The International Criminal Court - Essay Example

?Q: Reflecting on the conflicts of interest evident in the progress of the first trial before the International Criminal Court, critically analyse the aims of the ICC against: the context of legitimacy, and; suggestions that the ICC should not aspire to influence peace-building and global governance. 1.0 Introduction The International Criminal Court (ICC) is a product of a century-long search for an international entity that could bring perpetrators of crimes that cannot be handled by a national court to justice, for one reason or another. The ICC, however, is not merely a tribunal that tries specific crimes, but an international entity that carries with it the responsibility of promoting peacebuilding and perpetuating global governance as part of an international coterie of entities that the responsibility is attached to. The ICC therefore, is not merely a judicial body but also a political entity. Notwithstanding the long years put in the preparation of the ICC, this Court is relatively young having come into force only in 2002 and as such is still grappling with legitimacy issues. This was highlighted in the case of Lubanga Diylo, a case that stem from a referral of the Democratic Republic of Congo. The trial for this case has been delayed by controversies involving conflicts of applicable provisions of procedural laws of the Roman Statute and ICC’s very own. In addition, the case revealed a disjointed defence system inherent in the procedural provisions of the ICC regulations that resulted in the potential miscarriage in the administration of justice on one hand, and jeopardising the investigative capabilities of the Office of the Prosecutor on the other. The Lubanga Diylo case, in short, had put in the balance the legitimacy of the ICC as well as into question its role in peacebuilding and global governance. 2.0 Background: History of the ICC The first person to propose the creation of an international tribunal was Gustave Moynier, who co-founded the International Committee of Red Cross. Moynier’s proposal was engendered by the Franco-Prussian war where atrocities were committed by both sides amidst rampant violations of international treaties. The reception to the proposal, however, was lukewarm and it was not until after WWI that the idea was again broached.1 In a Paris conference attended by policymakers in the different parts of the world, the Allied Commission on the Responsibility of the War and on the Enforcement of Penalties (Allied Commission) was established and was tasked to conduct an extensive investigation as to what body should be properly charged with war crimes. The Commission recommended the creation of an international tribunal that would try certain war offences, to be composed of the representatives of countries who won the war. However, the tribunal established was merely ad hoc and not permanent. Similar tribunals were established in the wake of WWII to try the war criminals, but the ensuing Nuremberg Tribunal and Tokyo Tribunal were both of ad hoc nature.2 It was during the Genocide Convention of the United Nations that the idea of a permanent international criminal tribunal took shape. Draft statutes were consequently prepared by the International Law Commission (ILC), but these efforts were hampered by the difficulty in coming to an accord on how to define aggression. In 1989, Trinidad and Tobago and several other Caribbean and Latin American states and NGOs petitioned for the continuation towards efforts to establish an international criminal tribunal to try drug trafficking cases. In the 1990s, events in Eastern Europe and Africa necessitated the establishment of ad hoc tribunals to try crimes against humanity, war and genocide. Finally, the ILC submitted its full report on the establishment of the International Criminal Court to the UN General Assembly in 1994. The UNGA subsequently created the AD Hoc Committee on the Establishment of an International Criminal Court to study further the various issues in the ILC’s final draft and the Preparatory Committee on the Establishment of the ICC to prepare a consolidated text.3 Between 15 June to 17 July of 1998, some 160 countries met and the NGO coalition in Rome to thresh out and negotiate the details of the Rome Statute of the ICC. At the end, 120 states approved and voted for its adoption, 21 states abstained and seven states, i.e. United States, China, Israel, Iraq, Libya, Yemen and Qatar, voted against it.4 A minimum of 60 ratifying states were required for the Statute to take effect and in 11 April 2002, the 123 article statute obtained that number.5 On 1 July 2002, the Statute came into force. As of today, the Statute has 139 signatories and 114 ratifications, the state of Moldova being the 114th in October 2010. 6 Of these 114 countries, 31 are African states, 15 come from Asia, 18 are Eastern Europeans, 25 are Latin American and Caribbean countries and the remaining 25 states come from Western Europe and other states.7 3.0 The Primary Features of the ICC Although the ICC was created at the behest of the UN GA, it is not strictly considered part of the UN. Nonetheless, the Security Council (SC) enjoys the prerogative to refer cases as well as halt the investigation of cases in the ICC. Aside from a UN referral, there are two other ways of triggering an ICC investigation: self-referrals or referrals by State Parties to the OTP, and; an investigation proprio motu by the ICC Prosecutor. In all cases, the ICC can intervene only if the supposed crime had been committed within a State Party’s territory or the crime was allegedly committed by a national of a State party. The legal basis of the UN-ICC relationship is underpinned by the Negotiated Relationship Agreement signed between them in 2004. Unlike, however, the International Court of Justice (ICJ), which is a primary organ of the UN, the ICC is treaty-based and has jurisdiction over individuals. Moreover, it is a permanent court with broader powers unlike previously established tribunals like the International Criminal Tribunals for the Rwanda, the former Yugoslavia, East Timor, Sierra Leone and Cambodia.8 The ICC has jurisdiction only over three specific crimes. Under Articles 1, 7 and 8, the ICC has jurisdiction to investigate, prosecute and impose punishment only in the crimes of genocide, crimes against humanity and war crimes, respectively.9 The crime of aggression, however, has not yet been clearly defined, which is an important pre-requisite under § 121 and 123 of the Statute before the ICC can have full jurisdiction of such cases. 10 The underpinning principle of the ICC is complementarity – that is, it does not act to substitute national courts but can enforce jurisdiction only over nations when the latter’s national courts cannot or refuse to exercise authority over the crime itself. Such a scenario is possible when the agents of the state are the defendants or the state itself is unwilling to prosecute the case. An example of the latter case are when the Somalian judicial system collapsed and when the Cambodian courts were destroyed by Pol Pot’s government.11 Put another way, a case cannot be brought before the ICC if a State with jurisdiction over it has conducted or is conducting a genuine investigation or prosecution of it. Similarly, if another court has already tried the accused for the same act under internationally recognised norms of due process, the ICC will also deny it if it is brought before it. 12 The procedures that are being implemented by the ICC are all carefully crafted to create a balance among various considerations that include the following: as an independent international tribunal that disposes justice efficiently and without bias; the obligation and right of State parties to prosecute crimes committed within their respective jurisdiction; the rights of the victims to seek and be given redress for the crimes committed against them; the rights of the accused, and; the obligation of the SC to maintain international peace and security.13 From the preceding discussion, it can be construed that the ICC jurisdiction has three components: temporal; personal, and; subject-matter. The ICC jurisdiction is not retroactive and is tied to the date 1 July 2002, which is the date it came into force. The Court is barred from accepting cases that occurred prior to the date it came into force. However, on cases where a Member State ratified or acceded to the Statute only after 1 July 2002, ICC can only obtain jurisdiction to cases that occurred after the Statute is enforceable as to that particular State. An exception to this principle is when the State itself declares ICC jurisdiction over the crime in accordance with Article 12(3) of the Statute. On the other hand, ICC jurisdiction is not also subject to any statute of limitations. Moreover, ICC jurisdiction attaches only to natural persons, 18 years old and above, and excludes juridical persons such as corporations. The official capacity of a person is not an issue in determining ICC’s jurisdiction. Finally, as earlier stated, the ICC has jurisdiction only on three types of crimes: genocide; crime against humanity, and; war crimes.14 4.0 Delays in the First ICC Trial: The Lubanga Dyilo Case In 2003, the President of the Democratic Republic of Congo (DRC) wrote to the Prosecutor of the ICC, Luis Moreno Ocampo, referring a number of crimes allegedly committed and being committed within the DRC jurisdiction.15 That same year, Ocampo announced his decision to open ICC’s first investigation into the DRC after monitoring the events in that country from July 2003 specifically in the Ituri region. The DRC conflict which had begun in the 1990s resulted in thousands of deaths, but since the ICC does not have a retroactive jurisdiction, the Prosecutor can only investigate crimes that occurred after the Statute took effect.16 On 11 March 2005, Thomas Lubanga Diylo, head of the political and militia organization Union of the Congolese Patriots (UPC), was accused of genocide and crimes against humanity and was placed under house arrest by President Kabila of DCR. The UN also accused Lubanga of another crime related to the ambush of some members of UN peace keeping force from Bangladesh. Several weeks later, another warrant of arrest was issued against Lubanga for murder, illegal detention and torture. On 13 January 2006, the ICC Prosecutor acted to avert the inevitable release of Lubanga from detention by requesting the ICC Pre-trial Chamber to issue an arrest warrant justifying the turnover of Lubanga to the ICC authorities. Almost a month later, said ICC department issued a warrant of arrest for Lubanga for the crimes of recruiting, enlisting, and deploying child soldiers in combat.17 A smooth resolution of the Lubanga case was, however, interrupted by controversies in the procedural aspects of the trial causing the suspension of the initial schedule of its trial in 2008. Several days before the trial is to commence, the Trial Chamber ordered a stay of the proceedings on the ground that the Office of the Prosecutor (OTP) has not provided the defence with evidence that may help in the acquittal of the accused. The OTP is barred by the Statute from revealing evidence that was sourced from information providers on a confidential basis as these evidences are meant to be used only for the gathering of more evidence. Nonetheless, the order of the Trial Chamber was upheld by the Appeals Chamber on the ground that the failure to provide the evidence in issue will hamper the accused from being given due process in the Court. Fortunately, the issue was resolved and the order to stay was lifted when the OTP agreed to submit the potential exculpatory evidence to the Trial Chamber, and several measures were agreed to ensure to keep the confidential nature of the evidence without depriving the defence of its use. Finally, on 26 January 2009, the initial trial of the case pushed through. 18 5.0 The Aims and Legitimacy of the ICC in the Light of the Lubanga Case As earlier discussed, the ICC operates largely as a balancing act of the different forces that affect and influence it. The ability of ICC to successfully balance all of these competing forces significantly impact on its legitimacy as an international judicial body. From a political perspective, the underpinning legitimacy of the ICC stems from the fact that it is treaty-based, that is, states voluntarily placed themselves under the jurisdiction of the ICC through ratification of the Statute in their respective states. Nonetheless, it needs to prove that it dispenses power fairly and equally to all beyond the influence of western coercion and military power to reinforce its legitimacy. It must exhibit independence unfettered by pressure and manipulation of the more powerful countries. Finally, it must be perceived as an able and competent tribunal that respects both the rights of the victim and the accused, whilst at the same time act in keeping with its function to help maintain peace and order in the world. 19 The Lubanga case illustrates the procedural and structural flaws in the ICC stemming from the competing provisions of the Rome Statute and the ICC Rules of Procedure and Evidence. This conflict can gravely affect the world’s perception of the ICC’s legitimacy as it reflects a lack of fairness and due process in the trial proceedings. Under Art 54(3) (e) of the Rome Statute, the OPT is allowed to gather information and data, on a confidential basis, for the purpose of building evidence for its potential case, but forbids the Prosecutor from revealing the information confidentially gathered to anybody including the defence without the consent of the informant. In the Lubanga case, the Prosecutor has received more than 200 documents, almost of which are said to have potential exculpatory use for the defence. The Prosecutor’s refusal to share them with the defence was largely based on the aforementioned Statute provision. 20 Moreover, the Lubanga case reveals the defective and disjointed defence system within its procedural structure, which not only threatens to delay proceedings, but also more significantly affect the fair administration of justice. At the heart of this disjointed defence system is the confusing and overlapping functions of the Office of the Public Counsel for the Defense (OPCD) and the Registry.21 The Registry, along with the Presidency, Judicial Divisions and OTP, is a major organ of the ICC and is tasked with the “non-judicial aspects of the administration and servicing of the Court.”22 Among the services provided by the Registry is the promotion of the rights of the defence, such as the facilitation of confidentiality, assistance to defence counsels, assistance to arrested individuals and the accused in obtaining counsel and advising the OTP and the Chambers on defence-related matters. On the other hand, the OCPD, which is largely independent from the Registry except for administrative purposes, also functions to help and assist the defence during the initial part of investigations, gives assistance to both defence counsel and accused, can act as ad hoc counsel or duty counsel if so appointed by the Chamber or a suspect, respectively and offers mediation in the event of counsel and suspect dispute. 23 As can be gleaned from their respective functions, there is a high probability and potential of conflict between the Registry and the OPCD that is exacerbated by the lack of clear definition of their respective functions that may eventually result in the disadvantage of the defence in the long run. Complicating the potential conflict between the Registry and the OPCD is the nature of the Prosecutorial power and prerogative that allows the OTP to investigate cases even without an identifiable suspect. The Statute provides that even in this stage, there are certain aspects that warrant the appointment of a defence counsel. When such an issue crops up, the Pre-Trial Chamber complies by appointing an ad hoc defence counsel, who are lawyers volunteering their services under the Registry, limited for that particular issue, but such ad hoc counsel has no power to assert for any future accused. At the same time, the Chamber may also appoint a counsel from the OPCD to handle another issue during the investigation stage. A situation like this often presents potential conflict because these counsels might pursue varied and conflicting strategies. This potential conflict-laden situation can be made more complicated with the ability of non-ICC affiliated counsels to be appointed as defence counsels, a power laid down under Regulation 76(1).24 These rather convoluted defence system of the ICC was evident in the Lubanga case and underpinned the problems that led to the eventual confidential exculpatory evidence controversy. In 2005, for example, the Pre-trial Chamber I appointed an ad hoc counsel during the collection of forensic evidence in the DRC to represent the general interests of the defence. The following year, it appointed another ad hoc counsel as a representative of the defence in the application of victims that wanted to take part in the DRC investigations. Both appointments were made under Regulation 76, but in 2007, the Chamber allowed the OPCD to represent the under Regulation 77. The controversy began when OPCD invoked said Regulation to demand that the previously appointed individual ad hoc counsels provide it with copies of all documents in their hands. This was rejected by the Pre-Trial Chamber I on the ground that the OPCD has a limited function and was not supposed to continue the function of the previously appointed ad hoc counsel tasked with responding to victim applications. OPCD, however, insisted on its position and eventually, the Chamber ruled allowing the former ad hoc counsel to voluntarily contact OPCD. The OPCD subsequently requested the OTP with information in its possession that it deemed would mitigate or exculpate the accused from the allegations of the victims on the ground that it lacks the powers of investigation granted to the latter, making it totally dependent on the victims’ testimonies and the OPT’s investigations. The OPT refused on the ground that, among others, the OPCD was not entitled to exculpatory materials.25 Another structural defect inherent in the ICC that affects due process and factors in the perception of legitimacy of the Court is the logistical gap between the OPT and the OPCD. The OPT does not only have the power to investigate, but is also well funded and well-staffed as opposed to the understaffed and underfunded OPCD. This is specially glaring when individuals bring their cases to the ICC and the OPCD, in accordance to its mandate, is tasked to provide guidance and assistance to defence counsels who are volunteer lawyers from all over the world and who are usually unaccustomed to ICC practices.26 The Prosecutor’s argument against disclosure of exculpatory material is not without substance considering that the confidential nature of information and data provided to the OPT is meant to protect the information giver and thus, encourage the public in cooperating with it. The minute the OPT violates the protection engendered by the confidentiality, potential confidential informants might be discouraged from cooperating with the OPT in the future. The implication of this at present is that the failure of the ICC to resolve the issue to the satisfaction of the informants may affect the resolution of the two other cases now in the ICC that also involve DRC. 6.0 The Aims of the ICC and its Role in Peacebuilding and Global Governance In 2005, the UN Security Council referred the case of Darfur, Sudan to the ICC through Resolution 1593 under the authority of Chapter VII of the Charter of the UN. As a result, the ICC obtained jurisdiction over Sudan, which is a non-State Party, because of such referral. The UN referral validated and highlighted the ICC’s role in promoting post-conflict peacebuilding, a perspective expressly reinforced by Darfur Consortium, which is a group of NGOs in Sudan.27 Peacebuilding refers to efforts towards social integration or a state of society where human rights violation is minimised if not totally eliminated and where the rule of law is supreme.28 The creation of the ICC is recognised as an effort towards peacebuilding because justice is deemed a prerequisite for peacebuilding and ultimately state-building. The ICC, like other international courts such as the ad hoc courts established to try crimes in Rwanda and Yugoslavia, is deemed a peaceful alternative for a Chapter VII solution under the UN Charter. The task of peacebuilding assigned to the ICC has both merits and disadvantages. An international tribunal that is perceived as fair and just and dispose of cases with impartiality eventually aid in peacebuilding because it makes a distinction between the guilty and the innocent and imposes punishment on the former and reinforces/validates the rights of the latter. These strengthen state institutions, stabilises governments and makes life better, in general, for citizens.29 On the other hand, there are reservations as to the effectiveness of international courts in effecting justice within troubled jurisdictions. Historical accounts of experiences of ad hoc tribunal show that there is resistance in implementing judicial orders and issuances. A seeming lack of political will seem to exist in respect of local authorities or even of peacekeeping forces tasked with serving judicial processes, such as warrants of arrest, to the accused.30 In the case of Northern Uganda, for example, the intervention of the ICC has proved to be more of a hindrance than a catalyst to peacebuilding. There is difficulty, for example, in taking the rebels into custody although the Sudan government has shown a willingness to cooperate with the ICC, but is being hindered by internal conflicts that bar it from realising the arrest. Moreover, the presence of the ICC in the region is threatening the success of the negotiations between the government and the rebels for an amnesty, with the prosecution intention of the ICC coming in conflict with the solution of forgiveness of the government. This has led one NGO to comment that the presence of the ICC in the region has rendered the prospect of negotiated peace bleak. Another argument to the peacebuilding capacity of the ICC is that standard justice solution offered by a court is sometimes inadequate to resolve the underlying reasons of a conflict, such as when the conflict is rooted in tribal differences. In such a case, the intervention of the ICC to try one tribe against another tribe may be perceived as a persecution of that tribe compounding the never-ending cycle of violence and war. In addition, the primary obligation of the ICC as a judicial tribunal is to investigate and prosecute rather than resolve conflicts and the use of such prosecutor might sometimes come in the way of obtaining peace as there are cases when conflict resolutions measures are more suited to a conflict than outright punishment of perpetrators. Moreover, while peacebuilding necessitates reconciliation, ICC’s tools such as arrest warrants discourage it. Finally, any peacebuilding effects of the ICC are limited by the principle of non-retroactivity where crimes that took place prior to the effectivity of the Statute are naturally included from its ambit.31 The creation of the ICC was a culmination of the efforts of the global civil society consisting of NGOs, country delegations and other international organisations. These international organisations and other members of the international community saw in the creation of an international criminal court a means of institutionalising a post-Westphalian international regime from a global governance perspective.32 Global governance is a term defined as “the combined efforts of international and transnational events”33 for the purpose of resolving issues that affect a region or the world in general. Other concepts included in the term ‘global governance’ include: “a system of rule at all level of human activity; the sum of ways in which individuals and institutions manage their common affairs via cooperative action, and; the establishment of rules that guide interaction.”34 The ICC is naturally a product of global governance thinking, which is step with the emerging global order that leans towards a more transnational form of authority and farther away from the notion of state responsibility. The ICC serves as one of the multiples agencies that impose authority in today’s ‘non-statecentric’ world.35 It has been argued that global governance “not only institutes certain forms of subjectification, discipline and compliance…it also tends to reduce politics to policing.”36 This must be true considering that the word ‘governance’ carries with it the connotation of authority, which implies that the ICC must have a strong enforcement mechanism for its issuances and orders to be followed. The critical issue in such a scenario is whether this implies the adoption of rigid set of rules, which may leave it unable to adopt flexible political strategies that allow it to function as a peacebuilding entity and such other functions that entail a balancing of its priorities under certain circumstances. If it does not adopt rigid set of juridical power, it may open itself wide to external political pressure. Whether the ICC accepts itself as an entity of global governance, however, the fact is that it a product of a global governance perspective and a creation of organisations that had in fact created it for such purpose. 7.0 Conclusion The ICC operates on many levels and with multiple functions. On one hand, it acts as an international court that investigates and dispenses justice in cases involving the crimes of genocide, crimes against humanity and aggression. On the other hand, it acts as a complementary to national courts, which has primary jurisdictions on said crimes occurring within their respective territories under the principle of sovereignty. These are not the only roles and functions of the ICC however. In addition to the above, the ICC must validate the rights of the victims by giving them justice from any form of oppression inflicted upon them, whilst at the same time ensuring that the rights of the defendant are upheld and he or she is given a fair trial. ICC’s functions and obligations do not end there, however. In addition to all of the above, the Court is tasked with a function that is not shared by other judicial bodies like it. On the strength of the nature and circumstances of its creation, the ICC is additionally charged with the obligation of assisting peacebuilding and global governance. The case of Lubanga Diylo, the first ICC case that was supposed to go to trial proper in 2007, showed the flawed character and nature of ICC’s creation that seriously put into question its legitimacy. The case exposed the potential breach of due process, which the Court owes to defendants with the conflicting nature of the Statute and the ICC Regulations. On the other hand, shrugging off the statutory basis of the denial of potential exculpatory evidence by the OPT also jeopardises the investigation of cases as it may discourage potential informants from coming out and give evidence necessary for the OPT to build their case on. 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Politicizing the International Criminal Court: The Convergence Of Politics, Ethics, and Law. Rowman & Littlefield. Shawki, N. & Cox, M. (2009). Negotiating Sovereignty and Human Rights: Actors and Issues in Contemporary Human Rights Politics. Ashgate Publishing, Ltd. ‘The State Parties to the Roman Statute’ International Criminal Court http://www.icc-cpi.int/Menus/ASP/states+parties/ Read More