By
Bakampa Brian Baryaguma
1.
Need
for an International Criminal Court
The
demand for an international criminal court started in the 19th
century,[1]
when the world started experiencing regular large-scale conflicts, occasioning gross
violations of human rights and international law.
These
demands were ‘... considered a utopian
fantasy.’[2]
Nothing
came out of them, yet conflicts intensified, with so much horror that human
life was rendered valueless,[3]
thus necessitating a dire need for global peace and security.[4]
International
political institutions were promptly formed to satisfy this hangover for peace,
which was achieved in many parts of the world.[5]
Experience however, showed that sustainable peace could only be achieved when accompanied
by justice – that the two are not only compatible, but that justice is actually an
important factor in restoring peace and security, in this ‘unruly
world.’[6]
To concurrently
achieve the two, ad hoc international tribunals were created to try and punish the
violators of international law, peace, stability and human rights.[7]
Nevertheless, such “quick fixes” were not sufficient to guarantee the delicate
balance between the need for peace and the corresponding need for justice. A permanent
institution of justice, applying ‘...
universal jurisdiction to hold perpetrators of the most serious crimes to account,’[8] was required.
2.
Establishment
of the ICC
Renewed
calls for a multinational criminal court to led to the formation of the International Criminal Court (hereinafter
‘the ICC’ or ‘the Court’),[9]
to serve as an autonomous international judicial institution, mandated to investigate, prosecute and try
individuals accused of committing the most serious crimes of concern to the
international community as a whole.[10]
The ICC was established by Article 1
of the Rome Statute of the International
Criminal Court (hereinafter ‘the
Rome Statute’),[11] stating that, ‘It shall be a permanent
institution and shall have the power to exercise its jurisdiction over persons
for the most serious crimes of international concern, as referred to in this
Statute, and shall be complementary to national criminal jurisdictions.’[12]
The Court is based in The Hague in the Netherlands,[13] but enjoys international
legal personality,[14] authorized to exercise
its functions and powers on the territory of any state, either by operation of
the Rome Statute or special agreement.[15]
For efficiency and proper administration purposes, the ICC is composed of four organs (each having
a specific role and mandate): the Presidency,[16] the Chambers,[17] the Office of the
Prosecutor,[18]
and the Registry.[19]
3.
Functions
of the ICC
Fundamentally,
‘Justice is a vital component of the rule of law.’[20] The Court adjudicates over criminal matters, as enshrined in Article 5 of
the Rome Statute,[21] namely the crime of
genocide,[22]
crimes against humanity,[23] war crimes[24] and the crime of
aggression,[25]
in its strictly judicial
capacity.[26] It does
not handle civil disputes.[27] It does not play political or
humanitarian roles.[28] It has no jurisdiction in
peace processes;[29]
its contribution to peace-building can only be done by holding judicial
proceedings.[30]
4.
Accessing the ICC
Article 13 of the Rome Statute provides for the
Court’s exercise of jurisdiction with respect to a crime referred to in Article 5. Article
13 states that the ICC may exercise
jurisdiction in a situation in which one or more of such crimes appears to have
been committed if:
(a)
A State Party
to the Rome Statute requests the Prosecutor to
carry out an investigation;[31]
(b)
The UN Security Council
refers a situation to it acting under Chapter VII of the UN Charter;[32] or
(c)
The
Prosecutor initiates an investigation.[33]
All parties to the trial (Prosecutor,
accused and victims) may present evidence relevant to the case.[34]
5.
Effectiveness
of the ICC
Although ‘one of the most comprehensively
developed institutions of global governance,’[35]
the ICC is a young institution – 12 years and six months old.
Transport
and communication have improved tremendously, since the 19th century;
so have awareness and demands for justice – and the global connection between
them.[36]
The Court is doing well in today’s highly mobile and inter-connected world especially,
in engendering global accountability, respect for human rights and sustainable global
peace, order and security.[37]
If justice and peace are sides of the same coin, then accountability and
respect for human rights are the coin’s body fabric. In pursuing the one, the
ICC automatically contributes to the other.
The Court
promotes global accountability for decisions of political and military leaders.
Perpetrators of crimes of grave international concern are increasingly apprehended.
This promotes the international rule of law and deters future criminals.[38]
The ICC
ensures respect for human rights. By insisting on responsible leadership, the
Court upholds the international condemnation of ‘disregard
and contempt for human rights,’[39] and serves as the best
guarantee for a life in ‘freedom from fear.’[40]
The Court
contributes to attaining and consolidating sustainable global peace, order and
security. It is considered, ‘... a
success of the human security agenda.’[41]
Young as it is, the ICC performs well in outreach
activities like disseminating information on its systems and processes to relevant
stakeholders and the public alike.[42] Moreover,
it is readily accessible.[43] This
public impact generated here garners great value to the Court as a justice entity,[44] by
enhancing its credibility and legitimacy, which boosts its effectiveness.
An examination of the Rome Statute reveals that these
accomplishments underlie the objectives for which the ICC was formed.[45] If
the Court’s objectives are realized, then certainly it is effective.[46]
6.
Conclusion
Enormous progress has been made with the ICC’s establishment,[47]
although there is more room for improvement.[48]
The
Court deserves utmost respect and support.[49]
In fulfilling its duties, the ICC should be enabled – not hobbled – especially
financially; and as requested by the UN Secretary-General, by surrendering accused
persons to it upon request.[50] The Court is only a mainstream global actor in an
international setting where states still play leading roles.[51]
Its effectiveness should be enhanced with corresponding improvements in
national judicial systems.[52]
NOTES AND REFERENCES
[1] Luis Moreno Ocampo,
speaking in his Week 13 lecture on ‘Global Justice,’
in the Global Civics lecture series, of the Global Civics Academy
(available at https://www.youtube.com/watch?v=0UxQKFQa9iQ,
accessed on 25 December 2014, at 01:14 hrs), says that demands specifically
started in 1873. Mr Ocampo is the former first
prosecutor of the ICC.
[2] Chris Tenove, ‘International Justice for
Victims? Assessing the International Criminal Court from the Perspective of
Victims in Kenya and Uganda’ AP
(2013) 1, at 2.
[3] Up to shocking levels
of World War I (1914-1918) and World War II (1939-1945). In the latter, the International
Military Tribunal (Nuremberg), in its judgment of 1 October 1946, found and
stated at page 58, that, ‘... War Crimes were committed on a vast scale,
never before seen in the history of war. They were perpetrated in all the
countries occupied by Germany, and on the high seas, and were attended by every
conceivable circumstance of cruelty and horror. ... Everything is made
subordinate to the over-mastering dictates of war. Rules, regulations,
assurances and treaties all alike are of no moment; and so, freed from the
restraining influence of International Law, the aggressive war is conducted by
the Nazi leaders in the most barbaric way. Accordingly, War Crimes were
committed when and wherever the Führer and his close associates thought them to
be advantageous. They were for the most part the result of cold and criminal
calculation.’
Hans-Peter Kaul, ‘Is It Possible to Prevent or Punish Future Aggressive
War-Making?’ FICHL (2011) 1, at 5,
says that, ‘... the Second World War, brought about essentially by the
aggressive gamble of Adolf Hitler and his followers, was the deadliest war ever, with
more than 50 million victims and untold suffering for so many all over the
world.’
[4] The biggest driving
force resulted from the carnage and destruction of the two world wars, coupled
with the terrible 1945 atomic bombings. Zhores Medvedev, ‘Stalin and the Atomic
Bomb’, in Roy Medvedev and Zhores Medvedev, The
Unknown Stalin: His Life, Death, and Legacy (2003) 121, at 132, recounts
that by order of President Harry Truman, the American air force, exploded the atomic bomb over Hiroshima
on 6 August 1945; the next day, 7 August 1945, a second one was dropped over
Nagasaki, killing between 200,000-300,000 people.
[5] The United Nations
(UN) is the most prominent of these institutions. The Preamble
to its constitutive document – the Charter
of the United Nations, 1945 – states that the UN aspires to save
succeeding generations from the scourge of war, which twice in our lifetime has
brought untold sorrow to mankind; and to unite our strength to maintain
international peace and security, and to ensure, by the acceptance of
principles and the institution of methods, that armed force shall not be used,
save in the common interest. These international institutions had to be strong
enough to hold-back and keep-in-check war mongers. For its part, the UN has
largely succeeded in fulfilling this cardinal role.
[6] As perceived by Hans-Peter Kaul, ‘Is It
Possible to Prevent or Punish Future Aggressive War-Making?’ FICHL (2011) 1, at 2.
[7] For
example, first, the International Criminal Tribunal for the former Yugoslavia (ICTY) that was
constituted under the authority of the Statute of the International Criminal Tribunal for the former
Yugoslavia (pursuant to UN Security
Council resolution 827 (1993), of 25 May 1993), as a
body of the United Nations established to prosecute serious
crimes
and violations of international humanitarian law committed during the wars in the former
Yugoslavia since 1991 and to try their perpetrators; and
second, the United Nations International Criminal Tribunal for
Rwanda (ICTR) that was constituted under the authority of the Statute of the
International Tribunal for Rwanda
(pursuant to UN Security Council resolution 955 (1994)), in the
direct aftermath of the 1994 genocide to prosecute those considered most
responsible for the gravest crimes committed during the genocide.
These
processes were part of measures to address mass atrocity crimes, justified by
ideas like humanitarian intervention, then the responsibility to protect and
recently the responsibility while protecting. Unfortunately, this is no place
for a discussion of these ideas. But for a thorough and exhaustive discussion
on these doctrines, refer to my week 12 essay entitled, ‘The Responsibility to
Protect in the Context of the Democratic Republic of Congo.’
[8] Richard Dicker and Elise Keppler, ‘Beyond the Hague: The Challenges of
International Justice,’ at 1.
[9] These renewed calls
eventually triggered an incredible announcement from the Government of Canada. Lauren Marie Balasco, ‘The International
Criminal Court as a Human Security Agent’ (2013), at 46-47, writes that, ‘In 1998, Lloyd Axworthy, former
Canadian Minister of Foreign Affairs, announced, “the
international community is currently engaged in negotiations towards an
agreement that would revolutionize our approach to human security and
humanitarian law—negotiations on an International Criminal Court.”’
[10] As rightly noted by
Hakan Altinay, in his introductory remarks to the
Week 13 lecture on ‘Global Justice,’ in the Global Civics lecture series, of
the Global Civics Academy (available online at https://www.youtube.com/watch?v=0UxQKFQa9iQ,
accessed on 22 November 2014, at 00:30 hrs), an International Criminal Court
was to be another mass atrocity remedial mechanism, additional to those stated supra note 7.
[11] The
Rome Statute was adopted in Rome, Italy, on 17 July 1998, by
120 states. It
entered into force on 1 July 2002. It
was (and still is) widely endorsed by many states and non-states alike.
[12] It follows from this that
the Court
is characteristically permanent in nature; empowered to exercise
jurisdiction over persons (i.e. individuals); for purposes of the most serious crimes of international concern; and is complementary to national criminal
jurisdictions. For avoidance of doubt, it should be noted that:
(i)
The ICC is not an ad hoc institution. It is a permanent or
standing international judicial institution.
(ii)
The ICC does not try not states, organizations or other groups of
people. It only tries or entertains individuals. The reason for this stand was
well stated by the International
Military Tribunal (Nuremberg), supra note 3, at 55-56, that, ‘Crimes against International
Law are committed by men, not by abstract entities, and only by punishing
individuals who commit such crimes can the provisions of International Law be
enforced. ... The principle of International Law, which under certain
circumstances protects the representatives of a State, cannot be applied to
acts which are condemned as criminal by International Law. The authors of these
acts cannot shelter themselves behind their official position in order to be
freed from punishment in appropriate proceedings. ... On the other hand ...
individuals have international duties which transcend the national obligations
of obedience imposed by the individual State. He who violates the laws of war
cannot obtain immunity while acting in pursuance of the authority of the State
if the State in authorizing action moves outside its competence under
International Law.’
(iii)
The ICC does not try minor, petty or simplistic transgressions
that can easily be addressed at the national level. Rather, it presides over
gross violations of international law and human rights, meriting international
involvement. The reason for this, as rightly noted by Luis Moreno Ocampo, supra note 1,
is because, ‘There are things that we very much care about that we find
national rules and institutions insufficient, calling for international
involvement.’
(iv)
The ICC is not intended to replace national criminal courts. On
the contrary, it is intended to complement them, by playing a supportive or
supplementary role especially, when those courts are unable and/or are
unwilling to try the individuals concerned. The principle of complementarity is
respectful
of the sovereignty of states that bear the primary responsibility to prevent,
control and prosecute those atrocious crimes.
[13] Article 3(1) of the
Rome Statute.
[14] Article 4(1) of the
Rome Statute.
[15] Article 4(2) of the
Rome Statute.
[16] The Presidency consists of three judges (the
President and two Vice-Presidents) elected by an absolute majority of the 18
judges of the Court for a maximum of two, three-year terms.
The Presidency is responsible for the
administration of the Court, with the exception of the Office of the
Prosecutor. It represents the Court to the outside world and helps with the
organisation of the work of the judges. The Presidency is also responsible for
carrying out other tasks, such as ensuring the enforcement of sentences imposed
by the Court.
[17] The 18 judges, including the three
judges of the Presidency, are assigned to the Court's three judicial divisions:
the Pre-Trial Division (composed of seven judges), the Trial Division,
(composed of six judges), and the Appeals Division (composed of five judges).
They are assigned to the following Chambers: the Pre-Trial Chambers (each
composed of one or three judges), the Trial Chambers (each composed of three
judges) and the Appeals Chamber (composed of the five judges of the Appeals
Division).
The Pre-Trial Chambers, each of which is composed of either one or three judges, resolve all issues which arise before the trial phase begins.
Their role is essentially to supervise how the Prosecutor carries out his or
her investigatory and prosecutorial activities, to guarantee the rights of
suspects, victims and witnesses during the investigatory phase, and to ensure
the integrity of the proceedings. The Pre-Trial Chambers then decide whether or
not to issue warrants of arrest or summons to appear at the Prosecutor's
request and whether or not to confirm the charges against a person suspected of
a crime. They may also decide on the admissibility of situations and cases and
on the participation of victims at the pre-trial stage.
Once an arrest warrant is issued, the alleged perpetrator
arrested and the charges confirmed by a Pre-Trial Chamber, the Presidency
constitutes a Trial Chamber composed of three judges to try the case. A Trial
Chamber's primary function is to ensure that trials are fair and expeditious
and are conducted with full respect for the rights of the accused and due
regard for the protection of the victims and the witnesses. It also rules on
the participation of victims at the trial stage. The Trial Chamber determines
whether an accused is innocent or guilty of the charges and, if he or she is
found guilty, may impose a sentence of imprisonment for a specified number of
years not exceeding a maximum of thirty years or life imprisonment. Financial
penalties may also be imposed. A Trial Chamber may thus order a convicted
person to make reparations for the harm suffered by the victims, including
compensation, restitution or rehabilitation.
The Appeals Chamber is composed of the President of the Court
and four other judges. All parties to the trial may appeal or seek leave to
appeal decisions of the Pre-Trial and Trial Chambers. The Appeals Chamber may
uphold, reverse or amend the decision appealed from, including judgments and
sentencing decisions, and may even order a new trial before a different Trial
Chamber. It may also revise a final judgment of conviction or sentence.
[18] The Office of the Prosecutor is an independent organ of
the Court. Its mandate is to receive and analyse information on situations or
alleged crimes within the jurisdiction of the ICC, to analyse situations
referred to it in order to determine whether there is a reasonable basis to
initiate an investigation into a crime of genocide, crimes against humanity,
war crimes or the crime of aggression, and to bring the perpetrators of these
crimes before the Court.
In order
to fulfil its mandate, the Office of the Prosecutor is composed of three
divisions: (i) the Investigation Division, which is responsible for the conduct
of investigations (including gathering and examining evidence, questioning persons
under investigation as well as victims and witnesses). In this respect, for the
purpose of establishing the truth, the Statute requires the Office of the
Prosecutor to investigate incriminating and exonerating circumstances equally;
(ii) the Prosecution Division, which has a role in the investigative process,
but whose principal responsibility is the litigation of cases before the
various Chambers of the Court; and (iii) the Jurisdiction, Complementarity and
Cooperation Division, which, with the support of the Investigation Division,
assesses information received and situations referred to the Court, analyses
situations and cases to determine their admissibility and helps secure the
cooperation required by the Office of the Prosecutor in order to fulfil its
mandate.
[19] The Registry helps the Court to conduct fair, impartial
and public trials. The core function of the Registry is to provide
administrative and operational support to the Chambers and the Office of the
Prosecutor. It also supports the Registrar's activities in relation to defence,
victims, communication and security matters. It ensures that the Court is
properly serviced and develops effective mechanisms for assisting victims,
witnesses and the defence in order to safeguard their rights under the Rome
Statute and the Rules of Procedure and Evidence.
As the Court's official channel of
communication, the Registry also has primary responsibility for the ICC's
public information and outreach activities.
[20] Report of the Secretary-General, In Larger Freedom: Towards Development,
Security and Human Rights for All (2005), at 36.
[21] The crimes in this article are the gravest known to
humanity and as provided for by article 29 of the Rome Statute, they are not be
subject to any statute of limitations. As noted by Hans-Peter Kaul, supra
note 6, at 4, these are the ‘... crimes against peace [that] are the
evil per se.’ (Emphasis is in the original.)
[22] Article 6 of the Rome
Statute defines genocide as the intentional destruction,
in whole or in part, of a national, ethnical, racial or religious group, by
either killing members of the group, causing
serious bodily or mental harm to members of the group, deliberately inflicting on the group conditions of life calculated to
bring about its physical destruction in whole or in part, imposing measures
intended to prevent births within the group, or forcibly transferring children of the group to another group.
Acts
of genocide were first condemned and rendered criminal by the declaration made
by the General Assembly of the United
Nations in its resolution 96 (I)
dated 11 December 1946 that genocide is
a crime under international law, contrary to the spirit and aims of the United Nations and condemned by the
civilized world. On 9 December 1948,
the General Assembly of the United Nations adopted the Convention on the Prevention and Punishment of the Crime of Genocide, as an undertaking to prevent and to punish genocide
internationally. The General Assembly recognized that at all periods
of history genocide has inflicted great
losses on humanity; and was
convinced that, in order to liberate mankind from such an odious scourge, international co-operation
is required. It came into force on 12 January 1951.
[23] Article 7(1) of the
Rome Statute defines crimes against humanity as either murder; extermination; enslavement; deportation or forcible transfer of
population; imprisonment or other severe deprivation of physical liberty in
violation of fundamental rules of international law; torture; rape, sexual
slavery, enforced prostitution, forced pregnancy, enforced sterilization, or
any other form of sexual violence of comparable gravity; persecution against
any identifiable group or collectivity on political, racial, national, ethnic,
cultural, religious, gender (which under paragraph 3 of this article refers to
the two sexes, male and female, within the context of society), or other grounds that are universally recognized as impermissible
under international law; enforced disappearance of persons; the crime of
apartheid; and other inhumane acts of a similar character intentionally causing
great suffering, or serious injury to body or to mental or physical health: when
committed as part of a widespread or systematic attack directed against any
civilian population, with knowledge of the attack. Paragraph 2 of this article defines the key terms and phrases as used
in paragraph 1.
Crimes against humanity were first formally
recognized by Article 6(c) of the Charter of the
International Military Tribunal (commonly known as the Nuremberg Charter), 1945 and found suitable for punishment under
international law by the International Military
Tribunal (Nuremberg), supra note 3, at 58-80.
[24] Article 8 of the Rome
Statute defines war crimes and gives an extensive
list of prohibited acts constituting such crimes. In short, war
crimes include grave breaches of the Geneva Conventions of 12 August 1949 and
other serious violations of the laws and customs applicable in international
armed conflict and in conflicts ‘not of an international character’ listed in
the Rome Statute, when they are committed as part of a plan or policy or on a
large scale; and among others include acts of murder; mutilation,
cruel treatment and torture; taking of hostages; intentionally directing
attacks against the civilian population; intentionally directing attacks
against buildings dedicated to religion, education, art, science or charitable
purposes, historical monuments or hospitals; pillaging; rape, sexual slavery,
forced pregnancy or any other form of sexual violence; conscripting or
enlisting children under the age of 15 years into armed forces or groups or
using them to participate actively in hostilities.
War crimes were also first formally recognized by Article
6(b) of the Charter of the International
Military Tribunal
(commonly known as the Nuremberg Charter), 1945 and found
suitable for punishment under international law
by the International Military Tribunal (Nuremberg), supra
note 3, at
58-80.
The purpose of the
1949 Geneva Conventions is to regulate warfare, with regard to non-combatants,
who, under the Conventions, should be treated with utmost respect and humanity.
They were necessitated by the atrocities of World War II, which unmasked the
savagery of mankind when innocent civilians were subjected to unprecedented
intolerable suffering and humiliation. In the Case Concerning Military and
Paramilitary Activities in and against Nicaragua: (Nicaragua v. United States
of America) (abridged version), 1986, at 9, the International Court of
Justice (ICJ) held that there is an obligation to respect the Geneva
Conventions and even to ensure respect for them, deriving from the general
principles of humanitarian law to which the Conventions merely give specific
expression.
[25] According to Hans-Peter Kaul, supra note 6, at 4, the incorporation of
this crime in this article was on the urging of Germany, apparently due to
its violent past under the aggressive gamble of Adolf Hitler and his followers,
as recorded in the judgment of the International Military Tribunal (Nuremberg), supra note 3.
The crime of aggression was later substantially
provided for in Article 8 bis
(1) of the Rome Statute, which it defines as meaning, ‘...
the planning, preparation, initiation or execution, by a person in a position
effectively to exercise control over or to direct the political or military
action of a State, of an act of aggression which, by its character, gravity and
scale, constitutes a manifest violation of the Charter of the United Nations.’
According to Hans-Peter Kaul, supra note 6, at 10, ‘The three
components “character, gravity and scale” of the act of aggression – not only
one or two of them – must cumulatively be present to satisfy the manifest
standard by itself.’
Paragraph
2 of this article states that ‘act of aggression,’ as used in paragraph 1,
means, among other things, invasion,
military occupation, and annexation by the use of force, blockade of the ports or coasts,
if it is considered being, by its character, gravity and scale, a manifest violation of the Charter of the United Nations.
Under this article, the perpetrator
of the act of aggression is a person who is in a position effectively to
exercise control over
or to direct the political or military action of a State.
It should be noted that the crime of aggression was first formally
recognized by Article 6(a) of the Charter
of the International Military Tribunal (commonly known
as the Nuremberg
Charter), 1945 and found suitable for punishment under
international law by the International Military Tribunal (Nuremberg), supra note 3, at 56, stating that,
‘In the opinion of the Tribunal aggressive war is a crime under International
Law.’
However, the crime of aggression has
been and still is controversial, in spite of these tremendous pronouncements.
For instance, while the Rome Statute provided for it under Article 5(1)(d) (as
it was then) as one of the crimes for which the ICC has jurisdiction to try,
paragraph 2 then of the same article (which has since been deleted) provided
that, ‘The Court Shall exercise jurisdiction over the crime of aggression once
a provision is adopted in accordance with articles 121 and 123 defining the
crime and setting out the conditions under which the Court shall exercise
jurisdiction with respect to this crime. Such a provision shall be consistent with
the relevant provisions of the Charter of the United Nations.’ Article 121
provides for amendment to the Rome Statute while Article 123 provides for
review of the same.
Consequently, the Assembly of States
Parties to the Rome Statute convened a Review Conference of the Rome Statute,
held in Kampala, Uganda, between 31 June and 11 May 2010, during which Article 8 bis was adopted.
The purpose of this amendment, as Professor William Schabas has
reportedly said, is to
help deliver the message, ‘... that war is the supreme evil, lying at the heart
of the human rights violations set out in the provisions on genocide, crimes
against humanity and war crimes;’ quoted by, Hans-Peter Kaul, supra note 6,
at 4.
But, the 2010 Kampala Review
Conference also adopted Articles 15 bis and 15 ter, which provides for exercise
of jurisdiction over the crime of aggression, the overall import of which is to
put further fetters on the ICC’s jurisdiction over this crime, as may be seen
clearly from Paragraphs 2 and 3 of these articles, which read together provide
that the Court may exercise jurisdiction
over the crime of aggression, only with
respect to such crimes committed one year after the
ratification of the amendment concerning this crime by at
least thirty States Parties and subject to a decision to be taken after
1 January 2017 by a two-thirds majority of States Parties. These are fairly
serious hurdles to overcome especially, in light of big-state-power and other
regional geopolitical and security interests at stake here.
In effect, the earliest time the ICC will be able to
exercise jurisdiction over the crime of aggression is 3 January 2018, assuming
all the requirements of Articles 15 bis
and 15 ter are fulfilled in the year
2017, starting 2 January of the same – which is no mean feat, considering the
complexity of international relations. For now, battle-hungry and war mongering
states are free to commits acts of aggression as much as they please, as long
as in so doing, they do not commit any of the other crimes in Article 5.
However, we should be confident and hopeful that at
the right time all will be well, because the biggest hurdles – of recognizing
that states do not have rights to be aggressive to the extent of waging wanton
wars, by condemning such acts through the crime of aggression – have already
been overcome in Rome and Kampala.
[26] Michael Struett, ‘Growing Pains: Assessing the First Seven
Years of the International Criminal Court’ (2009), at 4, says that, ‘Ultimately,
the ICC is a judicial body, and its decisions must be driven by legal and
evidentiary criteria, and not political ones.’
[27] Civil disputes like territorial or trade conflicts between
states and other international actors like organizations, are addressed by the
International Court of Justice (ICJ) and other regional or specialized courts
or tribunals.
[28] But I submit that the Court should not just serve the narrow
mandate of retributive justice. It should be moderately realistic and
pragmatic, by being alive to political and
humanitarian dynamics to the extent that it is both sensitive and proactive
regarding the security risks associated with its intervention in a given
situation by fully embracing the twin principles of protection and empowerment
of participants in its proceedings, whom they also affect. Being a key
player in the international scheme of things, Lauren Marie Balasco, supra note 9, at 46, rightly observes that, ‘... the Court must negotiate political
realities....’ This is important
for its legitimacy purposes, because the participants (alleged perpetrators, witnesses, and victims) engaged
in its processes, more often than not operate in highly politically charged
environments that are pertinent to their personal and collective security, as
well as security of their property. And so, as well argued by Balasco, ibid., ‘... the Court must ensure that its mission of achieving justice is done
without diminishing the security of the very people it seeks to represent. To
[entirely] dismiss such responsibilities as outside its purview will not only
compromise the very justice is seeks to sustain, but also diminish its claims
to be an apolitical actor within the international system.’ This is because, as
stated by Carsten Stahn, ‘The Future of International Criminal Justice’ THJP (2009), at 2, ‘... the effects of
justice cannot be measured only by what is actually going on in the Court room,
but by their impact internationally and domestically.’ Indeed, when the ICC
issued an international arrest warrant for the sitting President of Sudan, Mr
Omar Al Bashir, on 4 March 2009, Michael Struett, supra note 26, at 1, states
that the arrest warrant had immediate consequences for 13 humanitarian
groups expelled by Bashir’s government from the Darfur region following the
Court’s action, on accusations that those groups were acting as spies for the
ICC, which decision imperilled the people of Darfur with increase in suffering and mortality in the region, since the expelled
aid groups were the major providers of basic medical services there. So, public security concerns
vis-a-vis activities of the ICC are not far-fetched after all. Sadly, in
Balasco’s assessment (supra
note 9, at 48), ‘... the ICC’s overall performance in advancing the
human security agenda is poor and this weakness could compromise its ultimate goal
of securing global justice, which is understood as holding perpetrators
accountable for their actions and offering meaningful remedies to those
affected by conflict.’
Interestingly, as Balasco, Ibid., at 47 says, ‘The ICC
was created to not only hold individuals’ accountable for their actions but
also to provide those affected by violent conflict with the means to redress
their situation.’ This is why Article 79(1) of the Rome Statute established a Trust Fund for Victims out of which the judges may
order reparations to victims, including restitution, compensation and
rehabilitation. By operation of Article 77(2) of the Rome Statute, this Fund is
partly replenished by finances collected from fines and forfeitures of directly
or indirectly derived proceeds, property and assets of persons convicted by the
Court, from the crime committed by them under Article 5 of the Rome Statute. To
this end, the judges of the Court may make an order directly against a convicted person, in favour of the
victims. It should be borne in mind that the Rome Statute created two independent institutions: the International
Criminal Court and the Trust Fund for Victims, to help
survivors, in particular, the most vulnerable among them, rebuild their lives
and regain their dignity and status as fully-functioning members of their
societies. Indeed, the study by Chris Tenove, supra note 2, at 11, found that, ‘... justice was not conceived
purely in terms of retribution against a perpetrator, but also redress for
victims.’
[29] Balasco, supra
note 9, at 50, states that, ‘Current ICC Prosecutor Fatou Bensouda recently
stated that it is the responsibilities of other actors to be involved in
development and peace-building initiatives—goals that, according to her, expand
far beyond the Court’s mandate.’
However,
after establishing that justice and peace are inseparable, it must then be
conceded, in the words of Carsten
Stahn, ‘The Future of International Criminal Justice’ THJP (2009), at 3, that, ‘...
international justice is part and parcel of a broader peace-building process.’
Neither justice, nor peace, should be pursued at the other’s expense.
[30] In establishing the ICC, the States Parties to the Rome
Statute set up a system based on two pillars: the Court itself is the judicial
pillar, while the states are the enabling or operational pillar, which involves
the responsibility to enforce the Court’s decisions and orders, but also
carries with it all political and/or diplomatic processes that are
consequential to the Court’s judicial mandate.
[31] See also, Article 14
of the Rome Statute, Paragraph 2 of which states that, ‘As far as possible, a referral shall specify the relevant circumstances
and be accompanied by such supporting documentation as is available to the
State referring
the situation.’ Actually, three
of the seven situations currently under investigation by the ICC were referred
by the Democratic Republic of the Congo, Uganda and
the Central African Republic between 2003 and 2005.
[32] Under Article 16 of
the Rome Statute, the effect of this reference is that no
investigation or prosecution may be commenced or proceeded with under this
Statute for
a period of 12 months; moreover that request may be
renewed by the Security Council under the same conditions. It should be
recalled that the situations in Libya and in
Sudan’s Darfur region were referred by the United Nations Security Council by
two resolutions under Chapter VII of the UN Charter.
[33] See
also, Article 15 of the Rome Statute. The Prosecutor may invoke this mandate
independently or when requested to
carry out an investigation by a state not party to the Rome Statute, by accepting the ICC’s
jurisdiction with respect to crimes committed in
its territory or by one of its nationals. Ivory Coast did
this in the case of the Situation in
the Republic of Côte d'Ivoire. On 18 April
2003, it issued the required declaration under article 12(3) of the Rome
Statute (declaration available here http://www.icc-cpi.int/NR/rdonlyres/CBE1F16B-5712-4452-87E7-4FDDE5DD70D9/279779/ICDE.pdf,
accessed on 5 January 2015, at 11:51 hrs). On 14 December 2010, the Ivorian
President issued a letter reconfirming the acceptance of the ICC jurisdiction
in the matter (declaration available here http://www.icc-cpi.int/NR/rdonlyres/498E8FEB-7A72-4005-A209-C14BA374804F/0/ReconCPI.pdf,
accessed on 5 January 2015, at 11:56 hrs). On 23 June 2011, the
Prosecutor filed his ‘Request for authorisation of an
investigation pursuant to article 15 of the Rome Statute. On 3 October 2011, Pre-Trial
Chamber III, granted the granted the Prosecutor’s request (decision available here http://www.icc-cpi.int/iccdocs/doc/doc1240553.pdf,
accessed on 5 January 2015, at 12:09 hrs). The case is still ongoing before the
Court.
[34] Under Article 68(3) of the Rome Statute and Rule 85 (a) of the Court’s Rules of Procedure and Evidence, where the personal interests of
victims are affected, they are permitted (either by themselves or through a
qualified legal representative of their choice) to present their views and
concerns for the Court’s consideration at stages of the proceedings it
determines to be appropriate and in a manner which is not prejudicial to or
inconsistent with the rights of the accused and a fair and impartial trial.
Indeed, the
Court’s Appeals Chamber found so in its judgment of 11 July 2008, in the case of the Situation
in the Democratic Republic of the Congo: The Prosecutor Vs Thomas Lubanga Dyilo. The Court also found
that the harm suffered by victims must necessarily be personal harm, although
it does not necessarily have to be direct.
[35] Michael Struett, supra note 26, at 1. Struett says (Ibid.,
1-2) that, ‘The ICC is a carefully designed international criminal judicial
body, bound by law in a world where most political relationships are still
characterized by a substantial degree of anarchy, or the loosely coordinated
actions of independent states. This reality is highlighted when we see the
court issue carefully crafted arrest warrants following extensive
investigations and judicial review; mostly followed by inaction on the part of
states that have the legal duty and executive authority to carry out those
warrants.’
[36] Luis
Moreno Ocampo, supra note 1, says
that increasingly we are more aware, so much so that it seems that everything
is taking place under the unobstructed gaze of humanity; such that while in the
past violations went unnoticed, this is not possible any more. That nowadays
consciousness has been described as being cognizant of other people’s gazes and
that gaze is now omnipresent: it is all around us all the time.
[37] Richard Dicker and
Elise Keppler, supra note 8, at 2, says that, ‘The
court has engendered great expectations.’ These achievements are
in spite of its peculiar challenges and inadequacies like its budgetary constraints, the severity of conflicts under
its investigation, ideological hostility, but most importantly, its potential
politicization that has recently brought it under fire from the African
Union and African leaders individually, who accuse it of being neo-colonialist,
imperialist and racist, by targeting them. These leaders resolved not to cooperate with the ICC and
threatened to withdraw from its membership (See for instance, an African
Union Press Release, ‘Decision on the Meeting
of African States Parties to the Rome Statute of the International Criminal
Court (ICC)’ dated 14 July 2009;
available at http://www.haguejusticeportal.net/Docs/Court%20Documents/ICC/African%20Union%20Press%20Release%20-%20ICC.pdf,
accessed on 5 January 2015, at 17:09 hrs). See also, Michael Struett, supra note 31, at 2. Although the Court
vehemently denies these accusations, there are indicators that justify this
criticism, key among which is the fact that so far, all situations fully
investigated and people so far indicted, tried and convicted, by the ICC are
Africans. The ICC should shed off this banner of shame and improve on its image
and perception, at least in Africa, by also paying attention to crimes
committed elsewhere, because international law crimes are not committed in
Africa alone.
[38] Chris Tenove, supra note 2.
[39] Universal
Declaration of Human Rights
of 10 December 1948;
as stated in
paragraph two of the Preamble
thereto. Richard Dicker and Elise Keppler, supra note 8, at 2, describes
the establishment of the ICC as, ‘... a huge
step forward for human rights....’
[40] As envisaged by the Universal Declaration of Human Rights, Ibid.
[41] Lauren Marie Balasco, supra
note 9, at 46.
[42] For instance, the ICC
website is easily accessible and freely provides all relevant documents thereon
for public consumption. It is also regularly updated to capture developments
and on-goings in the Court. This is good enough. But there is more – the icing on
the cake: in fact, the ICC officials, sitting as far away in The Hague, The
Netherlands, are in touch with possibly the smallest person, living in perhaps
the remotest part of the globe. Once contacted, those officials respond
promptly and adequately. I have personal evidence to prove it. On Monday, 16
September, 2013, I wrote a letter addressed to the President of the ICC,
referring to the Situation in the Republic of Kenya; The Prosecutor v. William Samoei Ruto and
Joshua Arap Sang, basically requesting the Court not to heed proposals by governments
of named East African states that the ICC should discontinue its proceedings in
this case. I also decried the tendency that the Court is purposively targeting
Africans and African leaders. I sent the letter by e-mail on contacts available
on the ICC website. My letter was responded to (also via e-mail) by the Court’s
Head of the Outreach Unit, in a letter written on its headed paper and
addressed to me, dated 26 September 2013 (available as a comment below the link
earlier provided to my letter). Further,
in the response, I was referred to the ICC Outreach Coordinator for Kenya and
Uganda, who in fact took the initiative and courtesy to call me on my mobile
phone number, to further discuss the Court’s work. Now, this correspondence is
important to me as a person, because it brings the ICC so close to me that it
seems just a stone-throw-away. And this makes more sense to me when I consider
the number of times my letters to my leaders in Uganda have gone unanswered and
sometimes the merits of the same simply going ignored and unaddressed.
[43] I also have personal
testimony here. I recall that after my correspondence with the ICC, supra note 42, I applied to visit the
Court and even attend a court session. I filled a form available on the ICC
website. It was easy to understand and fill in. In about two weeks (within the
time indicated on the form), I was informed that my request had been granted,
the date and time for my scheduled visit being stated. Unfortunately, I did not
go, because I could not afford transport from Uganda to The Netherlands. But
the ease with which the Court had given me access gave me a psychological
feeling and sense of ownership. Such positive perception enhances the ICC’s
credibility and legitimacy.
[44] Patrick Vinck and Phuong N. Pham, ‘Outreach Evaluation: The International
Criminal Court in the Central African Republic’ IJTJ (2010), at 2.
[45] See, Preamble to the
Rome Statute.
[46] My judgment is based
on the rational system approach
measure, which Yuval
Shany, ‘Assessing the Effectiveness of
International Courts: Can the Unquantifiable be Quantified?’ (2010), at
10, says, ‘... offers a rather straight forward formulation: “an action is
effective if it accomplishes its specific objective aim.”’ Under this approach,
as Yuval Shany, Ibid., at 10-11,
says, regard must be had to, ‘... the organization's aims or goals – i.e., the
desired outcomes it ought to generate, and ascertain the time frame over which
some or all of these goals can reasonably be expected to be met.’ In my
analysis and description of the Court and its activities, I had to contend with
the question whether the ICC is effective;
and using the rational system approach performance standard, I have to
the conclusion that it is, although I submit that it can (and will) be much
better.
[47] Report of the Secretary-General, supra note 20.
[48] Carsten Stahn, ‘The Future of
International Criminal Justice’ THJP
(2009), at 2, notes that international justice today appears to be in a stage
of transition, fortunately, with continuing commitment to its cause. Surely,
the ICC cannot outperform its driving force. To expect otherwise, would be akin
to the proverbial putting of the cart before the horse, which is a situation of
utter impossibility.
[49] The paradigm shift
from absolute intra-state justice mechanisms to complementary inter-state
justice mechanisms is in recognition of the fact that in an interconnected
world, the capacity of states, operating on their own, is highly constrained.
On the contrary, much more can be done when states and people globally,
cooperate and work together. As the saying goes, many hands make the work
light. International justice mechanisms also help in filling gaps and curing
entrenched absurdities, both real and potential, in the tradition of absolute
intra-state justice mechanisms. For example, consider the long established rule
of international law that a sitting foreign minister is immune from
prosecution in another country’s court system regardless of the seriousness of the
crimes with which he or she is charged – and confirmed by the International Court of
Justice (ICJ) in the Case Concerning the Arrest Warrant of 11
April 2000 (Democratic Republic of the Congo V. Belgium) [The Yerodia Case] of February 2002. The double absurdity in this rule is that while it is open to abuse by
promoting impunity behind the veil of immunity, the reverse i.e. states trying
one another’s diplomats, is also open to misuse in a power-based international
order by particularly powerful states using it for bullying and witch-hunting
their less powerful counterparts for purposes of having the latter submit to
the former’s interests. Fortunately, the ICJ, in its decision in this case,
noted that such officials would not be immune to prosecution before
international criminal courts where these courts have jurisdiction. This
decision cures the absurdities and lacunas of traditional international law:
impunity is combated, while at the same time, misuse is deterred.
[50] Report of the Secretary-General, supra note 20.
[51] As noted by Michael
Struett, supra note 26, at 4, ‘States remain the legislative
and executive authorities in the international legal system, and it falls on
them to consider the political ramifications of setting the rules for which
crimes should be prosecuted, and when and where particular warrants should be
enforced. ... The moral responsibility also falls on states when they
deliberately contribute to or simply ignore the continuation of serious
international law crimes. Only universal ratification of the Rome Statute will
ensure that the ICC can be territorially neutral in determining which cases are
the most serious crimes of international concern.’
[52] Indeed, Luis Moreno
Ocampo, supra note 1, advises that we
need to keep working the national systems to make them better, by defining what
should be the concern and responsibility of the national system and what should
be the concern of the global system.
Further, in his
acceptance speech upon being elected first prosecutor of the ICC, Mr Ocampo
said that, ‘The efficiency of the International Criminal Court should not be
measured by the number of cases that reach the court or by the content of its
decisions. Quite on the contrary, because of the exceptional character of this
institution, the absence of trials led by this court as a consequence of the
regular functioning of national institutions, would be its major success.’ (See, Election of the Prosecutor, Statement by Mr. Moreno
Ocampo, ICC-OTP-20030502-10; available at http://www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/office%20of%20the%20prosecutor/reports%20and%20statements/press%20releases/press%20releases%202003/Pages/election%20of%20the%20prosecutor_%20statement%20by%20mr_%20moreno%20ocampo.aspx,
accessed on 5 January 2015, at 13:33 hrs.)
Carsten Stahn,
supra note 48, at 3, agrees with Mr
Ocampo’s views saying that, ‘Effects of justice are only sustainable if they
are embedded and followed by consecutive domestic action. If international
criminal courts wish to leave a ‘lasting footprint’ on domestic societies, they
must develop strategies to empower domestic institutions. This requires fresh
thinking as to how international courts and tribunals interact with domestic
jurisdictions in individual situations, in terms of mutual legal assistance and
cooperation and sharing of responsibilities.’
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