Is the ICC an appropriate mechanism for punishing human rights violations? Why or why not?
The ICC can only provide jurisdiction to cases that have occurred after the 1st of July 2002 and hence, their ability as a court to punish state criminals is limited to criminals of the last decade and a half. The Rome Statute of the ICC states that the court shall be limited only to crimes of international concern which entail: The crime of genocide, Crimes against humanity, war crimes and the crime of aggression (Legal.un.org, 2018). However, there are several other crimes that could affect the whole world like drug trafficking, terrorism, tax evasion and corruption among many others and the ICC being the only court that could provide jurisdiction at international levels it is so unfortunate that it is limited to provide jurisdiction to such crimes. The ICC does not provide universal jurisdiction. Relatively, crimes that are covered by the regulation must be committed in a state that has given consent to the statute or by an accused national from a state that has given consent .The ICC is also reliant on the co-operation from the states that it is providing jurisdiction to, because it needs to get access to witnesses, archives and intelligence information. If the states do not cooperate effectively then the ICC may not be able to provide jurisdiction to its ability. This essay argues that the ICC is not the appropriate mechanism for punishing human rights violations.
As much as the International Criminal Court is entitled to the jurisdiction of only states that have ratified the Rome statute, it is evident that in the last ten years it has been providing jurisdiction to most of the African states as compared to the Europe states. The International Criminal Court currently has 123 states that have ratified the Statute of which 33 are African states, which comes down to approximately 27% indicating that Africa has the majority of states that have ratified the Statute. The international law, is limited to crimes that are being committed mainly in Africa in a world that has a lot of states that commit the same crimes. (Plessis, Maluwa and O’Reilly, 2018). Security Council has the authority to refer a case to the ICC and thus it has referred other cases like for Libya and Darfur region in Sudan and left some cases like the Syria and Israel case. This situation enhances the fact that the ICC has African bias. The prosecutor has the power to select a case to prosecute, however, this should be done without any favor. The decision for a prosecutor to concentrate on African situations and ignore international crimes like in Iraq by the British forces, Colombia, Comoros and Palestine raise doubts on whether the prosecutors have practiced biasness towards African states (Dugard, 2013). For the Palestine on the 27th December 2008 Israel attacked Gaza and there was clear evidence on the crimes committed, the attack led to 1400 Palestinians deaths and also the wounding of 5000, but the ICC could still not provide jurisdiction because it did not find the case to be clear. Thus, the African states that have given consent to the Statute should come together to ensure that the ICC conducts a fair jurisdiction to all the states that are part of the statute.
However, the ICC prosecution by the ICC targeting political and military leaders and subjecting them to a threat of punishment can generate a form of deterrence. The establishment of the ICC enhances on the end of impunity for perpetrators and hence it helps in the prevention of such crimes. Prosecutions can restore international peace and security. Since the ICC is a permanent International court it would increase the deterrence effect because the amount of prosecution for serious offences will increase too. According to (McGoldrick, Rowe and Donnelly, 2004) this can be seen when punishment against Serbia was stopped since people who were arraigned for crime before were still in power and therefore, 40 million was secured when the Milosevic was handed over to the International Criminal Tribunal for Yugoslavia. Thus, Croatia has been forced to give in to the International Criminal Tribunal for Yugoslavia and this has led to many other individuals turning themselves to ICTY. Moreover another evidence that the ICC has helped to generate a form of deterrence can be seen in the case of Kenya, Africa. In 2007 Kenyans did an election to vote for their political leaders including the president. After the presidential results came out and the Party of National Unity had won against the Orange Democratic movement, the supporters of the Orange Democratic Movement disagreed with the results and they attacked the Party of National Unity supporter. This led to massive destructions of property, death of nearly 1,113 and more than 350,000 Kenyans were displaced (Nichols, 2015). Eventually the ICC intervened and prosecuted the suspects of the crimes and even though the ICC did not end up having adequate evidence to support its case against the witnesses, the prosecution process and the intervention of the ICC helped Kenyans to gain a little more Faith in the Criminal Justice system. Kenyans held elections in the year 2013 and the election process was peaceful and this was evident that the ICC had some impact.
The Rome statute of the ICC does not exercise universal jurisdiction. However, it states that for the ICC to provide jurisdiction, the crime committed must be done by a person from a state that has ratified or the crime should have been committed by a state that has given consent to the Rome statute. Security Council of the United Nations can also provide Jurisdictions to state but it can also suspend or refer cases to the ICC (Volcansek, 2005). It is definitely objecting to one of the main objectives of the Court which is to put an end to impunity, this can hardly be achieved if the ICC cannot provide jurisdiction to all international crimes. In addition to the lack of universal jurisdiction, is the complementarity principle that states that the ICC can only determine a case if the state is not able or is not genuinely willing to carry out its prosecutions. This laws in the Statute make the situations complicated. For instance if we take a look at the United states of America, besides it being the world’s super power, it is among the states that have not ratified the state. For example if a member of the U.S.A military is found guilty of committing a crime while working at a state that has given consent to the statute, then the U.S.A by all means can take control of the case and prosecute it by its own using the military law process. The principle of complementarity should be used under clearly defined conditions ((Ryngaert, 2009).
As discussed in the essay above, the ICC is limited in providing jurisdiction in many ways. In the past ten years it has been noted that the ICC has prosecuted most of its cases that are from the African states despite the fact that the Security Council refers it to them, the prosecutor has the ability to choose which cases they are supposed to prosecute at a time. In the case of Syria, Israel, Libya and Darfur the prosecutor chose to prosecute the case of the African states that was the case of Libya and Darfur in Sudan. However the ICC has created a form of deterrence which would in turn lead to the end of impunity by perpetrators in time. It has helped national from some of the states that have been involved in the prosecution process to regain Faith in the criminal justice system for example Kenya. The inability of the ICC to provide universal jurisdiction is such a big challenge especially when states are allowed to prosecute cases universally. This could cause some states to misuse their ability to have universal jurisdiction. My contention in this essay is that the ICC is not the appropriate mechanism for punishing human rights violations.
Legal.un.org. (2018). Rome Statute of the International Criminal Court, 1998. Online Available at: http://legal.un.org/icc/statute/99_corr/cstatute.htm Accessed 28 May 2018.
Plessis, M., Maluwa, T. and O’Reilly, A. (2018). Africa and the International Criminal Court. Online Chatham House. Available at: https://www.chathamhouse.org/publications/papers/view/193415 Accessed 28 May 2018.
Dugard, J. (2013). Palestine and the International Criminal Court: Institutional Failure or Bias? Journal of International Criminal Justice, online 11(3), pp.563-570. Available at: https://doi-org.ezproxy.lib.monash.edu.au/10.1093/jicj/mqt025.
McGoldrick, D., Rowe, P. and Donnelly, E. (2004). The Permanent International Criminal Court. Oxford: Hart, pp.459-460.
Nichols, L. (2015). The International Criminal Court and the end of impunity in Kenya. Cham Switzerland: Springer, pp.47-67.
Volcansek, M. (2005). Courts crossing borders. 1st ed. Durham, N.C: Carolina Academic Press, pp.178-179.
Ryngaert, C. (2009). The International Criminal Court and Universal Jurisdiction: A Fraught Relationship? New Criminal Law Review, 12(4), pp.498-512.