International Criminal Court - Term Paper Example

International Criminal Court Introduction Crime is one of the most serious global social problems. Countries and states develop complex strategies to tackle with the growing scope of criminal activity. International organizations promote humanitarian principles of law and legal policymaking, to ensure that the rights and freedoms of all individuals are not violated. However, even international agreements and complex policies do not always work for the benefit of peace and stability in the world. The International Criminal Court was established to provide assistance in the most complex international crime situations. The ICC is a fully independent institution that operates in accordance with the Rome Statute and aims at dealing with the most serious international crimes, including crimes against humanity. Some of the most famous cases in the ICC included the case of Milosevich and prosecutions against the political and military leaders of Congo and Uganda. Based on the principles of legitimacy, fairness, and justice, the ICC exemplifies a successful attempt to resolve the most controversial crime situations and issues at the supranational level. The ICC: purpose and structure The International Criminal Court (ICC) is fairly regarded as the central and most important body in the criminal prosecution process. It “is the first permanent, treaty based, international criminal court established to help end impunity for the perpetrators of the most serious crimes of concern to the international community” (ICC 2010). Needless to say, the ICC is primarily concerned with the crimes against humanity and their consequences. It is a fully independent organization, which has nothing to do with any of the current international humanitarian unions and organizations, including the United Nations, and operates in accordance with “the norms and principles of the Rome Statute” (ICC 2010). The ICC seats in Hague, Netherlands (ICC 2010). States Parties are the primary source of funding for the ICC. “The court also receives voluntary funding and contributions from national governments and individuals, international organizations, business and other entities” (ICC 2010). According to the ICC, it is one of the most successful legal courts ever created by humanity – it helps to reach and further maintains “international consensus on the most problematic definitions of war crimes, genocides, and other crimes against humanity” (ICC 2010). There is an emerging consensus that impunity in the modern society contradicts the basic principles of humanitarian activity and is simply unacceptable (ICC 2010). Following the end of the civil conflicts in Yugoslavia and Rwanda, the International Criminal Tribunal tried but failed to achieve the purpose of global justice; and it was not before 1998 that a new international court was created to support the humanity in its movement toward stability and peace. The ICC is a complex institutional body, which comprises Presidency, Judicial divisions, Office of the Prosecutor, Registry, and other offices (ICC 2010). “Although the ICC has never been a part or member of the United Nations organization, it maintains productive cooperative ties with the UN” (ICC 2010). Three Judges make up the court’s Presidency, which is primarily responsible for managing, administering, and monitoring all Court’s operations, “with the exception of the Prosecutor” (ICC 2010). “The Presidency is elected by other, fellow judges, for a three years’ term” (ICC 2010). The ICC’s current President is Sang-Huyn Song, whereas Judges Fatoumata Dembele Diarra and Hans-Peter Kaul are the first and second vice-presidents, accordingly (ICC 2010). The Court consists of the Pre-Trial, Trial, and Appeals divisions, with eighteen judges in them (ICC 2010). Each division has six judges, which are responsible for proceedings at different stages of the criminal prosecution process (ICC 2010). In its turn, the Office of the Prosecutor’s main task is to deal with referrals to various crimes, examine and investigate them, before they are sent to the Court (ICC 2010). The Prosecutor is usually elected for a nine years’ term (ICC 2010). Ultimately, the Registry carries the primary responsibility of managing the aspects of the Court’s activity that are not directly related to crime, including administrative services (ICC 2010). The Registrar, the head of the Registry, is Court’s central administrative officer and is elected for a five years’ term (ICC 2010). It should be noted, that the creation and operation of the ICC would have been impossible, if not for its legitimacy and public support. Legitimacy means that a public accepts and recognizes an institution’s and its authority to take decisions (Gastil, Lingle & Deess 2010). The legitimacy of the ICC is established and is incontestable. However, when the basic framework for the ICC was being developed, it was essential that a sufficient number of states and international organizations supported the viability and practical need for such a court (Gastil, Lingle & Deess 2010). The idea and importance of legitimacy date back to the post-war period, when the Nuremberg Military Tribunal turned legitimacy into the fundamental principle of the international court system (Gastil, Lingle & Deess 2010). In its current state, the ICC is nothing but a product of a legitimate but innovative attempt to use public support as the critical element of its continued credibility and efficiency (Gastil, Lingle & Deess 2010). The significance of the public support and its effects on the Court’s operations is difficult to underestimate. Public trust is rightly considered as an essential component of any court’s legitimacy. In case of the ICC, public support and trust works through the international, unchangeable consent of numerous democratic states regarding the need for and importance of the court (Gastil, Lingle & Deess 2010). Nevertheless, not everything is perfect with the ICC: many countries and governments are still in their way to ratification (Gastil, Lingle & Deess 2010). To win the support of the United States would mean to make a considerable advance in the expansion of the Court’s influence at a global scale (Gastil, Lingle & Deess 2010). Simultaneously, the ICC must concentrate on dealing with the countries and governments that are believed to be responsible for the crimes that occur on their territories (Gastil, Lingle & Deess 2010). That the ICC relies on the principles of fairness and justice adds value and reinforces its global legitimacy. Procedural fairness and integrity are the basic preconditions for the stability of the court, its operations and future. Gastil, Lingle & Deess (2010) are correct in that the Court’s “legitimacy hangs on its ability to secure the accused’s right to a fair trial” (p.72). That international cases of crime, especially crimes against humanity, are vulnerable to the risks of politicization is a well-known fact. As a result, a permanent court body, which extends its jurisdiction internationally, can promote justice and fairness for all parties of the legal process, including perpetrators and their victims (Gastil, Lingle & Deess 2010). This is one of the reasons why the ICC works like the court of last resort in the global system of criminal justice. Certainly, the legitimacy and operation of the ICC is not without controversy. Much has been written and said about the potential effects of various political processes on the ICC’s decisions. The ICC constantly finds itself torn between the need to pursue the principles of fairness and non-bias and the need to prove to the whole world that its judgments are legitimate and rational. The ICC and its structure were developed on the basis of a continued consensus between several powerful states, which have a potential to influence the court’s capacity to take rational, reasonable, and legitimate decisions (Gastil, Lingle & Deess 2010). It goes without saying that public support and trust alone never suffice to make a court a legitimate body. Rather, a court’s legitimacy, especially in the international environments, favors and predetermines the development of public trust and support toward its activities and decisions. Legitimacy of an international court body, including the ICC, is equally legal and moral. The ICC presents a unique example of how morality and law interact to benefit the whole society. Throughout its brief history, the ICC succeeded in resolving a broad range of the global crime issues. The Milosevich case marked the turning point in the evolution of the court’s legitimacy: since that time, the ICC is considered as the most professional and reliable source of legal decisions against crime. Milosevich, Uganda, Kenya, and piracy As an international legal body and the court of last resort, the ICC deals with the issues and crimes that are of particular concern to the humanity. Several cases from Uganda, Congo, and Sudan are being currently heard before the ICC (ICC 2010). Famous cases at the ICC are not uncommon, and the case of Slobodan Milosevich had far-reaching implications for the future of the ICC. The Milosevich case marked a new stage in the development of the rules and procedures in the International Criminal Tribunal and contributed to the development and implementation of the sound code of procedures and rules for the prosecution of international crimes and violations of the humanitarian law (Boas & Schabas 2003). “The current rules of the International Criminal Court are made of the best elements that were borrowed from numerous legal systems” (Boas & Schabas 2003). Based on the principles of Romano-Germanic prosecution and criminal procedures, “the rules reflect the best the criminal justice and civil law systems have to offer” (Boas & Schabas 2003). It is through the Milosevich case that the discussed rules and procedures were improved and used to promote legitimacy of the court’s decisions. In the meantime, the Milosevich case suggests that the world holds zero tolerance toward crimes against humanity and their effects on the global stability. The Milosevich case was, probably, the most famous and controversial process of the international criminal prosecution after WWII. The case had to teach a good lesson to the dozens of countries that engage in criminal activities against their citizens. Unfortunately, international crimes continue to plague the world, and governments are not always able to refrain from crimes. Recent events in Tunisia, Egypt, and Lebanon demonstrate unprecedented “legal” and “criminal” potential – most probably, the destruction of dictatorships in those countries will lead to new prosecutions and court decisions against their former leaders. Unfortunately, many international issues and crimes remain beyond the ICC’s jurisdiction. The reason is not in that the ICC fails to prosecute international crime situations effectively. Rather, as a court of last resort, the ICC cannot initiate prosecution, unless the case of crime is brought to the court. The situation is particularly complicated to piracy: the tragic effects of pirate attacks and their political and economic consequences are well-documented. The news is overfilled with the discussion of new acts of piracy in African waters. Yet, despite the magnitude of the problem, little is done to tame the pirates and bring them to the international court. Piracy is one of the most problematic aspects of international activity and economic growth: every year, dozens of crew members and ship owners suffer fail victims to pirate attacks (Dutton 2010). Simultaneously, more than ¾ of the world’s goods flow through the sea (Dutton 2010). The danger and implication of piracy for the global stability cannot be overstated. Piracy contributes to military and political instability in the impoverished nations and impedes timely delivery of the humanitarian aid (Dutton 2010). In 2009, Kenya became the first country to be engaged in the prosecution of pirates (Gathii 2010). All pirates prosecuted in Kenya since then had been caught by non-Kenyan forces off the Somalia coast between 2008 and 2009 (Gathii 2010). Notwithstanding the relevance and objectivity of the judicial process, Kenya did everything possible to impose legal protection on the criminal defendants (Gathii 2010). It seems that countries are extremely reluctant to assume the judicial responsibility for the crimes against their ships and crew members (Dutton 2010). African nation-states are doing nothing to guarantee that pirates who commit violent attacks on ships and their crew members are arrested, prosecuted, and sentenced in accordance with the international law (Dutton 2010). The most frequent causes of legal inactivity include the absence of a consistent legal basis, the absence or lack of sufficient experience in international prosecution, as well as mounting concerns regarding the impartiality of judges and the difficulties with using available evidence to prosecute and punish pirates (Dutton 2010). These are just some of the reasons why piracy cases never reach the ICC. The international community constantly fails to bring pirates to justice and punish them for their crimes. The ICC could become a viable solution to the issue of piracy, but the question is why the ICC must deal with pirates and their crimes. The reasons why the ICC must include piracy within its jurisdiction are numerous and varied. To begin with, “piracy fits well within the ICC’s mandate, which provides it with jurisdiction over serious crimes of concern to the international community” (ICC 2010; Dutton 2010, p.201). Simply stated, piracy can be included within the ICC’s jurisdiction, as long as it remains the issue of legal and criminal concern for the whole humanity. Furthermore, piracy demonstrates the features and elements of the crimes which are currently included in the ICC’s jurisdiction – these include kidnapping and murders, violence and hostage-taking (Dutton 2010). All these instruments of crime “are used to commit crimes against humanity, genocides, and war crimes, which the ICC currently deals” (Dutton 2010). Eventually, the ICC has the right to obtain jurisdiction over the crime, if the country or nation-state responsible for the crime or having jurisdiction over it is unable or unwilling to deal with it (Dutton 2010). National prosecutions for piracy have no regularity, and the ICC could help to close the gap of impunity in regards to piracy (Dutton 2010). It should be noted, that the ICC has everything needed to make such prosecution effective, reasonable, legitimate, and fair. The current ICC’s infrastructure can be easily adopted to meet the needs of piracy prosecution (Dutton 2010). Given its effects on stability and the consequences for the property and personal freedoms and rights of the victims, piracy must become the issue of the top concern for the ICC. These jurisdiction issues in piracy crimes suggest that politics and political regimes often play a critical role in how crimes and criminals are prosecuted and punished. In case of universal jurisdiction, the issue of politics and political considerations are of the utmost importance to the humanity. Politics exemplifies one of the most serious barriers to the fight against impunity (Langer 2011). Countries and nation-states are increasingly reluctant to deal with the defendants, whose actions bear heavy consequences on the international political and economic relations between countries (Langer 2011). Piracy is an international crime, as well as the crimes against humanity similar to those committed by Milosevich. However, none of the countries is willing to assume responsibility for prosecuting and punishing defendants for serious crimes. In this situation, when jurisdiction and prosecution do play a critical role in the development and evolution of the international political relations, the ICC is the only possible way to breach the barrier of impunity and impose the atmosphere of legal justice. The ICC is a fully international organization, which has no direct political interests but pursues the goal of bringing international criminals to the court. Piracy or any other issue does not really matter, as long as it affects the future of the humanity and the prospects for global peace. In its current position, the ICC must be more active in its striving to put impunity of pirates and international criminals to its end. Conclusion The International Criminal Court is an independent organization, established to help “deal with the perpetrators of the international crimes that affect the humanity” (Dutton 2010). The ICC’s jurisdiction currently includes crimes against humanity, war crimes, and genocides. “The ICC is not a member of any political organization and receives funding and voluntary contributions from individuals, governments, international organizations, and business entities” (Dutton 2010). The structure of the ICC comprises Presidency, Judicial divisions, Office of the Prosecutor, and Registry. The case of Milosevich was one of the most famous and, simultaneously, problematic prosecutions in the history of the ICC. Simultaneously, many international crimes remain beyond the ICC’s involvement. Piracy poses a serious challenge to global stability and peace. The ICC has everything needed to include piracy in its jurisdiction and must be more active in its striving to put impunity of international perpetrators to an end. References Boas, G & Schabas, W 2003, International criminal law developments in the case law of the ICTY, Martinus Nijhoff Publishers. Dutton, YM 2010, ‘Bringing pirates to justice: A case for including piracy within the jurisdiction of the International Criminal Court’, Chicago Journal of International Law, vol.11, no.1, pp.197-240. Gathii, JT 2010, ‘Kenya’s piracy prosecutions’, The American Journal of International Law, vol.104, pp.416-437. ICC 2010, ‘About the court’, International Criminal Court, [online], accessed from http://www.icc-cpi.int/Menus/ICC/Structure+of+the+Court/ Langer, M 2011, ‘The diplomacy of universal jurisdiction: The political branches and the translational prosecution of international crimes’, The American Journal of International Law, vol.105, no.1, pp.1-50. Read More