The International Criminal Court Essay Example

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The International Criminal Court

TABLE OF CONTENTS

International Criminal Court 1

1Executive Summary

2Introduction

2Structure of the ICC

2Objectives of the ICC

3Difficulties Envisaged by the ICC

4Perceived Strengths of the ICC

5Universal Jurisdiction and its Attendant Problems

6ICC – the Reality

8Conclusion

10Recommendations

13Bibliography

International Criminal Court

Executive Summary

This work evaluates the extant working conditions and problems experienced by the International Criminal Court. Initially, this work describes the structure and the objectives of the ICC. In addition, the principle of complementarity and the lapses in its working have been examined. In this endeavour, case studies, such as Rwanda and Yugoslavia have been take up for discussion. In addition, various instances have been analysed to assess the effectiveness of the ICC in dealing with international crimes and universal jurisdiction. As such, the advantages and disadvantages of universal jurisdiction have been examined. Thereafter, conclusions have been arrived at. Finally, recommendations have been made to improve the working of the ICC, in order to render justice to the victims of crime in the international arena.

Introduction

A two tier system of international criminal jurisdiction has been established by the founders of the ICC. The first level consists of states and their system of criminal law. Statute is founded upon the principle of complementarity, and this results in states being vested with the primary duty to exercise their criminal jurisdiction upon the perpetrators of international crimes. The second, tier pertains to the ICC, which according to the principle of complementarity, is strictly restricted to acting as a last resort. This is with respect to cases, wherein the national criminal law systems are incapable of or reluctant to conduct the prosecution or investigation[CITATION Kau07 p 577 l 1033 ].

In addition, in the absence of an enforcement mechanism, the ICC has to perforce depend upon the cooperation of the national law enforcement systems to arrest and handover suspects to it. The ICC constitutes a court of last resort. It enacts the role of a safety net, in instances, wherein the domestic courts prove incapable of prosecuting, due to the collapse of the criminal justice system or its inadequate fortification. Another situation, where the ICC become significant is where the perpetrators continue to exercise sufficient influence over the government[ CITATION The141 l 1033 ].

Objectives of the ICC

The principal objective of the ICC is to bring impunity to an end. However, the absence of enforcement powers in the ICC have served to seriously weaken its credibility and competence to administer international criminal justice effectively. Those who support the ICJ have displayed satisfaction with reliance upon questionable enforcement initiatives, such as military interventions. On the other hand, individuals critical of the ICJ have stressed that the provision of amnesties will guarantee the deposition of dictators[CITATION Ali14 p 408 l 1033 ].

This throws up the question of whether a via media could be found between absolute exemption from punishment and accountability at any cost. In this context, a measure of hope has been provided by the Gilligan model, developed in the year 2006. This model suggests that the ICC could have a deterrent effect and could be self-enforcing. Gilligan further opines that such a situation would transpire if the ICC were to furnish corrupt leaders with a coherent but more expensive exit strategy than asylum, whenever the regime is on the verge of collapse. The drawback with this model is that it does not take into consideration that the ICC prosecutes leaders, as well as opposition groups. This has the potential to prevent rebellion from opposition groups[CITATION Ali14 p 408 l 1033 ].

However, the dismal performance of the International Criminal Tribunal for the former Yugoslavia caused several commentators to isolate the absence of enforcement powers in the ICC as a major impediment to the effectiveness of this initiative. This transpired before the commencement of operations of the ICC[CITATION Ali14 p 414 l 1033 ]. As pointed out by Cassese, International Criminal Tribunals are at a decided disadvantage, in comparison to the national criminal courts. These tribunals have to investigate the crimes that they are called upon to adjudicate[CITATION Ali14 p 415 l 1033 ].

Perceived Strengths of the ICC

As such, the ICC enjoys its own statutory provisions that specify the obligation of the concerned nations to cooperate with it. This is similar to the situation of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda. State cooperation is imperative for the successful functioning of the ICC, as well as these tribunals[CITATION Ali14 p 415 l 1033 ].

Kirsch has emphasised that the dependence of the ICC upon the states, does not constitute a valid reason to permit political considerations to influence the decision making of the ICC. The states should honour their obligations under international law and come to the aid of the ICC. The difficulties encountered by the ICC during its investigations, can be attributed to the refusal of states to acknowledge these responsibilities[CITATION Rod12 p 61 l 1033 ].

In addition, a study conducted by Peskin on the International Criminal Tribunal for the former Yugoslavia observed that prosecutors were successful in obtaining the support of Western powers and institutions. This was with regard to correlating reconstruction assistance and entry to the membership of the European Union with the tribunal. Thus, the governments of Serbia and Croatia were prevailed upon to relinquish individuals who had been regarded as war heroes by the local nationalists[CITATION Rod12 p 61 l 1033 ].

An instance of this was provided by the arrest and extradition in May 2011 of Mladic, a former Bosnian Serb general. However, with regard to Darfur, there have been no endeavours to involve third parties to coerce the Sudanese to hand over those responsible for war crimes, crimes against humanity and genocide. The international community has been seen to adopt an approach based on humanitarian assistance, political agreement and security, while relegating justice to the background[CITATION Rod12 p 61 l 1033 ].

Universal Jurisdiction and its Attendant Problems

In addition, in the year 1998, the advantages and disadvantages of having a universal jurisdiction, in place, came to the fore. This transpired when the UK detained Pinochet, the erstwhile military dictator of Chile, in response to the charges of torture by a Spanish prosecutor. Several diplomatic controversies were generated, due to the Pinochet affair, which served to illustrate the problems inherent in applying the principle of universal jurisdiction[ CITATION Sew00 l 1033 ].

Universal jurisdiction tends to be in the incipient stage, and is likely to develop over time, with the advent of additional cases. It has the possibility of emerging as a useful adjunct to the International Criminal Court (ICC). Nevertheless, universal jurisdiction cannot acquire the consistency or capacity of a permanent court. In addition, it could be devoid of the apparent validity of a treaty based entity[ CITATION Sew00 l 1033 ].

ICC – the Reality

Apparently, the ICC has acquired the status of an indispensable international entity. Several of the gravest atrocities of the recent times, such as those committed in Uganda, Sudan and the Democratic Republic of the Congo, are being examined by this institution. Furthermore, the ICC has been conducting an investigation into the 2007 Kenyan election related violence. This has caused consternation among the Kenyan elite[ CITATION Kay11 l 1033 ].

However, these development belie the fact that the ICC has proved unsuccessful in completing even a single trial. This has created despondency among the governments that had contributed around a billion dollars towards the budget of the ICC. The first trial of the ICC had almost been dismissed on two occasions. The Sudanese President al-Bashir and the leader of the Lord’s Resistance Army Kony, have chosen to ignore the ICC and have successfully avoided arrest. Moreover, the investigations of the ICC have been restricted to the African nations. This has wreaked havoc with its reputation of being an international tribunal[ CITATION Kay11 l 1033 ].

Furthermore, a critical component of the Rome Statute of the ICC is the principle of complementarity. Its effect can be discerned throughout the structure and functioning of the ICC. Despite the fact that the legal literature has been seized with discussing the nature and scope of complementarity under the Rome Statute, the ICC jurisprudence has addressed several important issues of complementarity, only to a limited extent[CITATION Han12 p 218 l 1033 ].

In addition, political factors that are independent of the ICC determine its effectiveness in obtaining the custody of suspected individuals and deterring criminal violence. The reason behind this ineffectiveness of the ICC is the tension between the ICC’s dependence upon the voluntary cooperation of the nations for enforcing its decisions and the ambitions of the Rome Statute[CITATION Rod12 p 60 l 1033 ].

Moreover, several of the nations have failed to ratify the ICC Statute, some of these are China, Russia and the US. It is necessary for nations to cooperate with the ICC, as it does not possess its own enforcement mechanism. The absence of cooperation from nations has significantly debilitated the efficiency and authority of the ICC. With its headquarters in The Hague, the ICC is far removed from the instances being investigated. Moreover, the ICC functions under a unique and intricate legal system[ CITATION FID13 l 1033 ].

Impunity constitutes a function of the actual power equations at the ground level. Thus, impunity can be brought to an end, only if external entities impose non-judicial devices, such as force or sanctions, to emasculate or defeat the perpetrators. Therefore, some manner of intervention to end and avert criminal conduct is indispensable for empowering international criminal tribunals to bring about the punishment of the entities responsible[CITATION Rod12 p 62 l 1033 ].

Conclusion

The ICC addresses international crimes, when the national courts fail to investigate such crimes and prosecute the perpetrators. The ICC obtains jurisdiction in cases wherein the national courts lack the ability or the motivation to genuinely investigate crimes in their jurisdiction and prosecute their perpetrators.

The ICC, under the complementarity principle prosecutes crimes only when there is unwillingness or inability on the part of the national courts to do so. This is due to the fact that such crimes are best prosecuted in the territories where they are perpetrated. The ICC does not intervene, when a case is being investigated or prosecuted by a national court. The exception to this general rule arises when the national proceedings are bogus. An example is the undertaking of formal proceedings with the sole intention of protecting an individual from criminal responsibility.

In addition, the ICC is situated in The Hague, a prominent place in the developed world that is far removed from the genre of crimes to be found in Rwanda, former Yugoslavia, and the African nations, such as Nigeria. Moreover, the ICC is weighed down, due to its complex legal procedures. As a consequence, there could be insufficient familiarity with the actual situation. The outcome could be a wrong perception of the situation due to insufficient and wrong information from the ground. These problems may result in serious lapses of justice.

Recommendations

Significant improvement in the functioning of the ICC can be achieved, only by adopting certain recommendations. Some of the more important among these are enumerated in the sequel.

ICC does not have police forces for implementation procedures. This problem can be resolved by strengthening the cooperation of the concerned national police forces with the ICC. Despite its being adapted by many states, influential states such as the US, Russia and China have not ratified the ICC statute. These states should be induced to ratify the ICC statute, in order to extend their cooperation to universal jurisdiction and thereby to accord justice to the victims of international crime. As such the ICC should be strengthened by all the powerful nations.

Additionally, national jurisdictions should be more diligent in disseminating information and providing sufficient cooperation, while dealing with the other implementation procedures. As such, the ICC should be strengthened in all the above said spheres, so that justice will be allowed to the victims of crimes at the international level.

Bibliography

Ali, N., 2014. Bringing the Guilty to Justice: Can the ICC be Self-Enforcing?. Chicago Journal of International Law, 14(2), pp. 408-452.

FIDH, 2013. International Criminal Court. [online] Available at: <http://www.fidh.org/en/international-justice/international-criminal-court-icc/The-ICC-2002-2012-10-years-10> [Accessed 2 June 2014].

Hansen, T. O., 2012. A Critical Review of the ICC’s Recent Practice Concerning Admissibility Challenges and Complementarity. Melbourne Journal of International Law, 13(1), pp. 217-234.

Kaul, H.-P., 2007. The International Criminal Court: Current Challenges and Perspectives. Washington University Global Studies Law Review, 6(3), pp. 575-582.

Kaye, D., 2011. Who’s Afraid of the International Criminal Court?. Available at: <http://www.foreignaffairs.com/articles/67768/david-kaye/whos-afraid-of-the-international-criminal-court> [Accessed 1 June 2014].
[Online]

Rodman, K. A., 2012. Why the ICC Should Operate Within Peace Processes. Ethics & International Affairs, 26(1), pp. 59-71.

Sewall, S., 2000. The United States and the International Criminal Court. Available at: <http://content.knowledgeplex.org/ksg/cache/documents/20.html> [Accessed 1 June 2014].
[online]

The International Criminal Court, n.d. [online] Available at: <http://www.amnestyusa.org/pdfs/IJA_Factsheet_1_International_Criminal_Court.pdf> [Accessed 2 June 2014].