The ICC has been scrutinized by States as it takes away there authority, power and influence simultaneously through the persecution criminals from within a state. The Nuremberg Trials in 1946 after World War II are considered the birthplace of international criminal law (ICL). Previously, only states, but not individual persons, had been subjects to international law. The Nuremberg Trials in 1946 after World War II are considered the birthplace of international criminal … The three African governments tha plant to quit the ICC did not point to the proposed African Court’s role in pursuing criminal accountability especially for international crimes. Several Nazi leaders were found guilty, and some were hanged. The prosecution submitted video evidence alleging that Thomas Lubanga Dyilo, leader of the Uganda People’s Congress in the Democratic Republic of Congo, had enlisted soldiers under the age of fifteen to help establish the charge of conscripting child soldiers. It is uncertain if States are willing to use their military or economic force to extricate an oppressive … The ICC has been scrutinized by States as it takes away there authority, power and influence simultaneously through the persecution criminals from within a state. It might be counterproductive to present it as a source of salvation. “Teaching democracy is just as important as teaching maths”, Urban growth can cause water supply problems, My family succeeded in leaving dismal informal housing, Book shows rays of hope in climate crisis. While there are many valid criticisms of ICC action (e.g., epistemic, capacity, and sociological critiques), the tension seems ultimately to be a ‘positive’ one. The ICC has jurisdiction with respect to a particular range of crimes: geno-cide, crimes against humanity, war crimes, and in 2017 it may be able to investigate the crime of aggression (committed by one state in another state).3 The ICC Preamble declares that these are serious crimes which threaten the peace, security and well-being of the world. She is also an advocate of the High Court of Kenya. The ICC has faced a number of criticisms from states and society, including objections about its jurisdiction, accusations of bias, questioning of the fairness of its case-selection and trial procedures, and doubts about its effectiveness. I deeply regret measures targeting Court officials, staff and their families. As with United Nations criticisms as a whole, many of these criticisms refer more to the general authority assigned to the body by member states through its charter than to specific problems with the composition of judges or their rulings. no. The implication was that elected officials must not be taken to court so long as they hold office. True. One of the main criticisms following the conclusion of the trial of Thomas Lubanga in 2012 was that after ten years of the Court’s existence it had spent the best part of … It will not be a substitute for the ICC, however. Most important, it claimed that the indictments could jeopardise ongoing efforts to bring about peace and thus cause further destabilisation. But by 2016, when the ICC finally brought a member of the LRA, Ongwen, to trial, Museveni had turned on the “useless” court, criticising it of “western arrogance”. Such criticism is based on legitimate as well as illegitimate concerns. Even before its existence, the Court has been for criticized for its selectivity, statutory limitations, and potential overreach. Moreover, I am not saying that the existence of such tensions and patterns means that the criticisms are meaningless or invalid. The ICC isn’t the solution to all accountability problems, nor is international criminal justice in itself suited to ‘solve’ or fix deeper societal divides. Criticisms raised by tribunals and whether their frequency suggests that a change of approach by claimants and respondents is needed; The use of experts in assessing damages, including their impact on the gaps between parties and the amounts awarded by tribunals; The ongoing gender gap, in terms of both experts and arbitrators, and what can be done to resolve this gap. These criticisms reflect a fundamental misunderstanding of the role and practices of the ICC. The African Union, for example, has accused the court of anti-African bias. There may be sometimes an attempt to try to do too much at the same time. On the other hand, the AU has repeatedly criticised the ICC since 2009, when it issued the first arrest warrant for Sudan’s President Omar al-Bashir, accusing him of genocidal violence in his country’s Darfur region. The ICC as a Standard Setter. The creation of the ICC was partly an attempt to answer criticisms of imperialism or bias, but McCargo points to the fact that of the 36 people the ICC has indicted in the entirety of its existence, all 36 have been African leaders. In the Court's early days, Congress passed anti-ICC legislation, including the American Servicemembers' Protection Act (ASPA) and the Nethercutt Amendment, which curtailed the extent to which the US could cooperate with the ICC. The ICC has been subject to criticisms since its establishment. During the first election of ICC officials, Mr. Luis Moreno-Ocampo was unanimously elected as the first Prosecutor of this institution. Analysis of the Prosecutorial Strategy and Policies of the Office of the Prosecutor (2003-2011) Recommendations to the Next ICC Prosecutor. Third, there is a certain degree of duplication in terms of procedures. 6. Only two situations (Sudan and Libya) were referred by the UN Security Council (UNSC), and another two (Kenya and Cote d’Ivoire) were referred by the ICC prosecutor. 6. criticisms of the ICC from both political and legal perspectives. … In that sense, ICC practice may be emblematic of the transformation of international law, which develops increasingly bottom-up, rather than top-down. This notion is broad and imprecise, however. In the American Bar Association (ABA) Journal, Kristen Smith argues “The case for the International Criminal Court: Why it deserves our support.”” She highlights the merits of the ICC, and while she does note some flaws, Smith misses the key civil liberties issues that makes ratification unsupportable, at least insofar as the U.S. is concerned. In either scenario, domestic politics tend to hamper the ICC’s work, as well as the broader cause of local democracy and justice. A common criticism of the ICC by Africans is that the court is subject to political manipulation. How to Support the Amendment It is fundamental to receive global support over the next six months preceding the official proposal of the amendment to the Assembly of State Parties in December 2019. Biden won thanks to 23,000 voters in three states, German government officer assesses the limits of ODA, Demands for criminal accountability can be an obstacle to peace. Criminal Court and Africa and focus on demystifying some of the criticisms levied against the Court in the exercise of its mandate particularly in the African situation countries. Kenyatta accuses the tribunal of racism. On 11 June 2020 the Government of the United States announced new measures against the International Criminal Court (ICC). necessarily the purpose of the ICC to equalize criticisms. By becoming an Observer State in the UN in 2012, Palestine acceded to the Rome Statute becoming the 123rd member of the Rome Statute. It forces international criminal justice to re-think its identity, and articulate its space in the context of mass violations, also vis-à-vis human rights law and transitional justice strategies. The ICC has been subject to criticisms since its establishment. An important Nuremberg judgment included the statement that “crimes under international law are committed by men, not abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced”. Oxford University Press is a department of the University of Oxford. This principle of national prosecution applies regardless of the outcome of national proceedings. Their announcements show a disinterest in criminal accountability at the international, regional or domestic level. last contributed to D+C/E+Z in summer of 2020. The African Union, for example, has accused the court of anti-African bias. True. Lack of executive/enforcement power: Apart from the post-trial enforcement issue, the ICC also suffers from pre-trial enforcement problem as it depends completely on member states to arrest and transfer defendants. Africa is not, of course, the only place where atrocities have occurred. Fatou Bensouda from Gambia is the International Criminal Court’s chief prosecutor. The International Court has been criticized with respect to its rulings, its procedures, and its authority. Second, it is becoming clear that whatever international justice institutions do, the ICC is likely to disappoint one constituency or another. Among them are those responsible for the violence under South-African apartheid, the Rwandan genocide and most recently Hissène Habré of Chad. As Iain Macleod and Shehzad Charania rightly point out in their post, the ICC faces serious challenges in relation to credibility, legitimacy, and expectations. The ICC complements existing national judicial systems and it may only exercise its jurisdiction when certain conditions are met – when national courts are unwilling or unable to prosecute, or when the United Nations Security Council or individual states refer investigations to the ICC. Political violence in many ICC cases has complex causes and origins. Detailed assessments of developmental issues in the relevant context. While there are justified concerns over the impact of the global Court in Africa, arguments about neo-colonialism exaggerate the strength of the ICC. Some of the architects of these atrocities have been held to account. Moreover, the criticisms of the ICC come against the background of the global crisis for multilateralism more generally. One of the most vocal critics is Ugandan President Yoweri Museveni, who charged the ICC with “shallowness” for pursuing the Kenya cases. Many cases brought to the court were self-referrals by African countries concerned. necessarily the purpose of the ICC to equalize criticisms. Interestingly, throughout the ICC’s case history – including both opened and rejected investigations – it is seemingly non-members, with an emphasis on the US, China and Russia, who have enjoyed a large say in shaping ICC outcomes (see Mamdani 2008). It is necessary to refine risk assessment, sequencing, timing, and modalities of Court action. States have the duty to prosecute persons who commit crimes within their jurisdiction. This trend may be shifting. In this view, the international criminal justice system is divided into two: the rich and powerful countries on the one hand and the less powerful countries on the other hand. The ICC Rome Statute carries with it safeguards against politically motivated investigations and prosecution. A particular irony of the matter was that both indicted politicians had promised to cooperate with the ICC during the election campaign of 2013, but argued that the ICC was interfering in Kenya’s sovereignty once they were in office. Where they are absent, such as in Syria or North Korea, their absence is deplored. In the American Bar Association (ABA) Journal, Kristen Smith argues “The case for the International Criminal Court: Why it deserves our support.”” She highlights the merits of the ICC, and while she does note some flaws, Smith misses the key civil liberties issues that makes ratification unsupportable, at least insofar as the U.S. is concerned. The ICC is currently involved with preliminary investigation of the situation in Palestine, and this at the behest of Palestinians leaders not just in Fatah and the PA/PLO but also Hamas. The ICC’s Africa cases to date highlight that immense problems emerge both when domestic governments refuse or agree to cooperate with the Court. These three commissions should all be placed within the Department of Commerce in a position similar to that of the Mari-time Board and subject to the same general policy guidance of the Secretary. Burundi, South Africa and Gambia have announced they will quit the ICC. In practice, critiques have arisen in relation to almost each situation: impartiality and peace and justice dilemmas in Uganda, evidentiary and performance problems in relation to the DRC (e.g., provider confidentiality, intermediaries), enforcement dilemmas in Darfur, politicization and sustainability issues in Libya, inaction critiques in relation to Colombia, and evidence and cooperation problems in Kenya. by dividing the regulatory functions of the ICC among three separate commissions dealing respectively with rail, water, and highway trans-portation. This line of reasoning cannot be easily dismissed. Criticisms The International Court has been criticized with respect to its rulings, its procedures, and its authority. Photo by Roman Boed. A balanced assessment of the Court requires a fresh look at fair and unfair critique. Syria, for example, never joined, while most African countries did. Of those committed in Europe, Asia and the Americas, some have been addressed, but many have not. Proponents of this argument claim that the “western” conception of justice is being forced upon Africans. Required fields are marked *. Others think it has too LSE’s Omar McDoom assesses the fairness of the criticisms of the Kony 2012 campaign. Many criticisms of International Criminal Court have validity Opinion: Avoidance of difficult cases creates risk of perceived double standards False. in their post, the ICC faces serious challenges, expeditiousness and fairness of proceedings, policy’ element of crimes against humanity, The Law and Practice of International Territorial Administration: Versailles to Iraq and Beyond. Although there are some preliminary investigations outside Africa, 10 of 11 situations under investigation (situations in the trial phase) are carried out in African countries. There is first a need for a certain sense of modesty. I would like revisit some of these critiques. The Statute is full of ambiguities and dilemmas that cannot be solved in the abstract. Close. It is mandated by the international community - By existing, the ICC is implementing its mandate as laid out in the Rome Statute, bravely fought for by the likeminde group of states. Lack of executive/enforcement power: Apart from the post-trial enforcement issue, the ICC also suffers from pre-trial enforcement problem as it depends completely on member states to arrest and transfer defendants. ICC prosecutor Bensouda has to-date refused to act on the Palestine filing. This applies in particular in relation to pre-trial and trial. ICC prosecutor Bensouda has to-date refused to act on the Palestine filing. But it also has certain risks and drawbacks. The ICC's task is something broader and more enduring.3 I am not making a prescription but simply noting that we should be aware of these patterns. Should it carry out ‘thematic’ investigations and prosecutions, that signal that certain contemporary forms of atrocity violence, such as electoral violence (Kenya), gender-based and sexual crimes, destruction of cultural property (Mali), or certain types of human tracking are outlawed? Criminal Court and Africa and focus on demystifying some of the criticisms levied against the Court in the exercise of its mandate particularly in the African situation countries. Comments and interviews concerning globally relevant developments (published on Fridays). Pro Mujer: Why microfinance institutions should offer healthcare services too, New action plan for better protection of the world’s oceans, In order to rise to global challenges, nations must join forces, Taking stock of progress made and persisting challenges, The African Union plans to extend the jurisdiction of the African Court of Justice and Human rights, The ICC reduces perpetrators’ hope for impunity, but for people to come to terms with atrocious crimes, more must happen, In spite of his merits, Rwandan President Kagame is the wrong man to head the African Union, Quitting the ICC does not protect a country’s violent leadership from prosecution, Oppressive imperial powers claimed to be spreading civilisation whilst promoting racism, Political movements express discontent - and where civil-society space is limited, they become campaigns for democracy, Healthy nutrition is a matter of public awareness and political will, The coronavirus pandemic is affecting societies and economies around the globe, Capital markets' growing interest in investments' environmental, social and governance impacts, Re-assessing the controversial term "development", National traumas can stand in the way of development, Forests are important ecosystems, deliver relevant resources and serve climate protection, Global warming and overuse are making access to water ever more precarious, Humanity urgently needs a transition to renewable energy, The world population is growing more slowly, but ageing fast, Health problems disproportionally affect econmically disadvanted people, Tech start-ups help, but much more is needed to generate millions of decent jobs in developing countries, Sustainable business and sustainable environment, Central Asia, Caucasia, Southeast Europe and Russia. A few better prepared cases might leave a larger imprint. It is true that Kenyatta and Ruto were opponents in 2007/08, but even the fact that their joint ticket won a majority in the elections five years later does little to make people who were victimised by the rioting feel safe. It is mandated by the international community - By existing, the ICC is implementing its mandate as laid out in the Rome Statute, bravely fought for by the likeminde group of states. But without the ICC, would there not be a piece of the puzzle missing (e.g., Colombia)? Our Privacy Policy sets out how Oxford University Press handles your personal information, and your rights to object to your personal information being used for marketing to you or being processed as part of our business activities. Examining the ICTY to evaluate criticisms of anti­Serb bias 4 while there have been far fewer indictments resulting from crimes committed against Serbs.”3 Those who support the court have argued that since Serbs were responsible for a majority of the Numerous African leaders have threatened to do the same and have long called the court biased. It’ll keep you briefed on what we publish. According to the prevailing ICC case law, a case can be found admissible before the ICC every time there is a lack of national proceedings and without the need neither to evaluate the willingness or ability of the State nor to examine the grounds behind the States’ choice not to prosecute. 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. Or should it adopt an approach in which it goes deeper into specific conflict situations? Featured image: Windows: International Criminal Court, The Hague. Darleen Seda is a project officer and researcher at the International Nuremberg Principles Academy. The Court is fallible, like any institution. ICC practice is characterized by overreach and under-reach. Analysis of the Prosecutorial Strategy and Policies of the Office of the Prosecutor (2003-2011) Recommendations to the Next ICC Prosecutor. Not tackling that history meant leaving Kenya in the hands of the very men who were suspected of having caused its fragility. The International Criminal Court (ICC) has come in for strong criticism - most recently from the United States, but also from many African nations. Moreover, I am not saying that the existence of such tensions and patterns means that the criticisms are meaningless or invalid. He has published articles on international criminal law and transitional justice in leading international journals and edited several collections of essays in the field. It seems that the many of the core issues are developed through practices, policies, and procedural decisions that aren’t in the limelight. Second, the docket of the ICC has been full and rich in terms of crisis situations. It is, however, difficult to discern that the ICC has a fundamental anti-African bias. Clearly, the ICC should not be accused of bias when it is acting on behalf of the UNSC, and even less when the countries concerned move it. In environments such as Ukraine, Palestine or Syria, there is a risk that the ICC turns into an instrument of lawfare. While it is clear that the AU is of the view that the Court’s prosecutorial decisions are politically motivated, it is equally clear that their discomfort with the Court is itself politically motivated.13 Part II examines Africa’s contribution to the creation of the ICC. The U.S. voted 'no' on the resolution before the Security Council to refer the Darfur situation to the ICC. Another criticism of the ICC refers to the fact that the ICC is predominately engaged with situations in African countries. This fear of political manipulation appears to be a … The ICC is intended to complement national criminal law, not to supplant national jurisdiction over international crimes. Critical evaluation is essential; arguments must be made. Some of the worst atrocities of the past decades have been committed in Africa, mostly by Africans themselves, and always with African victims. But international criminal justice should be weary of the ‘export of global justice’. In the ICC context, there is sometimes a drive for emancipation, rather than structural openness. We will only use your personal information to register you for OUPblog articles. They undermine our common endeavor to fight impunity and to ensure accountability for mass atrocities. The ICC saw its first case a few years after its establishment in 2002. When the International Criminal Court (ICC) was created in 1998, one of its aims was to end the culture of impunity that political leaders enjoyed in relation to international crimes. The present US administration is notoriously hostile towards this international institution. Moreover, the ICC is not meant to replace national courts, but may step in and investigate and prosecute individuals if the country concerned is unwilling or unable to do so. There are currently two investigations being facilitated in the Central African Republic by the ICC. This is unsatisfactory on the long term, and will need to be looked in the future. In some fields, such as sexual- and gender-based violence, the Rome Statute and its procedure are still way ahead of domestic law, and might set important examples. But they mark only a tiny fraction of Court activity. 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. The destiny of the defendant might largely depend on what Chamber he or she faces. This implies unfair selectivity at best, and smacks of neocolonialism at worst. The present US administration is notoriously hostile towards this international institution. He is the author of The Law and Practice of the International Criminal Court and The Law and Practice of International Territorial Administration: Versailles to Iraq and Beyond. The International Criminal Court (ICC) has come in for strong criticism - most recently from the United States, but also from many African nations. On the BBC, Eboe-Osuji was also asked why, in spite of harsh criticisms, he thought the ICC deserved to be sustained. Or subscribe to articles in the subject area by email or RSS, Your email address will not be published. A balanced debate concerning the future of international criminal justice is needed. However, the concept of justice is not only contentious in Africa but everywhere. For example, Burundi’s President Pierre Nkurunziza is obviously irritated by the ICC having begun to investigate the violence that has been rocking his country since he declared he would cling on to a third term in office early last year. The Court’s strong virtual presence contrasts with the more limited trial record of the Court and some of the unintended or contested effects that ICC intervention produces. Similar considerations apply in relation to the role of victims. One of the most vocal critics is Ugandan President Yoweri Museveni, who charged the ICC with “shallowness” for pursuing the Kenya cases. The Court struggles to meet some of the expectations that it faces. More fundamentally, there is the existential question: How can the ICC leave a lasting impact although it has to be selective by definition? The details are what prove contentious. It forces international criminal justice to re-think its identity, and articulate its space in the context of mass violations, also vis-à-vis human rights law and transitional justice strategies. Today, the relationship between African governments and the emerging regime of international criminal law is at a crossroads. The ICC's task is something broader and more enduring.3 I am not making a prescription but simply noting that we should be aware of these patterns. Criticisms of the court include: Michael Mandel, William Blum and others accused the court of having a pro-NATO bias due to its refusal to prosecute NATO officials and politicians for war crimes. Interestingly, throughout the ICC’s case history – including both opened and rejected investigations – it is seemingly non-members, with an emphasis on the US, China and Russia, who have enjoyed a large say in shaping ICC outcomes (see Mamdani 2008). The ICC Rome Statute carries with it safeguards against politically motivated investigations and prosecution. Summaries of trends, conferences, studies and wiki-like briefs. While there are many valid criticisms of ICC action (e.g., epistemic, capacity, and sociological critiques), the tension seems ultimately to be a ‘positive’ one. It has become doubtful whether the Court should too easily proclaim that its goal is to strengthen domestic jurisdiction or that the absence of cases is a success. There are valid criticisms of ICC action: It relies on the cooperation of member states, including those the court may one day have to prosecute. In 1998, the ICC was established as a permanent institution. In the case of Kenyatta and Ruto, it was argued that Kenya was a fragile state in view of the post-election violence that had erupted in 2007/08 and that things might get even worse in the absence of its top government leaders. Daily life in developing countries (published on Mondays). Please register, and you will get it every month. Thanks and best wishes, Your email address will not be published. The African Union’s threat to withdraw from the ICC has made such criticism an urgent issue. This is a worthy initiative and may contribute to improving development of international criminal justice. African governments are challenging the legitimacy of the International Criminal Court (ICC), accusing it of being biased against their continent. One of the challenges is to mitigate the risk that Hague justice promotes predominantly global justice, rather than regional or local justice. But it is also key to critically examine critiques of the ICC. Historically, much focus has been placed on ‘grand’ decisions in international criminal law. “While our security agencies continue to battle these bandits and terrorists, the ICC and some international human rights organizations, especially Amnesty International, have constituted themselves to another ‘fighting force’ against Nigeria, constantly harassing our security forces and threatening them with investigation and possible prosecution over alleged crimes against humanity … The ICC therefore takes away one of the States main functions; thir sovereignty, and as a result this undermines their authority. Criticisms of The International Criminal Court: Checks and balances - United States Critics argue that there are "insufficient checks and balances on the authority of the ICC prosecutor and judges" and "insufficient protection against politicized prosecutions or other abuses". Of State department Mike Pompeo has once again lashed out at the ICC Rome Statute with... 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Moreno-Ocampo was unanimously elected as the first Prosecutor of this institution development of criminal. Local responses, or creating local inequalities ( e.g., funding ) Policies of the has... For the first election of ICC intervention as political or hypothetical argument plays an role! – and this is a collective understanding that individuals are to be held accountable for their crimes and their! Program Director of the ICC is that only the UN Security Council can initiate ICC proceedings if a is! There may be ‘ positive ’ rather than structural openness its existence, the between. In which it goes deeper into specific conflict situations elected officials must not be published is... Icc saying it has no business trying to prosecute Americans were self-referrals African... To articles in the relevant context war II are considered the birthplace of international criminal Court ICC! Highway trans-portation of State department Mike Pompeo has once again lashed out at the criminal! 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