The International Criminal Court: A Review
Priye S. Torulagha
The Necessity for the International Criminal Court
It has always been problematic in enforcing International law since independent states have sovereignty. Moreover, it was generally assumed in the past that political leaders of the states had sovereign immunity, therefore, they could not be easily arrested, indicted and prosecuted as other citizens due to their special status, even when they committed crimes against humanity. Added to this was the fact that there was no designated international agency or organization that was responsible for enforcing international law as it is the case in national or domestic law. In order to solve the problem, 160 countries met in Rome on July 17, 1998 to draft a treaty for the establishment of a permanent international criminal court. The treaty became the Rome Statute of the Permanent International Criminal Court.
Eventually, the ICC was established in 2002. Its main purpose is to deter and prevent the occurrence of crimes against humanity, war crimes and genocide or mass atrocities by investigating, prosecuting and trying individuals accused of committing such crimes. The ICC came into existence at the most pressing time since there was a need to fill a void that existed in the international law arena, as indicated above. Although, after the 2nd World war, trials were carried out against German and Japanese political and military officials for war crimes and crimes against humanity, however, there was no formalized institution geared towards arresting, charging, and prosecuting individuals who committed unspeakable dastardly acts against people.
Thus, the ICC is to ensure that individuals who violate human rights face prosecution, just as those who commit crimes under domestic or national law face arrest, prosecution and possible imprisonment.
Consequently, due to its noble duty, the ICC received immediate approval and support globally as soon as it was established. Indeed, the birth of the ICC increased hope and assurance that finally, political and military leaders, public officials and non-state public figures who commit monstrous acts against people would be compelled to answer questions in the court of law, regardless of their position in society. It is notable that the Thirty-year War (May 23, 1618 – May 15, 1648) in Europe between the Catholics and Protestants and led by European monarchs contributed to the deaths of about 20 percent of the German population. The First World War claimed more than twenty million lives, including combatants and non-combatants. The atrocities committed during the First World War paled in comparison to the heinous crimes committed during the Second World War. About fifty million people died during this war. The abuse of women and children in conflict situations escalated during the middle and later part of the twentieth century. Likewise, the later part of the twentieth and early part of the twenty-first centuries experienced an increase in the use of children to fight bloody wars.
Apart from atrocities committed during wars against combatants and non-combatants, many political and military leaders, especially in the Third World, have been very horrendous, due to a desire to remain in power for life or enrich themselves through massive looting of public resources. They abuse human rights of their citizens by unleashing security forces against them and act with impunity to create fear by unnecessarily arresting, detaining, imprisoning and killing opponents or those they regard as “enemies.” The Balkan wars of the 1990s and the Rwandan genocide in 1994 increased the impetus for prosecutorial action. Therefore, an international court capable of bringing to justice political leaders and individuals who abused human rights was necessary and overdue. Hence, the great appreciation in Africa, Asia, Latin America, Middle East and Europe when the International Criminal Court was established in 2002.
HOW the ICC Operates
To ensure that the court is able to operate without undue political interference, the International Criminal Court is an autonomous body. This means that it is not an agency of the United Nations. Hence, it does not need a special mandate from the U.N. to operate. However, since the ICC and the U.N. need to harmonize their relationship so that the court can become much more effective and efficient in carrying out its duties, both signed an agreement to govern the institutional relationship between them in October 4, 2004.
Similarly, to ensure judicial objectivity and avoid undue influence by its financiers, the ICC receives funding through multiple sources, including states and voluntary contributions from international organizations, individuals, corporations, and governments.
To minimize impinging on the sovereignty of the states, the ICC exercises its jurisdiction on the states that signed the Rome Statute of Permanent International Criminal Court. This means that those states that signed the treaty are obligated to submit themselves to the jurisdiction of the ICC on crimes stipulated in the Statute. However, states that are not party to the Rome Statute may also allow the court to carry out its jurisdictional activities in their territories if individuals from those states commit crimes against humanity, war crimes and genocide. States that are not party to the Rome Statute may also choose to allow the jurisdiction of the ICC extended to their territories in order to abide by the prevailing custom of upholding international law, and subscribing to various conventions and protocols.
The ICC supplements the services of national or domestic courts and is not to replace them. Thus, it helps to strengthen the ability of the national or domestic courts in carrying out their duties in areas dealing with human rights, war crimes, child protection, women protection and other crimes against humanity. If national or domestic courts are able to carry out their responsibilities in an effective manner without intimidation or threat from individuals or political and military leaders of the states, the ICC may not intervene by extending its jurisdiction. However, if national or domestic courts are not able to fulfill their responsibilities due to threats from political and military leaders and powerful individuals within the states, then the ICC may extend its jurisdiction and ensure that perpetrators of various violations are brought to justice while at the same time protecting the victims from retaliatory attacks.
Additionally, the ICC’s jurisdiction is time-bounded in the sense that it cannot get involved in cases which took place prior to its creation. Consequently, it only investigate cases that started after its statute of creation took effect in July 1, 2002. Therefore, victims of human rights incidents that occurred prior to July 2002 must seek other means to address their grievances. This stipulation prevents the ICC from trying cases retroactively.
The ICC has about 34 judges and over 700 staff. It operates on an annual budget of about $166 million. Some people believe that the ICC is an expensive operation and is not cost-effective when its conviction rate is measured against its annual operational expenditure. Some people have argued that instead of spending so much money on the ICC, the funds should be granted to the states to strengthen their national and local courts and judicial institutions.
The Limitations (Weaknesses) of the ICC
Structurally and operationally, the ICC is a cutting-edge legal instrument designed to enforce a global standard for respecting human rights of individuals and groups, based on the principle of natural law. However, despite the nobility of its creation, the court has some limitations that tend to inhibit its ability to enforce human rights universally. The following attest to the court’s weaknesses:
- Some of the states in the international system appear to operate outside the jurisdiction of the ICC, regarding human rights. Therefore, countries like the United States, China, Russia, Britain, France, Germany and so forth, seem to be above international law concerning crimes against humanity, war crimes and genocide. As a result, individuals from these countries that have been alleged to have committed crimes against humanity are rarely arrested and prosecuted by the ICC. The ICC does not seem eager to extend its jurisdiction to such countries, even if there is a compelling evidence to do so.
- Following the perception that the aforementioned countries are technically above international law, the ICC tends to behave like law enforcement agencies and prosecutors at the national or domestic level. It seems very selective in filing charges against political and military leaders, high-level public officials and public figures accused of committing crimes against humanity, war crimes and genocide. It does so by targeting individuals from mostly the less developed world and ignore those from the developed and powerful military countries. This pattern of selective prosecution is common in domestic law where law enforcement agencies and prosecutors in almost every country in the world tend to apply the full weight of the law against those in society who are powerless politically and financially to mount effective legal defense against them. On the other hand, they tend to avoid cases in which they are less likely to win without putting a considerable amount of effort. This is why throughout the world, it is mostly members of the middle and lower classes which fill up the prisons. In the US, the president-elect, Mr. Donald trump, clearly demonstrated the fact that the rich can get away with so many things while those in the middle and lower classes cannot when he said publicly during the presidential debate that he avoided paying taxes because the system allowed him to do so.
- Similarly, the ICC seems very hesitant in threatening and filing charges against political and military leaders of Third World countries who have strong ties with Western nations. On the other hand, it does not hesitate to threaten, file charges and possibly arrest the political and military leaders of countries that have little or no ties with Western nations.
- Since Sub-Saharan African countries do not seem to have any measurable influence in the international political, military and economic arena, they are treated as semi-autonomous political entities rather than sovereign states. As a result, their political and military leaders, public officials and public figures always face a high probability of being indicted, arrested and prosecuted for alleged abuse of human rights by the ICC. The court is always eager to extend its jurisdiction to Sub-Saharan African countries at the slightest rumor or allegation of human rights violation.
- Following the perception that cases of human rights violations are selectively investigated, the ICC does not seem much interested in filing charges and prosecuting political and military leaders that have been responsible for the destructive and bloody wars in Afghanistan, Iraq, Yemen, and Syria. , Even the maltreatment of Rohingya Moslems in Myanmar did not catch the eye of the ICC when they were driven away from their communities through violence to flee into neighboring countries. On the other hand, in Africa, any slight rumor or allegation of human rights abuse is immediately investigated in an effort to file charges against someone for crimes against humanity.
- Due to the selective manner of enforcing of its statute, the ICC seems to redefine crimes against humanity, war crimes and genocide in such a manner that if a Western nation engages in such acts, the crimes are treated as non-felonious crimes, but if any country in the Third World, especially in Africa, engages in such acts, the leaders are immediately threatened with arrest. The perceived double standard prompted Gambia to withdraw from the court.
- Reuters reported “The government of Gambia said on Thursday it was withdrawing from the International Criminal Court , accusing the world body of ignoring the ‘war crimes’ of Western nations and seeking to prosecute Africans.”
- The ICC does not seem to treat the unnecessary killing of civilians through collateral damage inflicted by manned and unmanned aircrafts as constituting war crimes and crimes against humanity. As a result, Afghan, Syrian and Yemeni civilians are paying a terrible price for lack of action by the ICC to reduce the incidents of collateral damage.
- The apparent double standard tends to create the impression that some countries have sovereignty while others do not. As a result, the less powerful countries are easily subjected to the jurisdiction of the ICC as soon as an allegation is made against them. Similarly, individuals from the less powerful countries, especially in Africa, are easily indicted for crimes against humanity. This is why the list of individuals that have been charged with crimes against humanity is mostly filled with African political and military leaders, public officials and public figures. The list includes: 1. Bahr Abu Garda (Darfur, Sudan, 2. Abdalah Banda (Darfur, Sudan, 3. Omar al-Bashir (Darfur, Sudan, 4. Ahmed Haroun (Darfur, Sudan), 5. Abdel Rahim Hussein (Darfur, Sudan, 6.Saleh Jerbo (Darfur, Sudan), 7. Ali Kushayb (Darfur, Sudan), 8. Mohammed Ali (Kenya), 9. Uhuru Kenyatta (Kenya), 10. Henry Kosgey (Kenya), 11.Francis Muthaura (Kenya), 12. William Ruto (Kenya), 13. Joshua Sang (Kenya), 14. Jean Pierre Bemba (Central African Republic), 15. Germain Katanga (Democratic Republic of the Congo DRC), 16. Thomas Lubanga Dyilo, DRC), 17. Callixte Mbarushimana (DRC), 18. Sylvester Mudacumura Bosco Ntaganda (DRC), 19. Mathieu Ngudjolo Chui (DRC), 20. Charles Ble Goude (Ivory Coast), 21. Laurent Gbagbo (Ivory Coast), 22. Simonne Bgagbo (Ivory Coast), 23. Muammar Gaddafi (Libya), 24. Saif al-Islam (Libya), 25. Abbdullah Senussi (Libya), 26. Joseph Kony (Uganda), 27. Raska Lukwiya (Uganda), 28. Okot Odhiambo (Uganda), 29. Dominic Ongwen (Uganda), 30. Vincent Otti (Uganda), 31. Ahmadi al-Mahdi (Mali). Of the list, three individuals have been tried and convicted after trial in courts organized by the ICC. Those convicted are: Thomas Lubanga Dyilo (DRC), 2. Germain Katanga (DRC) and 3. Jean-Pierre Bemba (CAR). Of course, President Omar al- Bashir of Sudan is still a wanted man by the ICC.
- The performance of the court, so far, also tends to create the impression in the minds of many Africans that it is a tool by Western nations to control their former colonies and countries that are not friendly to the Western world. Thus Russia, like the African countries, is increasingly viewing the ICC as a tool for the extension of Western geopolitical strategic interest. Following the perception of selective enforcement and prosecution of crimes against humanity by the ICC, three African countries, namely, Burundi, South Africa and Gambia have decided to withdraw from the court. To justify its withdrawal, South Africa indicated that the Rome Statute is in conflict with its law, which gives diplomatic immunity to sitting leaders. It should be recalled that South Africa had objected to arresting President Omar al-Bashir of Sudan, as required by the Rome Treaty, when he visited the country despite an ICC arrest order. Russia too has decided to withdraw from the court. To justify the withdrawal, the Russian Foreign Ministry stated that “the court did not justify hopes assigned to it and failed to act as a truly independent authoritative body of international justice.” There is no doubt that other countries might decide to vacate the ICC, strongly believing that it is biased against them. Kenya and Uganda too are in a contemplative stage, wondering whether to quit the ICC or not. The African Union too is worried of the lopsided manner in which African leaders and personalities are targeted for indictment and prosecution.
Should the International Criminal Court be Abolished?
In light of the selective manner in which cases involving crimes against humanity, war crimes and genocide are developed, should the ICC be abolished? The answer is definitely No. Despite the limitations identified above, the ICC is very essential to the development, modernization and institutionalization of democracy, human rights and governance in the world, especially in Africa. While statistically, African political and military leaders, public officials and public figures have been the most targeted for indictment, arrest and prosecution dealing with human rights violations by the ICC, African leaders have not been very helpful to themselves. In other words, the behaviors of some African leaders tend to create the need for the ICC to go after them. It is a fact that more than any other continent in the world, especially in the early part of the twenty-first century, it is in Africa and the Middle East, where political and military leaders try to institutionalize themselves as leaders for life. Some African and Middle Eastern leaders have ruled for more than twenty years and continue to remain in power. Some of the leaders want to create political dynasties by making sure that their children replace them as political leaders after they vacate their public offices. Some have no qualms about changing the constitutions of their countries in order to allow them to run for office repeatedly. Some encourage tribalism and regionalism by filling critical government positions with officials from particular ethnic groups and regions and clamping down on other ethnic groups and regions. Some promote one religion against other religions and marginalize those who do not belong to the chosen religions. Some use political thugs during elections to cause violence and intimidate the opposition.
A considerable number of African and Middle Eastern leaders rely excessively on security crackdowns to maintain themselves in power. As a result, they spend substantially on security and ignore other important sectors of society in their budgetary allocations. In many countries in Africa, Asia and the Middle East, minority ethnic groups are marginalized and discriminated. The behavior of Gambian President Yahya Jammeh clearly demonstrates the view that African leaders are sometimes their worst enemies. After initially accepting an electoral defeat following the presidential election of December 1, 2016, the Gambian ruler changed his mind and refused to step down to allow President-elect Adama Barrow to take over the leadership of the country. Now, members of the Economic Community of West African States (ECOWAS) are threatening to remove him by force if he does not vacate the presidential office voluntarily. The Gambian situation is similar to the situation in Ivory Coast which warranted the international community to use military force to evict former President Laurent Gbagbo from power. Mr. Jammeh’s behavior dampens the spirit of statesmanship demonstrated by former President Goodluck Jonathan of Nigeria and President John Mahama of Ghana who conceded defeat after losing presidential elections to their opponents.
Due to the tendency to abuse power in the continent, in addition to the fact that many African countries have weak governmental institutions, the only institution capable of protecting and speaking for defenseless citizens is the ICC. Therefore, it is absolutely critical for the International Criminal Court to remain in force. Without the ICC to watch over misbehaving political and military leaders in the world, those victimized might not have anywhere to go to seek justice for crimes committed against them. Therefore, it is understandable why many human rights and legal groups in the continent are pleading with South Africa to return to the ICC since it is a major country in Africa.
Thus, while it is possible to accuse the ICC of being biased and selective in enforcing human rights in Africa, on the other hand, it is arguable that the high number of African cases might have been prompted by the high number of petitions and allegations made by African citizens and governments. Thus, it appeared that out of nine cases that the ICC looked into, African governments brought six, the United Nations brought two and the ICC brought one. This indicates that most cases of crimes against humanity, war crimes and genocide that the ICC investigated were instigated by African governments. Apparently, the ICC could be pardonable of the charges that it is biased.
Suggestions for Enhancing ICC Performance
Indeed, it would be a mistake to get rid of the ICC. The world needs it to serve as the sheriff to guard behavior and encourage respect for human rights. However, there are certain measures that could be taken to make the ICC much more representative in enforcing human rights.
- All cases of human rights abuses must be treated equally, regardless of the country or region. This means that if an African political or military leader or public official or public figure is accused of committing crimes against humanity, war crimes and genocide, the individual should be called upon to answer questions in the court of law. Similarly, if a Western political or military leader or public official or public figure is accused of committing crimes against humanity, war crimes and genocide, the individual too should be called upon to answer questions in the court of law. The ICC can no longer close its eyes toward crimes committed by Western leaders and their allies in the Third World while subjecting other leaders to undue threats of arrest and prosecution.
- The ICC should extend its jurisdiction all over the world since under natural law all human beings have natural rights, regardless of whether their countries signed the Rome Treaty or not. This means paying a closer attention to all regions of the world and being willing to take appropriate action if any case of human rights violation is alleged.
- It is necessary for the ICC to investigate clandestine activities that foreign powers engage in through proxy wars that lead to massive violation of human rights in many developing countries. There is no doubt that many conflicts in Africa, Middle East, Latin America and Asia are tactically sponsored by foreign states. Therefore, in conflict situations, apart from arresting military commanders on the ground who are accused of violating human rights, it is necessary to investigate those who sponsor the conflicts, in the first place.
- The ICC need to extend its jurisdiction to enable it to prosecute arms dealers who encourage bloody conflicts so that they can sell their arms and make huge profits. This is very important because causative factors for instability are as important as the symptoms. So far, the ICC seems to be only treating the symptoms while ignoring the causative factors that breed conflict, which ultimately results in the violation of human rights in many developing countries. The United Nations too could be accused of ignoring the causative factors while dealing with the symptoms.
- Additionally, if a foreign power supports a dictator or an authoritarian leader who violates human rights of its citizens, the leaders of the foreign power should also be held accountable as the dictator since the dictator is encouraged through the support of the foreign power to act in ways that lead to the violation of human rights. This is one area of international politics that needs to be explored juridically in international law.
- African political and military leaders should think critically before signing any international treaty or protocol or convention. International or multilateral treaties, protocols and conventions should only be signed after carefully weighing the implications.
- African leaders, from now on, should make the effort to ensure that any proposal for international treaty or convention or protocol includes a language that reflects African cultural perspective before signing such a proposal. Quite often, African political and military leaders sign many bilateral and multilateral treaties, conventions and protocols without paying attention to the cultural and political implications. This is why the African point of view is rarely given credence by the international community before drafting binding resolutions, conventions and protocols that carry the weight of enforceable law.
- The ICC must take proactive steps to eradicate the impression that it is discriminative in the selection of cases involving crimes against humanity, otherwise, it might end up with no credibility and defeat the purpose of its creation.
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