The International Criminal Court - Legal and Normative Frameworks, Criticism and Challenges - Case Study Example

International Criminal Court Student Name Tutor Name Institution Date Table of Contents Introduction………………………………………………………………………………………3 The International Criminal Court’s Background Information…………………………………….3 The International Criminal Court Legal and Normative Frameworks…………………………….3 Operation of the international Criminal court and the Signatories………………………………..6 Non-governmental and Intergovernmental Organizations……………...…………………………6 The International Criminal Court Criticism and Challenges ……………………………………..7 The Future of the ICC…………………………………………………………………………….8 How the ICC meet its Goals and extent of Its Support……………………..……………………8 Conclusion………………………………………………………………………………………..9 Recommendations………………………………………………………………………………10 Reference List…………………………………………………………………………………...11 Introduction The international Criminal Court (ICC) is along-lasting multinational tribunal, which was created with a sole purpose of prosecuting culprits of crimes against humanity, genocide, war crimes, and aggregation crimes (but the jurisdiction for crimes of aggregation would be inactive till 2017).The ICC was instituted by the Rome Statute and established itself in the Hague, Netherlands. The ICC was created so as to harmonize the current national judicial systems, and can implement it jurisdiction if the national courts are not able or not ready to scrutinize or act against these crimes. Despite this, there are perceptions that ICC it targeting African countries rather than offering unbiased services to all states. This claim cannot be despised nor accepted because there is some truth and false in it, which need to be clearly addressed (Jones, 2010). This report would focus on The International Criminal Court in relations to: relevant international legal and normative frameworks, historical context, and international political context; major actors and their interests; analysis of its current affairs in relations to aspects of international law; and its future prospects. The International Criminal Court’s Background Information The International Criminal Court (ICC) is situated in The Hague, Netherlands and it is intended as a last option for prosecuting individuals implicated with war crimes, genocide and crimes against humanity. It was founded by the Rome Statute and implemented on 1st July, 2002. The ICC had 122 state parties by July 2013, and so it has opened investigations in eight countries (all from Africa) - The Democratic Republic of Congo, the Central African Republic, Sudan, Uganda, Kenya, Libya, The Republic of Cote d’Ivoire and Mali (Laar, 2011). The court has made progresses in ensuring proper international justice for the last one decade, and it has increased expectations for places that have experienced terrible crimes. In addition to that, the ICC is experiencing flaws on its undertakings because of inconsistent governmental support for arrests. Fatou Bensouda was sworn in 2012 to occupy the place of head prosecutor Moreno Ocampo. For the suspects in Sudan, Congo, Libya, and Cote d’Ivoire, their warrants of arrest are still pending, and the court and its member states are experiencing big problems of ensuring successful expectations in the second decade (Laar, 2011). The International Criminal Court Legal and Normative Frameworks The Rome statute has normative and legal frameworks under which the above mentioned crimes track. The court has four procedures for its jurisdiction: if the a situation is referred to the court by the UN security council; if the accused is a national of the state party to the Rome Statute; if a non-state party to the Statute agrees to the jurisdiction of the court; and if the claimed crime happens on the country of a state party. The court is created to complement the current national judicial system, and can only implement its jurisdiction if the national courts are not able or not ready to look into and put on trials on such crimes (Bosco, 2014). Section 2, article 5 of the Rome statute allows the court jurisdiction on the following crimes: crimes against humanity; crimes of aggression; genocide; and war crimes. Article 6 holds for Genocide- it is any action that the following actions may obligate with an intention of destroying part or the whole, racial, nation, religious, or ethical group. Crimes against humanity (Article 7) - it means any of the following actions done as part of extensive or organized attack aimed at any civilian people, with awareness of the assault; bullying against some recognized groups or collectivity on ethnic, racial, political and national, gender, cultural and religious ground. War crimes (article 8.2) – (a) This involves other severe violations of the laws and customs that are applied in international armed conflict within the built international law framework, namely: (act ix)-deliberately aiming attacks against structures bestowed to art, education, science or helpful functions, religion, hospitals, historic monuments and areas where sick people are gathered as long as they are not military persons. e) Other severe violations of the law and other customs that are applied to armed conflicts but not of international feature within the built international law framework, namely: (act v) - intentionally directing attacks against structures bestowed to art, education, science or helpful functions, religion, hospitals, historic monuments and areas where sick people are gathered as long as they are not military persons. (Article 21)- application and interpretation of pursuant of the law to this article ought to be consistent with internationally identified human rights, and should be devoid of any unhelpful features established on the basis of language, religion, political, age, color, wealth, social origin or other status. Additionally, statute holds that the court would not put into practice its jurisdiction over the aggression crimes till an agreement is reached on conditions of its application (Cryer et al, 2013; Barnet & Finnermore, 2014). Territorial jurisdiction of the court is allowable under the following conditions: where the individual accused of committing a crime is national of a state party; where a situation is referred to court by the UN Security Council; and where the claimed crime is committed on the territory of a state party. The ICC court is the last resort when a national court is unable or unwilling to perform investigations and prosecution on the accused. Article 17 of the statute affirms that a case is unacceptable if: a) The case has no adequate gravity to substantiate further court action. b) The case has been investigated by a state which has jurisdiction over it and the court has resolved to prosecute the individual involved, unless the decision resulted from lack of readiness or lack of ability of the state prosecute. c) The involved person had already been put into trial for conduct that make complaint subject, and therefore, trial by the court is not allowed under article 20(3). d) The case in under investigation or prosecuted by a state that has a jurisdiction on it, unless the state is not ready or not able to honestly perform investigation or prosecution (Schaak & Slye, 2008). Operation of the international Criminal court and the Signatories The ICC deals with perpetrators who have been associated with crimes against humanity, genocide, war crimes, or court contempt in the ICC pursuant to the Rome statute. After the pre-trial chamber has found reasonable grounds to belief that that the individual has committed a crime within court’s jurisdiction, it accuses the person and issues arrest warrant or summon (Schabas, 2009). The warrant of arrest is issued so as to prevent the indicted person from interfering with investigations or court proceedings, or to stop the person from progressing with commission of the same crime. Summons is issued if the pretrial chamber is assured of the person’s appearance. The state parties to the statute of the court, by April 2014, were 122, including 18 from Eastern Europe, 27 from Latin America and Caribbean states, 18 from Asian-pacific, 34 from Africa, and 25 from Western Europe and other states. These are states which have ratified the Rome statute document, meaning that they are ready to implement the ICC in their countries. Amongst the signatories of the Rome Statute include, but not limited to, Afghanistan, France, Georgia, Slovenia, Nauru, Liberia, Australia, Zambia, and Botswana (Cassese & Gaeta, 2013) Non-governmental and Intergovernmental Organizations The Intergovernmental and Non-governmental organizations work to bring normative changes concerning human rights and international law. Through complementary and parallel diplomacy processes, nongovernmental organizations (NGO) are able to push human rights concerns into the international security agenda (Kirsch, 2007). They are also actively involved at every level of the Court’s evolution. NGOs are involved in the ICC processes in: a) international agenda setting by contributing views and ideas; facilitating the process of ratification and fetching of organizational expertise to ensure that the international law meets the interests of all people; ongoing development and support of the court. Additionally, NGO have direct knowledge of violations and contacts with victims and witnesses communities, therefore, acting as sources of information to the ICC prosecutor whenever crimes have been committed. Intergovernmental Organizations (IGO), such as the United Nations (UN) act as the basic multilateral treaty actors in the international law.IGO help countries that are experiencing differences to solve their issues solved by initiating diplomacy. These organizations eliminate wars and encourage peace and harmony, thereby reducing insecurity and congestion of crimes in the ICC (Coward, 2007; Blay, 2009). The International Criminal Court Criticism and Challenges Most of criticism on the ICC originates from Africa. The African Countries are not satisfied with the way the ICC is carrying out its duties by claiming that the ICC is mainly focusing on Africa, particularly the black Africans. This is due to the fact that the cases that have been handled by the court happen to come from Africa, while the ICC overlooks similar cases from non -African Countries such as Iraq and Syria. Therefore, Africa has perceptions that there biasness in selection of countries and cases followed up by the court (Stahn & Zeidy, 2012). Contrary to this, the ICC supporters argue that Africa has had several cases against humanity and have weak systems of justice; therefore it is not the intention of the ICC to concentrate on Africa. Therefore, most African countries have perceived the ICC as a tool to extend colonial domination. There is also a criticism on fairness and quality of judges in the ICC (Schabas, 2010; Politi et al, 2008). Some countries claim that the judges are supposed to pass through both criminal trial and international law experiences as minimum requirements, so as to have fairly selected and competent judges. There are also claims that the prosecutor is given a lot of powers and this may lead to subjectivity and arbitrariness in the way investigations and prosecutions are carried out. Countries which dominate the ICC funding have influence on the ICC’s activities (Paris, 2009). About 60% of the ICC funding comes from The European Union, and it is claimed that that there is a correlation between this funding and influence of the ICC’s undertakings. It also claimed that some governmental organizations, in various countries, are aligned to political groups, thus, they easily interfere with the ICC’s credibility (Paris, 2009a). The Future of the ICC The future outlook of the ICC is not pleasing. The ICC is expected to lose a substantial support and its remaining sections of integrity under the new intuitional structure. For instance, the Kenyan cases, the ICC appears to have gone into domestic ethnic politics, which highly eliminates truthfulness of neutral players. The court, particularly the prosecutor, is given a lot of power which can easily call for political manipulation and biased arbitration. The ICC is likely to lack a landslide support by dejecting international justice, unless severe reforms are done to make sure that the court is trusted by portraying Justice in its undertakings (Roach, 2006). How the ICC meet its Goals and extent of Its Support The ICC is supported by both NGOs and Intergovernmental organizations (IGO) to have its work successfully accomplished. NGO provide evidences to court cases concerning crimes against humanity, genocide and war crimes. They are also concerned with international agenda setting by providing views and ideas on the same. They facilitate the process of ratification and fetching of organizational expertise to ensure that the international law meets the interests of all people. NGOs are also involved in the ongoing development and support of the court. The United Nations cooperates with the court in various areas, including exchange of information and logistical support (Schabas, 2011; Bergen, 2009). About 139 have signed the Rome statute, but about 118 have ratified the document. This means that they have accepted to use the Statute in their countries. Amongst the signatories of the Rome Statute are France, Georgia, Liberia, Nauru, Zambia, Afghanistan, Slovenia, and France. Countries like India, Indonesia, and China have never signed nor ratified the Rome Statute. The US, Israel, and Sudan who had signed the document withdrew later. The opposing countries are not in agreement with some codes of the statute (Sara et al, 2000). Conclusion The ICC is facing a lot of challenges both from its member states and non-member states on the basis of biasness and manipulation. It is very important for the ICC stakeholders to focus on impunity and different avenues of justice. In addition to that, The Statute is likely to lose potential support if it fails to clearly address issues related to political manipulation, fair and competent selection of court judges, and reduction of court powers. Recommendations The ICC should remain neutral in the fight against impunity globally and follow jurisdictions in areas where crimes have been committed. The court need to be uninfluenced either politically or financially to make unfair decisions as this would undermine the court’s credibility among member and non-member states. The court should, therefore, carry out unbiased investigations where grave crimes have been committed and perform fair trial. The court should practically communicate and associate with different categories of leaders and create strong outreach information to the victim communities. This sharing would enable leaders understand how the court works. Leaders should prioritize the demands of victims of grave international crimes. Therefore, they need to put up structures to honestly prosecute perpetrators without compromising the rights and truthfulness of the victims. References Barnet, M. & Finnermore, M. 2014. Rules for the World: International Organizations in Global Politics. New York: Cornell University Press Bergen, D. 2009. War and Genocide: A Concise History of the Holocaust (Critical Issues in World and International History), 2nd ed. Lanham: Rowman & Littlefield Publishers. Bosco, D. 2014. Rough Justice: The International Criminal Court in a World of Power Politics. . Oxford University: Oxford University Press Blay, S. 2009. International Law, retrieved on 2 June 2014 from Cassese, A. & Gaeta, P. 2013. Cassese’s International Criminal Law,3rd ed. Oxford University: Oxford University Press Coward, C. 2007. The International Organization. How NGO’s and IGO’s affect the International System, Retrieved on 2 June, 2014 from Cryer, R., Friman, H., & Robinson, D. 2013. An Introduction to International Criminal Law and Procedure. Cambridge: Cambridge University Press. Jones, A. 2010. Genocide: A Comprehensive Introduction to the ICC, 2nd ed. London: Routledge Kirsch, P. 2007. The role of International Criminal Court in Enforcing International Criminal Law, 22(4):1- 6 Laar, P. A. 2011.International Courts and Tribunals Cases Series: Volume 1: The Thomas Lubanga Dyilo Case . Egg: International Courts Association Paris, E. 2009a. The Sun Climbs Slow: The International Criminal Court and the Struggle for Justice. New York: Seven Stories Press Paris, E. 2009b. Problem From Hell: America and the Age of Genocide. New York, NY: Seven Stories Press Politi, M. & Gioia, F. 2008. The International Criminal Court and National Jurisdictions. Burlington: Ashgate Roach, S. C. 2006. Politicizing the International Criminal Court: The Convergence of Politics, Ethics, and Law. Lanham: Rowman & Littlefield Publishers. Sara, B. S., & Kaysen, C. 2000. The United States and the International Criminal Court: National Security and International Law. Lanham Rowman & Littlefield Publishers Schaak, E. & Slye, R. C. 2008. International Criminal Law: The Essentials. New Yolk: Aspen Publishers Schabas, W. 2010. The International Criminal Court: A Commentary on the Rome Statute. Oxford University: Oxford University Press Schabas, W. A. 2011. An Introduction to the International Criminal Court. Cambridge: Cambridge University Pres Schabas, W. A. 2009. Genocide in International Law: The Crime of Crimes,2nd ed. Oxford University: Oxford University Press Stahn, C. & Zeidy, M. M. 2012. The International Criminal Court: From Theory to Practice. Oxford University: Oxford University Press Read More