The International Criminal Court - Jurisdiction, International Politics, Role of Nongovernmental Organizations - Case Study Example

Student’s Name Instructor’s Name Class Name Date when due A Report of International Criminal court Introduction The International Criminal Court is the first, permanent and treaty based criminal court of international stature. The court was established to enhance the rule of law and to see to it that the gravest crimes of international nature do not go unpunished. The court is governed by the Rome Statute of the International Criminal Court, which was established on 17th July 1998. The Rome statute was adopted by 120 states while participating in a United Nations Conference of Plenipotentiaries in the establishment of an International Criminal court. The Statute was put into force in January of 2002. It has been about ten years of operations since the international Criminal Court started its operations in The Hague, Netherlands. This report will explore on the relevant international legal and normative frameworks, how the court affects international politics, the major actors and their vested interest and the current state of affairs surrounding the court in the context of international politics. The report will also give recommendations on how major challenges and obstacles surrounding the court can be addressed. Jurisdiction of the court The jurisdiction of the court is granted by four mechanisms, these include; when the accused person is a national of a state party that has ratified the Rome Statute, where the alleged crime happened on the territory of a state party, where the UN security council refer a situation to the court, and when a state that is not a party to the Rome Statute invites the court (Bantekas, Ilias, 10). The International Criminal Court acts as a complement of a national judicial system. It only exercises its jurisdiction as and when the local judicial mechanisms of a country are either unwilling or unable to prosecute heinous crimes that have occurred in her territory. The Rome statute grants the court the jurisdiction to try four crimes that are thought to be the most serious crimes that affect the international community. These crimes are; Genocide, war crimes, crimes against humanity, and aggression. The Rome Statute defines each of the mentioned crimes except that of aggression. The court is not allowed to prosecute any crime of aggression before 2017, as well. Many countries wanted drug trafficking and terrorism to be included as crimes within the court’s jurisdiction, but there was no consensus. The member states failures to agree on a universal definition of terrorism, and they also thought drug trafficking crimes would overstretch the limited resources of the organization (Nagle 339) International politics The court has been accused of playing international politics for the last few years. Many people, especially Africans, feel that the court is being used as a tool of the Western imperialists. There have been accusations that the court only targets the leaders of weak and poor nations, and constantly ignoring crimes being committed by leaders of powerful nations. The African leaders have maintained that the court has disproportionately focused on Africa to an extent that all the ongoing eight cases in the court are from African states. Analysts are challenging the court in this regard. They argue that the court purports to have a global mandate, yet it seems as if it focuses only on African states (Van 854). In the case of Kenya, for example, the ICC has been a major issue as far as the politics of the country are concerned. It is worth noting that three Kenyans are currently facing trial for crimes against humanity committed during the 2008 post election violence in the country. Among the three suspects, is the Kenya’s president and his deputy. The two were indicted in 2010 before they held their current offices as president and deputy president respectively. After they were named suspects, and before the 2013 elections, there was a lot of debate on whether the two would vie for the presidency. At one time the then US assistant secretary of state for African affairs Johnnie Carson warned Kenyans that “choices have consequences”. Mr. Carson added that “we live in an interconnected world and the choices that Kenyans would make in the forthcoming elections would have repercussions internationally.” He meant that if Kenyans would elect ICC inductees as their president and deputy, then the diplomatic ties between the country and the United States would sour (Holvoet and Paul 235). Nevertheless Kenyans went ahead and elected Uhuru Kenyatta and William Ruto as their president and deputy president respectively, despite them being suspects at The Hague based court. Here we see the attempts of powerful countries trying to use the ICC as a tool to influence international politics. The United States and other western powers have been on the forefront supporting the proceedings of cases involving African States, yet they are not themselves signatories of the Rome statute (Callaghan 555). What could be the motive behind? What are their vested interests? The ICC has been receiving a lot of criticism in regard to the court’s perceived involvement in international politics. In May of this year (2013), the president of Rwanda said the ICC is a political court, and it is made up of Africans and poor countries that did not have full knowledge of what they were signing for. He added that Rwanda will not support a court that condemns only the crimes committed by some but not others. He added that the ICC has been imposing itself on the democratic processes or the sovereignty of the people, citing examples of Libya and Kenya. (Penrose, Mary). Role of Nongovernmental Organizations In 1980s nongovernmental organizations began to push for a way to punish international crimes against humanity, genocide, war crimes, etc. This shifted from being a responsibility of international legal experts to involving human rights activists. Through the advocacy and championing of NGOs, the process of formation of the ICC was fast tracked. NGOs work closely with the ICC; they constantly monitor the actions of the court, ensuring that every work done on behalf of the court fulfills the objectives and responsibilities to the civil society. The NGOs coalition for the International Criminal Court (CICC) serves as an umbrella for NGOs to properly coordinate with one another in similar objectives related to International Criminal Court. Members of CICC ascribe to 3 principles, which allow them to work under one umbrella as long as their goals match them. These are; 1) to promote worldwide ratification and the adoption of the Rome statute, 2) to maintain the integrity of the statute, and 3) to ensure that the international criminal court will be as fair and independent as possible. However, members of CICC do not interfere with the work that is exclusive for the court, but rather they focus on broader causes such as issues of human rights, victims’ rights and rule of law, gender rights, conflict mediation and peace (Bantekas et al. 11). The International Criminal Courts mostly depend on the NGOs to reach and interact with the locals. However, NGOs are also a source of critics of the court, but the court acknowledges that NGOs have to pursue their agendas that they have been working for since 1990s. Nevertheless, they avoid criticizing the court publicly, and especially they avoid taking stances which could give the court adversaries (Driscoll et al. 285) The current State of Affairs Some of the latest developments regarding the ICC have been revolving around the question of the court’s independence and credibility. Some of the issues that have been raised include; Accusations of Selective enforcements The ongoing debate about the ICC is mostly based on the accusations of the court applying bias while deciding on which cases to pursue and how to investigate them. The court has been accused of being a form of imperialism that seeks to control African and poor countries in terms of economic developments and politics. Commentators have alleged that, it is understandable why the African Union is opposing the court - ICC seems to exist solely to judge Africans. As much as there have been a lot of atrocities committed around the world, including Syria, Afghanistan, Iraq and other countries, the ICC did nothing to punish those that were responsible. It is interesting that all the accused persons in the court are Africans (Ratner 445). In response to these accusations the court defended itself stating that the criterion adopted in selecting cases to pursue depends on several factors, some of which include the relative gravity of abuse and referrals, either by a member state or the UN Security council. Fatuo Bensouda, the prosecutor of the court, who is a Gambian national, said that abuse committed within the sub-Saharan Africa are among the most serious crimes of the word, and the court is not targeting Africans but rather it is protecting Africans. These sentiments were supported by Sandile Ngcobo, a prominent South African Jurist. Other supporters of the court contend that the legal system of most African states are weak, which has forced the ICC to assume its jurisdiction to such country on the principle of complementarity (Penrose, Mary). Justice vs. peace One of the major issues surrounding the ICC involvement in African cases is that there are risks of prolonging conflicts and violence, and this can endanger the fragile peace process. When the ICC gets involved in a case, the bargaining chip of amnesty is removed from the bargaining tables. This may compromise the peace settlement processes, while at the same time, it can lead to encouraging the perpetrators to seize power as a shield from international justice. The main objective of seeking for justice is to promote long term peace amongst the affected communities, but this has proved to be different. In the cases of Kenya, Sudan and the Lord’s resistance army, there have been serious concerns about conflicting aims of justice and peace. In Kenya, there are major concerns that the ICC process would destabilize the now existing peace, which the political and traditional leaders of the communities that were fighting in 2008 post election violence have built over the last five years. The ICC process is being viewed as a process that is opening “healing wounds” (Penrose 629-631). In Uganda, similar sentiments were echoed by traditional leaders who said that it was important to use traditional peace and reconciliation mechanisms instead of the ICC process. But supporters of the ICC, especially the civil society claimed that the ICC process in Uganda is the only way that can solve the problem. Recommendations The International Criminal Court should focus on addressing the issues that are being raised concerning the credibility of the court. They should look at the cause of such perceptions in the eyes of the people. The office of the prosecutor is the one facing major accusations concerning the choice of the cases the court could pursue, the nature of investigations, and how the evidence and the witnesses are obtained and protected. The ICC is a court of the last resort, and if the state parties that have referred cases to the court do not have confidence with the court any more, then there arises a lot of challenges as far as cooperation of such a state party is concerned. The ICC is a legal institution and not a political process. Therefore, players should desist from politics in a legal process. It has been a matter of great concern, especially in Africa where the court is being viewed as a tool of peddling agendas of western powers and punishing those that do not support them. The court should issue warnings to every state party not to politicize any matter that is before the court. This includes such advices that were being given by the former US assistant secretary of state for African affairs Johnnie Carson who warned Kenyans that “choices have consequences”. Such sentiments would only be viewed as interfering with democratic processes of a sovereign state, which is a disincentive to the court (Penrose 622). The court should also avoid giving reductive justice. This means that if a case is presented before it, both the sides of the story should be looked at the same way, without presumptions that these are the “good guys” and these are the “bad guys” Works cited Bantekas, Ilias, Mark Mackarel, and Susan Nash. International Criminal Law. London: Cavendish, 2001. Print. Bantekas, Ilias. International criminal law. Oxford: Hart Publishing, 2010. Print. Callaghan, Declan. “Is the International Criminal Court the Way Ahead?” International Criminal Law Review, 8.3(2008): 533-556. Print. Driscoll, William J, Joseph P. Zompetti, and Suzette Zompetti. The International Criminal Court: Global Politics and the Quest for Justice. New York: International Debate Education Association, 2003. Print. Gberie, Lansana. “Africa and international criminal justice: lessons from the Special Court for Sierra Leone.” African Security Review, 19.4(2010): 31-47. Print. Holvoet, Mathias and Paul de Hert. “International Criminal Law as Global Law: An Assessment of the Hybrid Tribunals.” Tilburg Law Review, 17.2 (2012): 228-240. Nagle, Luz E. “Terrorism and universal jurisdiction: Opening a Pandoraʼs Box?” Georgia State University Law Review, 27.2(2011): 339-378. Penrose, Mary Margaret. “No Badges, No Bars: A Conspicuous Oversight in the Development of an International Criminal Court.” Tex. Intʼl L.J. 38.3 (2003): 621-642. Print. Ratner, Steven R. “The International Criminal Court and the limits of global judicialization.” Texas International Law Journal 38.3 (2003): 445-53. Van Sliedregt, Elies. “Pluralism in International Criminal Law.” Leiden Journal of International Law, 25.4 (2012): 847-855. Print. Read More