or lead to transition to democracy.

There are various parties with different or similar interests to ICC. The main parties to ICCC are 12 States that signed the Statute of the Court. The States are obliged to refrain from criminal acts that can defeat the purpose and object of ICC treaty as long as they are member or party to the treaty. It should be acknowledge that ICC is independent from UN but Rome Statute grants some powers to UN Security Council. UNSC can refer to ICC situations that the Court would not refer as they do not fall under its jurisdiction. Darfur and Libya were two cases where UNSC referred the situation since Sudan and Libya were not States parties. There are a number of roles that UNSC is allowed to carry out as per Article 16. It can require ICC to defer from investigations of a case for 12 months and a deferral can be renewed indefinitely by UNSC. Eventually, UNSC can be said to have some advantages as an organ of UN since it can use enforcement powers.

In 1970 and ‘80s, humanitarian non-governmental organizations had exponential proliferation to ICC. There has been a quest to punish international crimes and the responsibility cannot exclusively be set on ICC alone. There has been a need for legal experts to be shared with other human rights activism from various jurisdictions. NGOs promote a vital role to ICC through it advocacy, championing prosecution and referring perpetrators of crimes to ICC. They closely monitor organizational declarations as well as actions that are taken on behalf of ICC and that they are in line with objectives of civil society (Glasius 32).

The relationship between the NGOs and ICC has been closer, vital and more consistent. A number of these NGOs perform strategic issues related to ICC. The NGO Coalition for the ICC serve as an umbrella coordinating NGOs with similar objectives with 2,500 member organizations comprising of NGOs from 150 countries (Cakmak 374). These organizations are from different backgrounds, span from major NGOs at international level as well as smaller and more local organization with the purpose of keeping justice missions and peace. The Coalition works under some vital principles with objectives of promoting worldwide ratification as well as implement Rome Statute maintain integrity of Rome Statute and ensures that ICC is fair, independent and effective as possible.

These NGOs pursue roles that are exclusive to ICC as well as serving other broader causes. However, the ICC coordinates their efforts, improve efficiency and influence major issues. However, NGOs do not contact the Court directly but passes through CICC. Consequently, NGOs have led to creation of normative climate and led to evolution of ICC. They also serve a vital role in lobbying support for ICC and work with experts to pass necessary domestic legislation. Therefore, it can be said that, NGOs complements ICC in its roles.

China which is a member of UN Security Council and India have never signed or ratified to Rome Statute and have been critical of it (Ginsburg 500). In 2013, African Union expressed its grievances to ICC arguing that it was targeting Africans.

The Court relies on NGOs and other sources of information when investigating cases and perpetrators on crime against humanity. Eventually, hearsay and indirect evidence prevails and is not generally prohibited. The Court has been criticized in its past cases due to lack of effective hearsay exceptions that are prominent to other common law systems. The Court also lacks the means to compel witnesses to appear before the court though it can compel through fines. Common law systems like United States identified the Courts standards as wanting as it does not offer the accused the rights to confront their accusers. In addition, ICC lacks ability to compel witnesses and indirect evidence that is not prohibited (Elsea 12).

There are limitations that have faced the Court as prosecutor team have failed to take account for government roles in conflict in such cases like Congo, Rwanda and Uganda. Most of its investigations are flawed and in most cases, ICC cannot reach a conclusion of a verdict when confronted with government actions and positions in the conflict.

Most States have a feeling that ICC is biased and a tool that endear Western imperialism (Ginsburg 503). In turn, it pursues leaders from weak and small states but often ignore crimes involving powerful and richer states. The sentiment has commonly been expressed by African leaders pointing disproportionate focus on Africa by the Court. All the eight cases investigated by the Court have all involved African States. Some countries like Kenya have had parliament motion to withdraw from ICC calling other 34 States that have acceded to Rome Statute to withdraw as it was discussed by the African Union Summit in 2013 (Hall 4).

Sudanese President has also argued that ICC has exaggerated his case and some countries have defied his arrest. Ivory Coast also preferred to have the trial of Simone Gbagbo at home instead of ICC (Clarke 27). Other prominent personalities from African have seen ICC as a political mater, mishandling complex issue of the continent, with bad impression in Africa, unreasonable and totally unacceptable. AU Summit objected ICC trial of heads of states and called for cases facing Kenya to be deferred due to double standard seen to be applied by ICC as it dispense international justice (Hall 8). Currently, due to call for exemption of heads of states from trial, ICC’s Assembly responded to such call that involved Kenya as it agreed to amend the Rome Statute in order to address that concern (Mueller 6).

The Court has been criticized due to lack of checks and balances that ICC prosecutor and judges have abuses and politicized prosecutions. ICC risks the possibility of being tainted with myriad political controversies from Security Council. One major criticism of determining powers of UNSC is the fact that among its members that form veto power; United States and China are not signatories to the Rome Statute.

ICC should ensure that the prosecution team should be deployed as observers during civil wars and conflicts to get firsthand information that would promote their prosecution. Eventually, they will minimally rely on information from civil rights activities and NGOs that are in most case bipartisan and support political divides. ICC requires expertise to examine information, witnesses and victims and ultimately aim to protect and rights of the accused. The inclusion of expertise would also promote speedy judgment; a thing that has lacked as cases takes over five years before final judgment.

The roles assigned to United Nations Security Council should be reviewed and in turn, a neutral structure should be created and only comprising of representative from States that have acceded to Rome Statute. In fact there should be an objective representation where each continent agrees on one representative. That would mean that the interests of states would be protected from overly domination and make ICC serve its universal mandate (Berman 301). Eventually, decisions from such objective structure would face fewer objections.

ICC should assist countries that lack effective judicial system like Africa States to come up with continental or regional courts that will determine and prosecute individuals involved in war crime and genocide (Baylis 46). That would increase avenues for objectivity and accountability. The States are supposed to be assisted to interpret the Rome Statutes and thus address large or distinct areas. There are multiple actors and perpetrators that ICC cannot prosecute and particularly due to lack of political willingness and support by government from African countries due to its image that is seen as biased. In doing so, it should ensure wider consultation, adhere to preferred standards by African states and ensure that they own the court processes through political commitment and setting clarity on relationship of such courts with ICC.

Members who have acceded to Rome Statute should consider reviewing the treaty to make it serve an objective role in its application. The utmost role of the court should be to halt any conflict that might arise in future. Some requirements like the case where the heads of states attends ICC proceeding are to be reviewed as this can lead to increased conflict in a country where the head of state is summoned.

Works Cited

Baylis, Elena A. «Reassessing the Role of International Criminal Law: Rebuilding National Courts Through Transnational Networks.» (2008).

Berman, Paul Schiff. «Pluralist Approach to International Law, A.» Yale J. Int’l L.32 (2007): 301.

Burke-White, William W. «Proactive complementarity: The International Criminal Court and national courts in the Rome system of international justice.» Harv. Int’l LJ 49 (2008): 53.

Cakmak, Cenap. «Transnational activism in world politics and effectiveness of a loosely organised principled global network: The case of the NGO coalition for an international criminal court.» International Journal of Human Rights 12.3 (2008): 373-393.

Clarke, Kamari Maxine. «Treat greed in Africa as a war crime.» New York Times (2013): A27.

Elsea, Jennifer. US Policy Regarding the International Criminal Court. 2006.

Ginsburg, Tom. «The Clash of Commitments at the International Criminal Court.»Chicago Journal of International Law 9 (2009): 499-514.

Glasius, Marlies. Expertise in the cause of justice: Global civil society influence on the statute for an international criminal court. Oxford University Press, 2010.

Hall, James. «African leaders vs. the International Criminal Court Efforts to undermine a way to make war criminals accountable: Africa-wide-continental overview.» Africa Conflict Monthly Monitor (2013): 4-9.

Keller, Linda M. «Seeking Justice at the International Criminal Court: Victims’ Reparations.» Thomas Jefferson Law Review 29.2 (2007): 189.

Mueller, Susanne D. «Kenya and the International Criminal Court (ICC): politics, the election and the law.» Journal of Eastern African Studies ahead-of-print (2014): 1-18.

Roach, Steven C. Politicizing the International Criminal Court: The convergence of politics, ethics, and law. Rowman & Littlefield Publishers, 2006.

Schabas, William. An introduction to the international criminal court. Cambridge University Press, 2011.

Simmons, Beth A., and Allison Danner. «Credible Commitments and the International Criminal Court.» International Organization 64.2 (2010).

Simmons, Beth, and Allison Danner. «The International Criminal Court.»Routledge Handbook of International Law (2008): 239.