Development of the International Criminal Court - Essay Example

INTERNATIONAL CRIMINAL COURT College INTERNATIONAL CRIMINAL COURT Introduction The international criminal court is a permanent tribunal that was formed back in 2002 by the Rome statute to death with a wide range of criminal issues in the international arena. The ICC is based in Hague with over 122 countries who have subscribed to the statute of the court and about 31 still in the process of registering. The ICC was formed to handle issues including genocide, crimes against humanity, war crimes and the crime of aggression, which have for long affected various countries. The reason for the formation of the court was that the increase in the number of crimes that national courts have been unable or uncomfortable to handle due to the complexity of dealing with sensitive crimes. Since its formation, a controversial argument has surfaced as many people feel that it is a worthless body that should be disbanded. However, it is clear that this body is more efficient than non-permanent international tribunals and that it is important in international peace keeping, prosecuting state officials and deterring future crime within the international scope. Although there is an argument that the permanent international criminal court is not essential, this essay will proof the necessity of the ICC to the world’s current situation. The focus of this essay is to identify the development of the ICC and the logic behind its formation. Also, the essay will identify the problems of the non-permanent tribunals such as the international criminal tribunal for the former Yugoslavia (ICTY) and the international criminal tribunal for Rwanda (ICTR) that were formed in response to arising matters of international concern. Finally, the essay will focus on the various weaknesses of the ICC and its importance to support the idea that irrespective of its weakness, it is clear that the ICC is a necessary body that can be used to handle international criminal issues. Development of the ICC in Favour of Its Establishment The formation of an international criminal court is an issue that drew attention since the early twentieth century. In 1919, a seating during the Paris Peace conference in 1919 addressed the issue of setting up an international criminal court to handle international crimes. The main concern was that it was difficult for the local national courts to judge political leaders who had fuelled war within their countries leading to human genocide. The issue was raised more frequently including in the Geneva meeting that took place in the year 1937, when the leaders settled on a permanent international court that would handle issues related to international terrorism1. During the time of the World War II, the UN suggested the need of commission an international body that would see such countries as Germany that subjected nationalists to torture in the Nazi camps judged fairly.2 From this point of view, it is clear that the formation of an international criminal court was a topic that had been discussed comprehensively and a necessity whose time had arrived. Some complex cases such as when the state leaders committed crime among humanity were hard to handle locally and there was a need to form an oversight body. Whereas there were myriad solutions to the problem of international crimes, it was still evident that there a need for the formation of an international court. Evidently ad hoc tribunals such as the ones formulated to handle the crimes against humanity in Rwanda and Yugoslavia were disbanded as soon as the cases were overheard3. After the formation of these non-permanent international tribunals, the international law commission emphasized on the need for the ICC to ensure that such issues are handle as soon as they arise4. The major advocates of the ICC were some of the international conflict handlers such as Benjamin Ferencz who investigated the Nazi war crimes after the Second World War. He authored a book “defining international aggression” which was advocated for an ICC to handle cases that went across the state boundaries. In 1989, the Prime Minister of Trinidad and Tobago expressed that there was need for an international oversight body to handle the problems of drug trafficking that was becoming a big problem in the state. This kind of support of support for the formation of the ICC was a result of the various challenges that the local states were experiencing in handling difficult problems. During the meeting of negotiation held by the national assembly a great percentage of the states supported the formation of the ICC. Eventually, the Rome statute of the ICC was discussed in the Rome in 1998 and the idea won by a majority of over 90 per cent of the participating members. Some of the countries that opposed the formation of such a court included the United States, Iraq, Yemen, Libya and Qatar. The great support for the ICC underpins it successful adoption by majority of the countries who participated in the official launch of the tribunal in 2002. The purpose for the formation of the ICC is highlighted in the four mechanisms of jurisdiction stated by this law. First, the party accused had to be a participant of the ICC and must have consented to the Rome Statute. Secondly, the condition for handling the issue would be that the crime occurred between two countries where one country is a party. Also, any cases referred to the court by the United Nations State Council would be admissible in ICC. Lastly, any country that would accept to the jurisdiction of the court despite being a member would be granted the right to be heard. Since the year 2002, the ICC has handled a wide range of cases relating to human genocide, crimes against humanity and other war crimes. The reasons for the establishment of the court and its performance since its formation points out that this body is efficient in handling international problems that are beyond the non-permanent tribunals and local courts. Problems of Non-Permanent Tribunals The non-permanent international tribunals are ad hoc tribunals that were formed during the pre-ICC period to handle issues of international concern. Some of the popular tribunals is the international criminal tribunals in Yugoslavia and Rwanda (ACTY and ICTR), which were formed after genocides in these countries. While these bodies served the purpose at this time, a wide range of literature has identified gaps that existed in these tribunals and the way ICC formation addressed the problems. One of the problems that existed is that the tribunal was initiated by UN international Security Council that only had fifteen member states in the council. As a result, there was under representation of the states and this resulted to an inefficient where it was impossible for the concerned countries to have a more comprehensive discussion for decision making.5 As a result, the system was inadequate compared to the ICC which has over 122 state members today. Next, the absence of the participatory right is a gap that existed within these ad hoc tribunals. The participatory right concerns the participation of the victims as witnesses against the perpetrators of the crime. While the two ad hoc tribunals played a great role in restoring peace in Rwanda and Yugoslavia, it is clear that they did not address the problems of the victims6. While providing peace is important in the country is crucial, the victims needs goes far beyond this as the results of the crimes have long term impacts on their lives. Victims of crimes against humanity are key witness in such cases since they have experiential information that no one else can access while handling such cases. Therefore, lack of involvement of such key witnesses is a weakness within these tribunals.7 This is the possible reason why there has been a shortage of evidence in the case of Yugoslavia making the ICTY take a very long time in handling these cases. In this regard, it is clear that the non-permanent tribunals have suffered a major drawback in dealing with international crimes, pointing out to the need of a well-structured government jurisdiction structure such as the ICC. Additionally, there has been great criticism of the ICTY excessive spending within the time of handling the cases in their jurisdiction. A number of the UN members have criticized high expenses of the tribunal, which member states of the UN have had to fund to sustain the tribunal. For instance, between 2004 and 2005, the UN members had to raise over $271.8 million to fund the tribunal, which resulted to a wide range of criticism from members of the UN. Also, there has been criticism of over the bias nature of the tribunal due to the fact that over 68% of those tried so far have been Serbs, whereas only a few non-Serbs have been put under jurisdiction.8 Surprisingly, the same criticism has been raised against the international criminal tribunal of Rwanda, showing the inefficiency that has faced these ad hoc tribunals. In comparison the ICC has shown a greater expertise in handling the international crimes. The participation of the victims as the witnesses against perpetrators crime is a key aspect of the ICC that gives it an upper hand in obtaining evidence necessary to judge the case. Since its formation, the body has shown commitment to handle crimes more efficiently in terms of both cost and speed. This has resulted to greater support of the ICC among the public unlike the ad hoc tribunals have come under sharp criticism in handling crimes under its jurisdiction. It is the weakness of the non-permanent international tribunals and the demands a more efficient system of handling the international crimes in the world. The Weakness of the ICC The criticism of the international criminal court has come as a result of the various weaknesses that have been identified during the period of its operation. One of the criticisms that have come up in the recent past is that ICC is a symbol of western imperialism due to its particular concern in handling only problems arising in minor nations9. For instance, there has been criticism of the ICC particular concern to persecute African countries while ignoring more serious criminal cases arising within the superior nations. In the recent past, a number of African countries have applied for withdrawal from the ICC roman statute claiming that the ICC has been biased in handling cases against African countries. In Kenya, Sudan and Rwanda, there has been great opposition against the interference of the ICC and the exaggerated versions of crimes perpetrated in these countries. The African Union has convened numerous meeting to react to the sharp criticism of the ICC from the member countries in the year 2013. Although the ICC has defended itself against impartiality, this criticism raises concern to the credibility of the ICC in handling international crimes fairly. An American think tank, the Heritage Foundation has launched complain regarding the ICC abuse of the rights of people of America. The feeling of this body since its formation in 2001 is that the ICC abuses the constitutional rights which are stipulated in the US Law. For instance, the Americans who are convicted in the ICC have no right to for trial by a jury which is provided in the US constitution. Other bodies such as the Human Rights watch have pointed out that the ICC laws do not conform to the laws of the member countries, which makes it work against the laws of the host nations.10 Additionally, from the American perspective, the ICC is unaccountable due to its subjectivity to international politics, which makes it a subject of criticism deterring the consensus for an effective measure against international crimes.11 The conflict between the ICC and the laws in many countries has rendered it a subject of criticism with the majority of countries questioning its ability to protect the subscribed nations during serious crimes against humanity.12 This is a matter that has raised great controversy with many nations supporting the idea that ICC may be unnecessary body. The narrow powers of the ICC have become a matter of concern due to the evidence of inefficiency in arresting those who have been indicted by the court. While the court has the mandate to indict perpetrators of murderous acts within the regions of its jurisdiction it has no mechanics to arrest the indicted persons. For instance, the court was praised over its efficiency in handling serious criminals such as Thomas Lubanga and issuing a notice to indict them. However, it has been a great disappointment to the public after such indicted members have yet to be arrested. In Sudan, after the indictment of Omar Bashir, the court is yet to initiate the arrest of the Sudanese president.13 Therefore, many analysts have termed the court as “a court without police” which constrains its power to enforce law within the area of its jurisdiction. Judging from this kind of public reactions, it is clear that the ICC can be regarded as inefficient body if those people who have perpetrated crimes against humanity are left free to live among the victims of the crime. Majority of the analysts of the ICC powers have suggested that either the ICC reconsiders its power rationalities or the whole body be disbanded as worthless body. The ICC narrow scope of jurisdiction is another issue that has been raised in its criticism. The works under for jurisdiction mechanisms that constrain its power to only member nations, those nations admitting to their jurisdiction and those that have the UN council may raise concern about. The narrow scope hinders the ICC to reacting to other issues beyond this scope14. For efficiency, the body is expected to handle issues such as the crimes perpetrated by multinational countries. On this note, the ICC seems to ignore a wide range of crimes that demand international attention such drug trafficking across countries that are under its jurisdiction. Therefore, there has been advocacy that the ICC reforms its structure and focus on broader scope of international crime to ensure that it efficiently covers the issues of international concern15. In addition, there has been criticism regarding the ICC long process of handling international issues. The ICC delay in reacting to international crimes, resulting to more deaths of the victims before an intervention measure is taken. Bodies such as the United Nations have reacted more promptly to international crimes in engaging negotiations and ending the war in many countries. Also, the ICC delays a great deal before judging cases filed against the perpetrators of the international crime. Since the crime against children perpetrated by Lubanga, it has taken the ICC more than a decade to provide a judgment. Even after the indictment warrant, the ICC has yet to arrest Lubanga, which is a great disappointment to the Child Welfare committee that was pleased by the courts decision. On this note, the delay in handling international crimes subjects the ICC to a wide range of criticism especially from affected nations. It is the weaknesses of the ICC that has led to the construction of the idea that the ICC is unnecessary expense to its member nations. ICC Importance Although the ICC has been a subject of criticism, it would be unfair to judge is an unimportant body in the managing international crime. Since its formation the ICC has played a great role in handling international crime, preventing future crime in member countries, prosecuting individual members and states officials within different countries. The ability of the ICC to handle a wide range of issues since its formation in 2002 shows that it is an efficient body, whose significance has been witnessed in member countries. One of the crucial roles that the ICC has performed well is its role in international peace keeping and security keeping. The ICC has the mandate to ensure that peace prevails within its member countries by handling any issues arising within them. The peace of country is a priority for any government that is sensitive to the public welfare. Over its history, the ICC has helped to restore peace in many countries and to assure security in the long term among countries that for long been punctuated by war crimes16. In countries such as Uganda, Kenya, the Central Republic of Congo and Sudan, the ICC has worked with its judiciary systems to restore peace. In countries such as Congo, the loss of peace resulted in genocide that ended only after the intervention of the ICC17. In countries such Kenya, there has been cases of political conflicts that culminated in the 2008 post-election violence that saw many citizens from target ethnic groups die. Since the intervention of the ICC, peace has been restored and this is expected to last in the long term. In Uganda, one of its members, the country has enjoyed peace since the court prosecuted major politicians who fuelled crime in the country.18 On this ground, it is clear that the ICC has been efficient in restoring peace within the member countries. Secondly, the ICC has prosecuted numerous state official who were directly involved in crime irrespective of their superior positions in the government. In many countries, leaders have abused their powers by fuelling war among different groups in the country. This has been triggered by political aggression in many countries where leaders use wars as strategies to win or remain in power. It has been a great challenge for local courts to handle such complex matters especially in countries that hold state officials above the law of the country19. The fact the presidents have power above the law of the country, it becomes hard to prosecute them within a local court of law which are directly under him. In addition, local courts are susceptible to corruption especially when it comes to such sensitive matters20. The ICC has prosecuted senior state official such as President Bashir of Sudan, Uhuru Kenyatta of Kenyatta and Lubanga.21 Therefore, the ICC has seen some of senior state officials face the law, something that would rarely happen if the cases were handled within the local courts. On this note, disbanding the ICC would give state officials to commit genocide in the pursuance of state powers. Also, the ICC has played a great role in deterrence of future crime within the member nations.22 In some countries, there has been repetition of incidences of crime against humanity. In countries such as Central Republic of Congo, tribal crashes have been frequent until the intervention of the ICC. The intervention of the ICC helps to put the perpetrators of crime to book to ensure that they do not engage in incitement and actions that fuel animosity among many nations. Since the trials of Kilolo, Babala, Mangenda and Bemba in Central African Republic, the ICC has managed to prevent future crime in Congo, which would have been anticipated was it not for the ICCS intervention. Additionally, the ICC has been involved in intensive investigation of possible crimes in countries that have tension to ensure that such cases do not happen in future. The ICC has been commended for its efforts to garner enough evidence during the trials that it has conducted since its development. The ICC has formed efficient mechanisms to gather evidence from witnesses and victims of crime, acquiring a better platform for the development of evidence against the perpetrators of crime. This has made it possible for the ICC to provide judgment over the accused more promptly as compared to the non-permanent international tribunals that have delayed in convicting the perpetrators of crime23. Of more significance is that the ICC has provided ways of helping the witnesses and victims of crime24. For instance, the ICC progra25m provides immunity to witnesses who testify against their state officials to alleviate them from possible security concerns that may arise after providing such evidence. This way, the ICC has become a more efficient body compared to any other body that has been formed to handle international crimes. From a critical point of view, the ICC is an important body that handles complex problems that would have no solution if the ICC did not intervene26. The weaknesses of the ICC can be attributed to the little enforcement power that it has and the lack of cooperation from its member countries. Therefore, it is recommendable that the ICC be reformed to give it more power to handle the crimes committed against humanity27. For instance, it would be crucial to empower the body to have the power to arrest the state officials who are indicted by the court. This will give it a better framework to operate and the power to provide more realistic solutions to wanting countries. Conclusion In conclusion, the ICC is a necessary body to the world’s current situation despite a few weaknesses that it has shown. The formation and the development of the ICC supports the idea that ICC provides a solution that is beyond the scope of local countries. Since the early 20th century, the general assemble and the international law commission advocated for the formation of an international body that would prosecute state leaders who are often deemed above the local national laws. Other proponents argued that the ICC be formed to handle problems that went across the borders of two countries, making it hard for the two countries to reach an agreement. Also, there was a push for international body that would handle issues such as drug trafficking issues that involved more than one country. The formation of non-permanent international criminal tribunals such as the ICTR and ICTY did not succeed due to the inefficiencies of these bodies. Although the ICC has shown weaknesses in enforcing its laws and in its narrow jurisdiction, it is clear that it has handled many issues that are significant in national transformation. The ICC has been efficient in prosecuting state officials and individuals who have been involved perpetrating genocides and crimes against humanity. This way the ICC has helped stopping and deterring future crime against the public. On this ground, it would be recommendable to reform ICC by giving it more power to enforce its laws and react to international issues more efficiently. Bibliography Akhavan, Payam. "Beyond impunity: can international criminal justice prevent future atrocities?" American Journal of International Law (2001): 7-31. Akhavan, Payam. "The International Criminal Tribunal for Rwanda: The Politics and Pragmatics of Punishment." 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