COURSE
COURSE: INTERNATIONAL LAW
COURSE INSTRUCTOR: PROFFESOR G. L. WAJACKOYAY
TASK: GROUP WORK (INTERNATIONAL CRIMINAL COURT)
GROUP MEMBERS
Kipruto Oliver- 653425
Isse Mohamed Omar- 650848
Issa Alia Yassin -650814
Donna Mkopa Zua -651901
Kinoti Brenda Ntinyari-650357
Gitonga Eunice Muthoni -650426
Mworia Joy Floridah. N.-649513
Mbogo Martin Benson-649078
Mutheu Laureen Wandu-651429
Introduction
Meaning of ICC
The ICC stands for International Criminal Court .It’s an intergovernmental organization and international tribunal that sits in The Hague in Netherlands. The ICC has the jurisdiction to prosecute individuals for the international crimes of genocide, crimes against humanity and war crimes. The ICC is intended to complement existing national judicial systems and it may therefore only exercise its jurisdiction when certain conditions are met, such as when national courts are unwilling or unable to prosecute criminals or when the United Nations Security Council or individual states refer situations to the Court. (The International Criminal Court: An Introduction, Retrieved 25 November 2012.)
History of International Criminal Court (ICC)
The establishment of an international tribunal to judge political leaders accused of international crimes was first proposed during the Paris Peace Conference in 1919 following the First World War by the Commission of Responsibilities. The issue was addressed again at a conference held in Geneva under the auspices of the League of Nations in 1937, which resulted in the conclusion of the first convention stipulating the establishment of a permanent international court to try acts of international terrorism. The convention was signed by 13 states, but none ratified it and the convention never entered into force. (Bassiouni, 2004)
Following the Second World War, the allied powers established two ad hoc tribunals to prosecute axis power leaders accused of war crimes. The International Military Tribunal, which sat in Nuremberg, prosecuted German leaders while the International Military Tribunal for the Far East in Tokyo prosecuted Japanese leaders. In 1948 the United Nations General Assembly first recognized the need for a permanent international court to deal with atrocities of the kind prosecuted after the Second World War. At the request of the General Assembly, the International Law Commission (ILC) drafted two statutes by the early 1950s but these were shelved during the Cold War, which made the establishment of an international criminal court politically unrealistic. (Bassiouni, 2004)
The General Assembly convened a conference in Rome in June 1998, with the aim of finalizing the treaty to serve as the Court’s statute. On 17 July 1998, the Rome Statute of the International Criminal Court was adopted by a vote of 120 to 7, with 21 countries abstaining. The seven countries that voted against the treaty were China, Iraq, Israel, Libya, Qatar, the United States and Yemen. Israel’s vote against was due to the inclusion in the list of a war crimes of the action of transferring population into occupied territory Following 60 ratifications, the Rome Statute entered into force on 1 July 2002 and the International Criminal Court was formally established the first bench of 18 judges was elected by the Assembly of States Parties in February 2003. They were sworn in at the inaugural session of the Court on 11 March 2003. (Bassiouni, 2004)
What instruments created the International Criminal Court (ICC)
The Rome Statute is the treaty that established or rather created the International Criminal Court (ICC). The ICC was to be an international tribunal and intergovernmental organization that would prosecute all individuals for international crimes of genocide, war crimes and crimes against humanity. One hundred and twenty states voted for it and China, Iraq, Israel, Libya, Qatar, the United States of America and Yemen voted against. Twenty one states abstained. The statute of the ICC, adopted at an International conference in Rome in 1998, provides a complete and authoritative statement of international criminal law. (Scharf, August 1998).
Organs of International Criminal Court (ICC)
The ICC has four principal organs: the Presidency, the Judicial Divisions, the Office of the Prosecutor and the Registry. The President is the most senior judge chosen by his or her peers in the Judicial Division which hears cases before the Court. The Office of the Prosecutor is headed by the Prosecutor who investigates crimes and initiates proceedings before the Judicial Division. The Registry is headed by the Registrar and is charged with managing all the administrative functions of the ICC, including the headquarters, detention unit and public defense office. (Article 38 of the Rome Statute)
The Presidency
The Presidency is headed by the President and First and Second Vice-Presidents, who are elected by an absolute majority of the 18 judges of the Court for a three-year period which is renewable. The current president is Chile Eboe-Osuji. The judges are allocated to serve on a full-time basis in the different chambers of the Court (Pre-Trial, Trial and Appellate). The Presidency is responsible for the proper administration of the Court, although the OTP (office of the prosecutor) is an independent office and as such is not administered by, but coordinates with, Presidency as necessary. (Article 38 of the Rome Statute)
The Judicial Division
The Judicial Divisions consist of the 18 judges of the Court organized into three chambers, the Pre-Trial Chamber, Trial Chamber and Appeals Chamber which carry out the judicial functions of the Court. Judges are elected to the Court by the Assembly of States Parties. They serve nine-year terms and are not generally eligible for re-election. All judges must be nationals of states parties to the Rome Statute, and no two judges may be nationals of the same state. They must be persons of high moral character, impartiality and integrity who possess the qualifications required in their respective States for appointment to the highest judicial offices. The Prosecutor or any person being investigated or prosecuted may request the disqualification of a judge from any case in which his or her impartiality might reasonably be doubted on any ground. Any request for the disqualification of a judge from a particular case is decided by an absolute majority of the other judges. A judge may be removed from office if he or she “is found to have committed serious misconduct or a serious breach of his or her duties” or is unable to exercise his or her functions. The removal of a judge requires both a two-thirds majority of the other judges and a two-thirds majority of the state’s parties. (Article 36 of the Rome Statute)
The Office of the Prosecutor (OTP)
The Office of the Prosecutor is headed by a Chief Prosecutor, who is elected by the Assembly of States Parties. As of 16 June 2012, the Prosecutor has been Fatou Bensouda of Gambia. The OTP is independent of other organs of the Court but coordinates its activities with other parts of the Court as necessary. The mandate of the OTP is to conduct investigations and prosecutions of crimes that fall within the jurisdiction of the Court as mentioned above. (The International Criminal Court: An Introduction, Retrieved 25 November 2012)
The Registry
The Registry is responsible for the non-judicial aspects of the administration and servicing of the Court. The current registry is Herman von Hebel. The Registry is responsible for court management including defense counsel, victims and witnesses’ matters, outreach, the administration of legal aid, detention unit and other general administrative matters such as finance, translation, building management, procurement and personnel. (International Criminal Court, the Registry 21 July 2007)
How International Criminal Court (ICC) was formed
After the Second World War (1939-1945), the international community recognized the need to deal with mass atrocities committed by Germany and Japan at the international level. The International Military Tribunal (IMT) in Nuremburg Germany and Tokyo war crimes Tribunal, established as first generation tribunals to prosecute high level individuals and complicit war crimes came into force through the 1945 London agreement signed by the major Allied powers. The United States, the United Kingdom, France and the Soviet Union. (M. Struett, 2008)
The agreement included a charter for the establishment of an international military tribunal in which the major axis war criminals would be tried for war crimes that had no particular geographical location, The London Agreement included the Nurnberg charter, which created four categories of international crimes ;crimes against the peace involved the initiation of war, war crimes involved murder ill treatment and deportation ,crimes against humanity involved persecution of civilians for race, ethnicity, political or religious beliefs ,and genocide, which involved bringing about the destruction of a particular national ,ethnic, racial or religious group. (M. Struett, 2008)
The Nurnberg charter was quickly followed by the Tokyo charter and the trials of Japanese war criminals by the international military Tribunal for the Far East. As WWII came closer several attempts at determining an enforceable definition of war crimes eventually culminated in four Geneva convections revised and adopted in 1949.The Geneva conventions established legal guidelines for the treatment of combats ,prisoners of war and civilians during war. (M. Struett, 2008)
The idea of an international criminal justice system began to emerge in the form of negotiations surrounding the ICC statute. Events in Yugoslavia, Sierra Leone and Rwanda saw the world witness mass atrocities for which the international system at the time was unprepared. In response, ad hoc tribunals were established to address each situation although these tribunals had limited mandates and jurisdiction authorized by the UN .Undoubtedly the events of WWII, The dissolution of Yugoslavia and the genocide in Rwanda had the significant impact on the decision to construct the Rome statute which established the permanent ICC. (M. Struett, 2008)
Why International Criminal Court (ICC) was formed
Creation of the international criminal court was formed as a result of the fulfilment of a goal that began with the Nuremberg and Tokyo trials. The Nuremberg trial saw the prosecution of crimes done during the holocaust, in which the Germans carried massacred the Jewish population of Europe, as part of the “Final solution” (Nazi policy to murder Jews of Europe). In addition, gypsies, the disabled were also deemed inferior while other groups such as communists, socialists, Jehovah Witnesses and homosexuals were targeted on political, ideological and behavioral grounds. Nuremberg, Germany was the site for trials that took place in 1945 and 1946 however, by that time the main mastermind of the crimes, Adolf Hitler had already committed suicide. During the trial, judges from the allied powers; Great Britain, France, Soviet Union and the United States, presided over the hearings of twenty two major Nazi criminals. Twelve of them were sentenced to death and admitted to have committed the crimes, following orders of a higher authority (Adolf Hitler).
The Tokyo trial took place in Tokyo, Japan from 1946 to 1948, where the international military tribunals for the Far East began hearing the case against 28 Japanese military and government officials accused to have committed war crimes and crimes against humanity during World WarII. Unlike the Nuremberg trial however, which had four chief prosecutors representing Great Britain, France, United States and the USSR, the Tokyo trials only had one chief prosecutor, American Joseph B. Keenan. The trial ended with 25 of 28 Japanese defendants being found guilty. Of the three others, two had died during the trial and one declared insane. The Japanese war crimes, defined as the Holocaust in the Asian world took place in Korea, China, Malaysia, Indonesia, Philippines, Singapore and other Asian countries during times of World War II. Japan’s Military forces were held responsible for the crimes and the massacre of war prisoners and civilians. Some of the crimes was the Nanjing Massacre, massive use of chemical weapons, insensitive human experimentation, Palawan Massacre among others. Emperor Hirohito, believed to have masterminded the crimes was never tried for his silent approval of Japanese policy during the war, but was rather protected by US authorities who saw him as a symbol of Japanese unity and conservatism. (Mark, 2009)
The International Criminal Court, established in 1998 by an international treaty in Rome, it was created to provide justice for genocide, crimes against humanity and war crimes when national systems fail. It is a court of last resort for victims, a permanent instrument of justice to replace the ad hoc UN tribunals set to deal with Yugoslavia and Rwanda. (Mark, 2009)
Has International Criminal Court (ICC) fulfilled its mandate?
The core mandate of the ICC is to act as a court of last resort with the capacity to prosecute individuals for genocide, crimes against humanity and war crimes when national jurisdictions for any reason are unable or unwilling to do so. The ICC international criminal court has failed in its mandate by turning a blind eye to atrocities in other countries by the western, the civil war in Syria and the Israeli-Palestinian conflict but unfairly and discriminatory targeting Africa’s heads of state. “Civil war in Syria has killed more than 100,000 and displaced almost two million”. “The Israel-Palestine conflict has killed more than 1,500 and 8,265 injured yet ICC choses to focus on African states. (Gerhard, 2014)
Despite that it has been able to achieve certain things. Some of these are that it appears to be at the vanguard of global and regional human rights and democracy movements. It is not just that demands for justice, human rights and accountability have been particularly pervasive in recent months and years it’s that these demands are coming from places few imagined they would. I don’t think anyone could have predicted pre-2011 that protesters across the Middle East and North African would take to the streets demanding that their autocratic despots be sent to The Hague. Yet that’s exactly what’s happened. Of course, this isn’t to say that the provision of ICC justice is all hunky dory. Indeed, both Dicker’s and Polgreen’s pieces have the word “flawed” in them. But still, it is impossible to deny the extent to which international criminal justice has shaped how oppressed citizens communicate their grievances and express their vision of how to do away with repressive governance. (Gerhard, 2014)
The greatest achievement of the ICC is that it has been instrumental in creating a global discussion on justice in the wake of massive human rights violations and atrocities. International relations today is, to a significant extent, about how to achieve justice, for whom and when. Increasingly, peace building and conflict resolution processes are interwoven with those of post-atrocity justice. The permanency of the ICC appears to be making this process itself permanent. In regards to whether ICC has fulfilled its mandate or not is a debatable question. Some authors and scholars argue that ICC has fulfilled its mandate while others believe that it has not. Whether ICC has fulfilled its mandate or not can be related to its successes and failures. (Gerhard, 2014)
Criticism of International Criminal Court (ICC)
Critique is often a reflection of deeper frictions that the Court itself is unable to solve, historical inequalities, geo-political frictions or tensions between global, regional and local interests. Political violence in many ICC cases has complex causes and origins. Treating the Court like a tool that can be turned on and off like an electronic device to fix accountability dilemmas is likely to result in artificial quick-wins, or long-term failure. A balanced assessment of the Court requires a fresh look at fair and unfair critique. There is first a need for a certain sense of modesty. The ICC isn’t the solution to all accountability problems, nor is international criminal justice suited to ‘solve’ or fix deeper societal divides. It might be counterproductive to present it as a source of salvation. (Bassiouni, 2004)
Second, it is becoming clear that whatever international justice institutions do, the ICC is likely to disappoint one constituency or another. Where they act, they may have criticized for interfering with political priorities, such as negotiations or political settlements. Where they are absent, such as in Syria or North Korea, their absence is deplored. (Benedict et al., 2005)
Third, what is presented as a tension might not always be a ‘negative’ tension? The Statute is full of ambiguities and dilemmas that cannot be solved in the abstract. Ultimately some of these tensions may be ‘positive’ rather than ‘negative’ tensions. Take the debates on ‘peace and justice’ for instance. Intervention in ongoing conflict remains a problem for the ICC and is likely to remain a challenge in the future. (Stone, 2006)
The ICC has received more than 9,000 complaints about alleged crimes in more than 139 countries, yet its singular focus seems to be on Africa. All the countries where the ICC has opened investigations to date are on the African continent. “At a time when there is conflict in the Middle East, Asia and Latin America and when the armies of many Western nations are getting up to all sorts of bad things around the globe, to have a war crimes court which only investigates blacks really is as perverse as it would be to have a court in Britain that investigated black burglaries and ignored white ones,” Brendan O’Neill wrote in 2012 in The Telegraph, a normally conservative British newspaper.
Taken at face value, it’s not hard to see why the AU has been a vocal opponent of the ICC’s indictments. Despite appearances, the ICC doesn’t only seek out African war crimes to investigate. It is also undertaking preliminary investigations in countries like Colombia and Afghanistan. Even if the court did decide to open investigations in these countries, however, it would still face the charge that it never wants to prosecute rich and powerful Western nations. Where is Tony Blair’s indictment? Critics ask. Where is George W Bush’s?
The latter question is easily answered: the US, despite sounding off about South Africa’s failure to arrest Omar al-Bashir, has not ratified the 1998 Rome Statute the treaty founding the International Criminal Court. The USA’s refusal to do so is understood as stemming partly out of concern that its foreign troops would face prosecution, and partly out of a characteristic Bush-administration refusal to compromise US sovereignty in matters of justice. (Bassiouni, 2004)
Defenders of the court point out that five of the eight countries before the court (Uganda, DRC, Central African Republic, Ivory Coast and Mali) requested the involvement of the court. Critics retort that these governments were effectively held hostage on the matter, with serving leaders told by the ICC’s first prosecutor that either they refer their countries to the court for the investigation of warlords and rebels, or face indictment themselves. (Benedict et al., 2005)
ICC insiders say that the weakness of the first prosecutor has heavily contributed to the court’s PR problems today, particularly when paired with a very poor communications strategy. The ICC’s initial prosecutor was Argentinian lawyer Luis Moreno-Ocampo. AU chair Jean Ping said in 2011: “Frankly speaking, we are not against the International Criminal Court. What we against is Ocampo’s justice the justice of a man.” (Goldsmith and Posner, 2005)
Under Moreno-Ocampo there was a high staff turnover at the ICC, never usually a sign of a healthily functioning institution. Moreno-Ocampo also oversaw the collapse of the court’s first case against Congolese warlord Thomas Lubanga, on the grounds that the prosecution had wrongly withheld evidence which could have supported Lubanga. (Goldsmith and Posner, 2005)
It was Moreno-Ocampo who made the decision to charge al-Bashir with genocide in 2008, despite critics arguing that though there was plenty of other war crime-related evidence against al-Bashir, it was insufficient to warrant a genocide charge. The UN Commission of Inquiry on Darfur found in 2005 that the Sudanese government had not pursued genocide in Darfur.
Moreno-Ocampo was also accused of grandstanding for publically announcing the charge, rather than requesting a sealed warrant. The fact that al-Bashir was also a serving head of state at the time opened the ICC up to accusations that it was trying to accomplish “regime change”, in the words of British academic Alex de Waal.
The notion that the ICC is the pawn of wider political currents has also been levelled repeatedly. The UN Security Council can refer cases to the court – but these are subject to the Security Council’s own internal politicking, which may keep countries outside Africa safe. Because China and Russia have veto power on the Security Council, for instance, a country like North Korea might never face ICC investigation.
“Ultimately, the ICC’s ‘obsession’ with Africa has to be understood as a factor of both the court’s limited legitimacy and its dependence on the politics of the UN, rather than base racism,” Mattia Cacciatori wrote for The Conversation in October 2014.
Morena-Ocampo’s replacement as prosecutor with Fatou Bensouda of Gambia in 2012 was hailed as offering the promise of a new dawn for the court. The mere fact of Bensouda hailing from Africa, however, has not shielded her from allegations of the ICC’s ongoing bias. Writing in 2014, Bensouda pointed out that the ICC’s jurisdiction is limited.
The ICC can only deal with crimes committed after 2002. The mandate set out in the Rome Statute specifies that the court only prosecutes “war crimes, crimes against humanity, and genocide”. These crimes must have been committed in a country which has ratified the Rome Statute, or committed by a national of that country.
Bensouda notes that even if a country has accepted the jurisdiction of the ICC, the court doesn’t have to open investigations there if “credible national investigations or prosecutions” are already taking place. Bensouda suggests this is not the case in some African contexts, despite the scale of the war crimes at stake.
“It could be argued that the situations under investigation or prosecution in Africa are distinguished by the gravity of the crimes perpetrated there for example, 2.5 million victims in Darfur, 2 million in the DRC, and 1.3 million in Uganda and an inability or unwillingness on the part of the State concerned to properly investigate and prosecute those cases,” Bensouda wrote.
Defenders say that far from serving a neo-colonial agenda, the ICC is in fact a bulwark against neo-colonialism: “Africa’s former colonial powers would want nothing more than to see impunity tear the continent to shreds,” wrote international human rights lawyer Angela Mudukuti in the New Internationalist last December, “and the ICC can assist in preventing this”.
As long as the face of ICC defendants remain exclusively black, however, these arguments will likely face a stony reception. It seems virtually assured that the ICC will have to be seen to aggressively prosecute non-African regimes before many Africans believe that the court is not pursuing an anti-African agenda.
Conclusion
After all the analysis that has been made, we still remain with the question whether the ICC has fulfilled its mandate or not. It cannot be concluded decisively whether it has or not. This issue is open to debate and answers vary depending on perspectives. It depends on how one argues what the mandate of the ICC is and the cases it has handled so far. If you base it solely on the fact that the ICC has failed to act on major crimes that have been committed for example the Rwanda Genocide, then one can easily say that the ICC has failed its mandate. Another major controversy surrounding the ICC is its silence on the Syrian conflict.
As seen from the main document, more than100, 000 people have been killed and millions of others have been displaced. This has brought huge criticisms on the ICC. This is crime against humanity. It can also be classified as a genocide, given the high number of deaths and displacements. This is a failure on the part of ICC to bring the perpetrators to justice and bring the conflict to an end. On the other hand, when you look at how aggressively the ICC is dealing with cases from the African context, it can be deemed to have some levels of success. It is to be noted though that we are not of the opinion that the way ICC has handled African cases is a success. This is just but a statement.
This African issue again is raking in massive attention to the ICC especially from Africa that the ICC is targeting Africans leaders. There are critics also from around the world who have voiced their opinion on this matter. The ICC seems to be biased since the only or rather majority of the cases are from Africa. It is very ironic how the ICC is closely following the cases from Africa while turning a blind eye to the Syrian crisis as well as the Palestinian crisis with Israel. If it is to be truly said that the ICC is not biased, then why is the situation in Syria not being addressed? Why are people in Palestine being killed? Children have been left orphaned by these crises yet the ICC is busy following up on African leaders.
This whole scenario can be attributed to the fact that the ICC is a puppet of the western powers. These powerful western states have a say in what the ICC does. It may not be directly evident, but this is the case. The cases that are not being handled are of interest to these nations whether directly or indirectly. In as much as the ICC is trying to maintain a peaceful co-existence in the world, there are challenges that come along the way and thus hinder its maximum capacity. This then is the reason why the answer to whether it has fulfilled its mandate is neither a yes nor a no but rather a question open to many interpretations given the situation.
References
Article 38 of the Rome Statute. Accessed 18 October 2013.
Article 36 of the Rome Statute. Retrieved 18 October 2013.
Enkivillage. Japanese War Crimes (n.d). Retrieved from https://www.enkivillage.org/japanese-war-crimes.html
History. Japanese war crimes trial begins (n.d). Retrieved from https://www.history.com/this-day-in-history/japanese-war-crimes-trial-beginsInternational Criminal Court, the Registry 21 July 2007.
International Criminal Court. “Office of the Prosecutor”. Archived from the original on 19 January 2008.
Mark Tran. The Guardian (26 January, 2009). Retrieved from https://www.theguardian.com/world/2009/jan/26/international-criminal-court M. Struett. 2008, The Politics of Constructing the International Criminal Court NGOs, Discourse and Agency.
Scharf, Michael P. (August 1998). “Results of the Rome Conference for an International Criminal Court”. American Society of International Law. Retrieved 4 December 2006.
The International Criminal Court: An Introduction, Retrieved 25 November 2012. “New ICC Presidency elected for 2018-2021”. Retrieved 2018-03-16.
United States Holocaust Memorial Museum. Nuremberg Trials (n.d). Retrieved fromhttps://www.ushmm.org/outreach/en/article.php
