Saturday, March 7, 2015
The International Criminal Court: Its Establishment, Functions and Effectiveness
By Bakampa Brian Baryaguma
[Dip. Law (First Class) – LDC; LLB (Hons) – Mak; PG Cert. Oil & Gas – Mak]
1. Need for an International Criminal Court
The demand for an international criminal court started in the 19th century, 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.’ Nothing came out of them, yet conflicts intensified, with so much horror that human life was rendered valueless, thus necessitating a dire need for global peace and security.
International political institutions were promptly formed to satisfy this hangover for peace, which was achieved in many parts of the world. 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.’
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. 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,’ 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’), 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.
The ICC was established by Article 1 of the Rome Statute of the International Criminal Court (hereinafter ‘the Rome Statute’), 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.’
The Court is based in The Hague in the Netherlands, but enjoys international legal personality, authorized to exercise its functions and powers on the territory of any state, either by operation of the Rome Statute or special agreement.
For efficiency and proper administration purposes, the ICC is composed of four organs (each having a specific role and mandate): the Presidency, the Chambers, the Office of the Prosecutor, and the Registry.
3. Functions of the ICC
Fundamentally, ‘Justice is a vital component of the rule of law.’ The Court adjudicates over criminal matters, as enshrined in Article 5 of the Rome Statute, namely the crime of genocide, crimes against humanity, war crimes and the crime of aggression, in its strictly judicial capacity. It does not handle civil disputes. It does not play political or humanitarian roles. It has no jurisdiction in peace processes; its contribution to peace-building can only be done by holding judicial proceedings.
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;
(b) The UN Security Council refers a situation to it acting under Chapter VII of the UN Charter; or
(c) The Prosecutor initiates an investigation.
All parties to the trial (Prosecutor, accused and victims) may present evidence relevant to the case.
5. Effectiveness of the ICC
Although ‘one of the most comprehensively developed institutions of global governance,’ 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. 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. 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.
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,’ and serves as the best guarantee for a life in ‘freedom from fear.’
The Court contributes to attaining and consolidating sustainable global peace, order and security. It is considered, ‘... a success of the human security agenda.’
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. Moreover, it is readily accessible. This public impact generated here garners great value to the Court as a justice entity, 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. If the Court’s objectives are realized, then certainly it is effective.
Enormous progress has been made with the ICC’s establishment, although there is more room for improvement. The Court deserves utmost respect and support. 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. The Court is only a mainstream global actor in an international setting where states still play leading roles. Its effectiveness should be enhanced with corresponding improvements in national judicial systems.
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 (available online here http://bbbakampa.blogspot.com/2013/09/letter-to-president-of-international.html as of 5 January 2015), 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.’