The International Criminal Court and National Criminal Justice - Case Study Example

Name of the student Name of institution Date of submission Table of Contents Table of Contents 2 Complementarity of Jurisdictions between the International Criminal Court (ICC) and National Criminal Justice on International Crimes (Article 17 of the ICC Statute) 3 1.0 Complementarity and its conditionality as embodied in Article 17 of the ICC Statute 3 2.0 How does this complementarity work in real life cases? Illustration with the examples of successful and challenging cases of complementarity 6 2.0.1 Case of Cote d’Ivoire; 7 2.0.2 The case of Uganda, an East African nation; 8 2.0.3 The case of Kenyan Situation; 11 3.0 Suggestions as to how the functioning of this complementarity can be improved 13 Complementarity of Jurisdictions between the International Criminal Court (ICC) and National Criminal Justice on International Crimes (Article 17 of the ICC Statute) 1.0 Complementarity and its conditionality as embodied in Article 17 of the ICC Statute The International Criminal Court is an international institution which despite not having principal influences other national authorities; it is obligated with the mandate to assist other nations in the investigations and tribunals of some of the worst crimes that are considered to be of international concern hence considered as a complementary to the national criminal jurisdictions1. The Rome Statute having been the international treaty that spearheaded the establishment of the International Criminal Court in 17th July, 1998 to handle crimes2. Therefore, the aspect of complementarity is believed to be a significant approach by the negotiators of the concept to allow the two international bodies exercise their duties amicably3. The aspect of ICC being a complementary of the National Criminal Justice on International Crimes has proved to be one of the fundamental reasons as to why a number of nations decided to subscribe to the statute governing the formation of ICC4. Based on this concept of complementarity, the ICC’s prosecutors and judges are always required to adhere to that concept while carrying an investigation or prior to making a ruling regarding a particular case. This has always raised the question, as to when should a prosecutor carry out investigation pertaining to a particular case, as illustrated in the case of proprio motu investigations, the issue that was debated intensively prior to formation of the ICC was the eligibility of the prosecutor to carry out investigations5. Therefore, as outlined in Article 13(c), 15 and 53(1) of the formulated Rome Statute, there were circumstances as to when the ICC was authorized to spearhead a given investigation; Prior to initiating an investigation pertaining to an alleged crime, the prosecutor is always expected to undertake a primary analysis of the allegations reported. The reports in relation to the allegations are often received from Non -Government Organizations (NGOs) especially from the regions where the crimes are alleged to have happened, the involved states or their neighboring counterparts, United Nations organs and Journalists among others6. Meanwhile as stated in Article 15(3), the information gathered earlier from the relevant bodies must be presented to the Pre-Trial Chamber before a permission to go ahead with the investigations can be granted7. 8The judges of the Pre-Trial Chamber on their part tend to require some conditions to be met first before the issuance of the investigations’ authority to the prosecutor:- For instance, the judges in the Pre-Trial Chamber try to determine if the alleged crimes fall within the jurisdiction of the ICC; That is whether the alleged crimes are under the category of crimes against humanity, crimes of hostility & violence, war crimes and genocide. That is in case the alleged crimes have been undertaken by a nationality of a state that is a member of Rome Statute. That is whether the alleged crime was committed after the Rome State had been initiated, that is, after 1st July, 2002. 9The judges will as well expect the Prosecutor to confirm before the Pre-Trial Chamber whether the investigations are meant to administer justice at the end of the trial or not. 2.0 How does this complementarity work in real life cases? Illustration with the examples of successful and challenging cases of complementarity As stated in Article 17, the concept of complementarity must be observed, for instance if the state in which the alleged crimes happened have conducted or are in the process of conducting investigations in relation to the alleged crimes, therefore, the prosecutor’s investigations will be rendered meaningless since the state involved would be confirmed to be able to act on its own10. Therefore, whenever the Pre-Trial Chamber judges are satisfied with the conditions under which the prosecutor wants to initiate investigation as outlined above, they normally authorize the investigations to commence as was the case on the situation of an African nation, Cote d’Ivoire11. 2.0.1 Case of Cote d’Ivoire; The West African country confirmed its subscription to the Rome Statute on 3rd May, 2011.ratified. Therefore, following some alleged crimes committed in the year 2010 as well as some other crimes that were anticipated might be committed in the near future, the Pre-Trial chamber III authorized the prosecutor on 3rd October, 2011 to commence investigations regarding the same. In addition, in early 2012, the Pre-Trial Chamber III re-advised the prosecutor to take into consideration other cases that had been alleged to have been committed as from September 200212. 13To date, the alleged crimes in Cote d’Ivoire includes rape cases, murder and attempted murder of its citizens and persecution, these crimes had been alleged against the former country’s leaders, Laurent Gbagbo and Charles Blé Goudé. They were accused to have committed these offenses in the aftermath of the country’s election polls which was around 16th December, 2010 and 12th April, 2011. The ICC judges had confirmed the accusations against the two leaders in 12th June, 2014 and 11th December, 2014 as they wait the beginning of the trials. Rather than the case of poprio mutu investigation as discussed above, the concept of complementarity is not discussed exhaustively by the relevant bodies14. In relation to Article 31 of the Vienna Convention regarding the law of treaties, the understanding of treaty shall be drawn, inter alia based on its outlined objectives. One of the ultimate reasons for the establishment of the complementarity concept was the need to safeguard and ensure justice reins while protecting the sovereignty of entities involved. Therefore, the main object behind the concept of complementarity is to ensure that the states under Rome Statute abide by rules and regulations regarding the handling of the criminal cases. In respect to the Rome Statute, the complementarity system was ultimately designed to offer support to various states in handling alleged criminal cases hence making the regime of National Criminal Justice on International crimes execution quite effective. 2.0.2 The case of Uganda, an East African nation; 15The Republic of Uganda through its leadership felt unable to handle the alleged criminal cases against the Lord’s Resistance Army that was involved in various counts of crimes against its citizens. In the year 2003, the President of the Republic of Uganda, Yoweri Museveni decided to involve the International Criminal Court’s prosecutor in handling this situation. The Ugandan leader organized for a meeting with the ICC prosecutor in London so as to affirm its country’s full commitment and subscription to the Rome Statute from then henceforth, in addition the Ugandan leader, Yoweri Museveni sought the assistance of the ICC prosecutor to have the leadership of the illegal criminal group, Lord’s Resistance Army (LRA) in its nation arrested and prosecuted16. 17The Ugandan President stated that the leadership of LRA was so brutal subjecting even its own members to various hostile and criminal lifestyles. The country feared for the future prospect of its citizens residing in Northern Uganda where the terror gang is based. According to the Ugandan President, this directive is expected to ensure justice is served to the victims that might have been affected in one way or the other by the unlawful activities of the terror group in Northern Uganda. 18Therefore, as outlined in Article 17, the ICC is an international institution entrusted with protection of human rights and overseeing administration of justice in crimes of international status. Article 17 also reports that, in a situation where an affected state is unwilling to take action against perpetrators of alleged crimes, the International Criminal Court is obligated to have the regard in respect to the principle of due process as recommended by the international law. The International Criminal Court has within its jurisdiction the right to reconsider and review a given ruling against an accused based on the fact that the accused have protection against them known as victor’s justice19. As stipulated in Article 19, the International Criminal Court was never instituted to act as human rights lobby court stricto sensu, it was basically established to support and oversee administration of justice as well as protect the rights of the accused from being violated by the various National Criminal Jurisdiction bodies. Some of such scenarios requiring the intervention of the International Criminal Court is well articulated in the Article 17 of the Rome Statute20. However, it is believed that had the observation and protection of human rights of the alleged perpetrators in various states subscribed to Rome Statute been obligated to the International Criminal Court, this move would have distorted the initial concept behind the establishment of the International Criminal Court21. 22According to Article 17 of the Rome Statute, the concept of complementarity acknowledges the right of the accused to be investigated and be prosecuted by their respective national jurisdiction bodies in their native states, unless their national jurisdiction bodies are not able to or are unwilling to do so. For instance the case regarding an East African Nation, Kenya which had subjected to some form of violence during a hotly contested presidential elections in the year 200723. 2.0.3 The case of Kenyan Situation; Following the 2007 disputed presidential elections, the country experienced worst form of violence ranging from murder cases, rape, hostility and torturing and robbery with violence among others. However, with the intervention of the International community spearheaded by the former UN Secretary General, Mr. Koffi Annan, the Kenyan leaders who had been contesting for the presidency decided to sign peace accord so as end the violence that was tearing the East African Nation apart. Prior, to signing the peace accord that later ended the violence, the two leaders agreed to form a local tribunal in their nation so as to bring into book those nationalities that were behind the violence that had been witnessed in the country24. 25Unfournately, the Kenyan authorities found themselves unable to institute a local tribunal to try the alleged perpetrators of the post-election violence that had been witnessed in the country. This prompted the international Criminal Court to step in so as to ensure justice is served to the victims of the post-election violence. In the year 2010, the prosecutor was granted the proprio mutu investigation by the Pre-Trial Chamber to open investigation into the Kenyan cases. Following this development, six Kenyans were summoned to appear before the Pre-Trial Chamber II on April 2011. After a series of appearance before the Pre-Trial Chamber II at the International Criminal Court, four Kenyans among the six alleged perpetrators that had been attending the court proceeding had the charges against them dropped for lack of substantial evidence26. The other Kenyan nationalities had the charges against them confirmed by the International Criminal Court, that is Mr. William Ruto and Joshua Arap Sang who had their charges confirmed on 8th September, 2011 while the third individual Mr. Uhuru Kenyatta had confirmation of his charges read on 5th October, 2011. In this respect, the two Kenyans, that is, William Ruto and Joshua Arap Sang had the commencement of their trials on 10th September, 2013. However, the commencement of the trials against the other Kenyan, Mr. Uhuru Kenyatta which was scheduled to begin in 7th October, 2014 was postponed following the request filed by the prosecutor so as to gather enough evidence in support of the alleged crimes against Mr. Uhuru Kenyatta. On 3th December, 2014 the prosecutor once again filed an application to have the trials postponed. However, the Trail Chamber V (B), declined to guarantee the plea prompting the prosecutor to file for an application to have the alleged charges against Mr. Uhuru Kenyatta dropped on 5th December, 2014. 27The Trial Chamber V (B) guaranteed the plea and withdrew all charged against the Kenyan, Mr.Uhuru Kenyatta. Despite the withdrawn, the prosecutor confirmed that in the event that enough evidence will have been gathered, the charges against Mr. Uhuru Kenyatta will be re-applied for trials so as ensure justice is served to the victims of the post-election violence in Kenya. Therefore, the concept of complementarity of the International Criminal Court is to instill the fight against impunity by acting as the International Court of last resort upon exhaustion of all the avenues by the affected states28. 29The concept of complementarity can therefore be confirmed to have been majorly designed to strike a state of balance between the sovereignty of the states subscribed to the Rome statute in terms of administering justice to its citizens and the realization that crimes of such international nature do not occur again. 3.0 Suggestions as to how the functioning of this complementarity can be improved At the same time, the concept of complementarity re-energies the various states that are parties to the Rome Statute and offers them support towards ensuring that justice is served30. The Rome Statute having been the international treaty that spearheaded the establishment of the International Criminal Court in 17th July, 1998 to handle crimes. Therefore, the aspect of complementarity is believed to be a significant approach by the negotiators of the concept to allow the two international bodies exercise their duties amicably. However in order to ensure that the principle of complementary functions properly, the following should be taken into consideration:- The International Criminal Court should appoint their representative in every state subscribed to the Rome statute to work with the respective states to ensure that justice is served were its due. In this case, the International Criminal Court will be able to minimize unfair rulings that sometimes prevent the victims from getting the justice they deserve, for instance in cases where war crimes and crimes against humanity are spearheaded by the top leadership of the affected state, there tend to be high probability of the rulings being influenced to favor them hence no justice is observed at the end of the day. The International Criminal Court should put in place mechanisms to ensure that these crimes of international nature are all tried at the International Criminal Court, that is, the National Criminal Justice in every state in the Rome Statute should be dissolved and have the International Criminal Court mandated to oversee the case until its final ruling, this will ensure fair trials is observed. The International Criminal Court should establish branches in every continent so as to make work easier in terms of following up investigations and administering full trial for the same. At the same time it will be easier to get in touch with many witnesses as much as possible to give account of their observation during the occurrence of the alleged crimes. BIBLIOGRAPHY Achaean, Pay is. "The Lord's Resistance Army Case: Uganda's Submission of the First State Referral to the International Criminal Court." American Journal of International Law (2005): 403-421. Akhavan, Payam. "The Lord's Resistance Army Case: Uganda's Submission of the First State Referral to the International Criminal Court." American Journal of International Law (2005): 403-421. Arsanjani, Mahnoush H. "The Rome Statute of the International Criminal Court."American Journal of International Law (1999): 22-43. Bellamy, Alex J., and Paul D. Williams. "The new politics of protection? Côte d'Ivoire, Libya and the responsibility to protect." International Affairs 87, no. 4 (2011): 825-850. Brown, Bartram S. "Primacy or Complementarity: Reconciling the Jurisdiction of National Courts and International Criminal Tribunals." Yale J. Int'l L. 23 (1998): 383. Burke-White, William W. "Proactive complementarity: The International Criminal Court and national courts in the Rome system of international justice." Harv. Int'l LJ 49 (2008): 53. Caesius, A. "The Statute of the International Criminal Court: some preliminary reflections." European Journal of International Law 10, no. 1 (1999): 144-171. Delmas-Marty, Mireille. "Interactions between national and international criminal law in the preliminary phase of trial at the ICC." Journal of International Criminal Justice 4, no. 1 (2006): 2-11. Dixon, M, McCorquodale, R, and Williams, S, Cases and Materials on International Law, Oxford University Press, 4th ed. 2011. Gurule, Jimmy. "United States Opposition to the 1998 Rome Statute Establishing an International Criminal Court: Is the Court's Jurisdiction Truly Complementary to National Criminal Jurisdictions." Cornell Int'l LJ 35 (2001): 1. Heller, Kevin Jon. "The Shadow Side of Complementarity: The Effect of Article 17 of the Rome Statute on National Due Process." In Criminal Law Forum, vol. 17, no. 3-4, pp. 255-280. Springer Netherlands, 2006. Kleffner, Jann K. "The impact of complementarity on national implementation of substantive international criminal law." Journal of International Criminal Justice1, no. 1 (2003): 86-113. Kress, Claus. "Self-Referrals and Waivers of Complementarity-Some Considerations in Law and Policy." J. Int'l Crim. Just. 2 (2004): 944. Morris, Madeline. "The Democratic Dilemma of the International Criminal Court." (2002): 591-600. Moy, H. Abigail. "International Criminal Court's Arrest Warrants and Uganda's Lord's Resistance Army: Renewing the Debate over Amnesty and Complementarity, The." Harv. Hum Rts. J. 19 (2006): 267. Mueller, Susanne D. "Kenya and the International Criminal Court (ICC): politics, the election and the law." Journal of Eastern African Studies 8, no. 1 (2014): 25-42. Newton, Michael A. "Comparative Complementarity: Domestic Jurisdiction Consistent with the Rome Statute of the International Criminal Court." Mil. L. Rev. 167 (2001): 20. Robinson, Darryl. "Serving the interests of justice: Amnesties, truth commissions and the International Criminal Court." European Journal of International Law 14, no. 3 (2003): 481-505. Saraooshi, Dan. "Prosecutorial Policy and the ICC-Prosecutor's Proprio Motu Action or Self-Denial." J. Int'l Crim. Just. 2 (2004): 940. Schabas, William A. An introduction to the international criminal court. Cambridge University Press, 2011. Stahn, Carsten. "Complementarity, amnesties and alternative forms of justice: some interpretative guidelines for the International Criminal Court." Journal of International Criminal Justice 3, no. 3 (2005): 695-720. Yang, Lijun. "On the principle of complementarity in the Rome statute of the International Criminal Court." Chinese Journal of International Law 4, no. 1 (2005): 121-132. Read More