Law and order are the fundamental units for establishing a peaceful society. These aspects ensure that there is an agreed code of behavior to which members of the society are supposed to abide. Moreover, it also ensures that criminals (those who disregard the law) are punished appropriately. Prosecution and trial which are components of law exist in all developmental institutions. However, a country’s constitution is considered as supreme law in that specific country. Constitutions differ from country to country based on population composition and cultural system in that country. Despite the existence of a supreme law within a country, there are crimes whose prosecution stretch beyond the capacity of national justice system. These crimes include; crimes against humanity, war crimes and genocide. The International Criminal Court stands out as an international justice system capable of handling the mentioned crimes. The organization is based in Netherlands and has been responsible for prosecution of eight such the mentioned crimes which occurred in Africa. Unfortunately, there is doubt in the credibility of the international justice system. This is because of the current prosecution strategy, lack of an enforcement agency and the composition of the ICC in terms of nationality. In addition, concern has also risen concerning the choice of cases which seems to be Africa specific. Some critics argue that the court has only pinned on African countries. Therefore, this paper discusses issues which ICC faces as an international court and they include establishing international legitimacy, how the system can be compromised as a result of political influence, lack of enforcement agencies or departments, critics based on its 2010 amendment and distance between home countries of those on trial and the ICC court
ICC international legitimacy
The main challenge for ICC is establishing a firm international legitimacy stand within different continents in the world. Currently, international legitimacy of the ICC is questioned especially by states which failed to ratify it and states which are not signees of the Rome statute. As an international criminal court, the organization’s objective is to obtain support from more than fifty percent of nations in the world. However, this is not the case as the court has only managed to garner 110 states votes from the entire world. This number reveals that the organization needs to indulge more activities to ensure it has a sound international reputation.
On the other hand, the court has also been responsible for the punishment of criminals it has found after successful trials. Both the Libyan case and Rwandan genocide, perpetrators are facing their sentences in European jails. This is proof that the system despite having a limited number of affiliated states it has done a comprehensive job on its member states.
The other legitimacy barrier facing ICC is the composition its member state. Most Influential and strong countries in terms of economy and military are members of neither Rome statute nor ICC. The United States, Russia and china are not involved in the ICC officially as states. Therefore, it pegs a question which is, if the system is appropriate why prolific countries are not signed with ICC. Majority of important countries which are not member states are not from Europe. This is because the system is alleged to be part of the European Union. Therefore, it would only represent the interest and reputation of European nations thus biasness. This is revealed by the composition of the top staff of the court. Of the 294 professionals at least 150 of them are from Europe. In terms of P-4 positions 36 of the 55 positions are also from Europe. In addition, 3 of the top professionals are from the United States of America. It is ironical because the United States of America is not a member states yet valuable positions are occupied by professionals from the country. This interferes with the legitimacy of the organization as an international justice system.
However, the system has also received a boost in terms of its international legitimacy front through the ratification of Japan as a member state. Before Japan’s inclusion, Europe was responsible of financing 75 percent of the annual budget of ICC. However, since Japan’s ratification of ICC, Europe contributes 57 percent of ICC’s annual budget. Japan’s ratification of ICC is acts as a positive step for ICC. This is because Japan is a significant nation in the Asian content where the ICC has limited representation or member states. Therefore, based on Japan’s influence on Asia, its ratification of the ICC has opened opportunity for ICC to enhance its representation in the Asian continent. This is a positive approach towards the overall scheme and objectives of ICC as an international justice system.
In essence, the IC has more hurdles to tackle as far as being an international justice system is concerned. This is because apart from Japan, most of the influential states in the world are not members of the ICC. More influential countries being subscribed to the ICC would generate positive outcome for the institution as their influence reflect better financial status for the organization. Financial capacity is the other key factor which an international system has to cater for in order to establish greater control and authority in the world.
The fact that the ICC handles cases which have superseded the potential of national justice systems, it reveals that the court handles delicate matters. In addition, the court handles cases pertaining crimes against humanity and war crimes which are sensitive to the population of the country. This is because the crimes being prosecuted can recur as a result of verdicts produced by ICC. Therefore, the system is supposed to be run in a manner that would inhibit chances of another war or crimes against humanity. For instance in the case of crimes against humanity of Kenya, during opening of the cases two of the six suspects constituted presidential candidates for the next general election. The six suspects were in an international court as a result of crimes against humanity which were as a result of a post-election violence. Surprisingly, at the time of trial, Kenya was yet to conduct her next general election. Therefore, the court had to be cautious during the trials so as to avert another post-election violence. In this case, ICC had to compromise on some of its protocols based on the scenario. Since the court is interested in reducing crimes against humanity worldwide, they would not risk being the cause of another post-election violence. In the Kenyan scenario, the bone of contention was whether suspect who were on trial were fit to run for presidency. Uhuru Kenyatta was a presidential candidate and at the same time a suspect at the ICC. There was a possibility that suppose the ICC and the Kenyan justice systems had ruled Uhuru unfit for presidency, there would be violence in the country.
Despite of the numerous instances and allegations which seem to portray ICC as being subject to political influence, ICC has revealed it operates devoid of political influence as an international justice system. ICC 2012 report indicated that the organizations has been operating devoid of political influence and has been an important tool in the attainment of stability in wrangled nations. ICC report revealed that in spite of the implications laid against the institution, it is self-governed and political end could not be used to alter outcomes of the prosecution.
Most international systems are subject to both critics and appraisals. The ICC has been subject to most critics because of its limited influence on influential countries.
Lack of enforcement agencies or departments
As initially stated, the law is dependent of enforcement bodies in order to cause change. It is the enforcement agencies which apprehends suspects and deliver them to the court for trial. However, there exist unique circumstances where suspects of a crime surrender themselves to the enforcement agencies so that they can be tried. This happens in cases where suspects claim to be innocent and feel they have nothing to side. Unfortunately, the ICC cannot depend on suspects of crimes against humanity, war crimes and genocide to surrender them to The Hague for prosecution. This is because persons capable of such crimes are more likely to have political influence and sufficient capital to establish themselves in countries where the ICC has no authority There is a vast number of countries where the suspects can hide since the ICC has only 110 ratified states. As a result, ICC depends of the enforcement agencies of its member ratified states to apprehend its suspects. The ratified country has to conduct a meeting with the ICC before it embarks on arrest of the suspect. This is complicated, as in most cases the cases which ICC handles the government are involved. Enforcement agencies are part of the government. Therefore, there are slim chances that enforcement agencies would arrest their colleagues and submit them to the ICC. This is because majority of crimes against humanity are committed by the police service of a country. The army and other departments of the national defense officers are also culprits of crimes against humanity. Moreover, it is the government that issues orders to these enforcement agencies, as a result, crimes against humanity by enforcement officers are likely to be orders from the government. In some developing countries’ governments often resort to fear to manage their citizens and opposition. This is done through declaring state of emergency and coups. It is during these times that crimes against humanity are witnessed. This end s up in civil wars an example is the civil war in Uganda where the current president Idi Amin Dada used force to scare off his opposition Milton Obote in 1993.
It is difficult for an international justice system to operate effectively without a comprehensive enforcement department. The ICC should have an elaborate enforcement force which is composed of independent officers who are exclusively under the command of the court. Without an enforcement agency the suspects would be wandering freely after the court has ordered for their arrest. Furthermore, this would undermine the power of the court as its authority will not be honored in the process. An example of a challenge facing the ICC as a result of lack of enforcement agencies is the Sudan’s President Case (Omar Al Bashir). Omar Al Bashir has a warrant for arrest from the ICC of crimes against humanity. He has been summoned to appear before the international court and in all the three times he has deliberately failed to appear before the international court. Since he is the current president of North Sudan, he is the commander in Chief of the Armed forces and he will not issue an order for his arrest. In addition, the head of state has not been restricting his travel in his country, because he has been making national visits on some African states which have ratified the ICC. According to ICC and the Rome Statute, if a suspects of the ICC is in a country with has ratified the ICC or a signatory of the Rome Statute, the host country should arrest the suspect and deliver them to the international court. As per international law, if the Sudan government failed to arrest Omar, then the other countries which have ratified ICC were to arrest Omar upon his arrival on their country. However, this is not the case because in March 2013 Omar Al Bashir was a guest during inauguration of the Kenyan president. In defense the Kenyan government declared that it did not arrest the suspect because it did not want to spoil relations with the African Union (AU). Moreover, they stated that Sudan was their neighbor and if Sudanese are comfortable with their president Kenya should not interfere to avert conflict between their neighbors.
The ICC lacks an enforcement agency due to two main reasons, Authority ad Budget. Authority of the ICC is undermined because the organization has not signed majority of the influential countries in the world. In fact top three countries in the world in terms of economic status are not member states of the ICC. If an organization lacks the influence of powerful countries in the world, its authority is likely to be compromised. The court is a non-profit organization, but it requires funds to complete its mission and objectives. Since its funding can only be substantiated with its member states which are few, it therefore has a small budget. In addition, majority of the member state are developing countries who have limited spending capacity thus little contribution towards the ICC budget.
Distance issue (Home countries and The Hague)
Among the challenges which face the ICC is the distance between the home country and ICC court chambers. The ICC prosecution strategy is based on two primary steps. The steps are complimentary and cooperation. The first step is divided into two, the first is the state committed to the ICC investigates and prosecute any of the three crimes. The second part comes in when the state decides they have failed in prosecuting the culprits and as a result ICC intervenes. The second step which is cooperation is depending on the 110 state parties’ enforcement officers to arrest suspects and take to the ICC. The problem is that once a suspect has been identified and arrested, they have to go to the ICC for their trial. The issue is a challenge because eight of the case which ICC has handles were from Africa. In African context, it is odd for the criminals of massive crimes to pay for their crimes in a foreign land. Based on this, some have accused the ICC as a form of colonialist on the African continent. The question is why the ICC has to prosecute and investigate its suspects from The Hague while they can handle it in the suspects’ country of residence. The other challenge is the cost of travel from the country residence to The Hague. Suppose the suspect is not financially sufficient, it would be a waste of resources if after the trial the suspect is innocent. Since the already handled cases are from Africa the suspect have to travel to Netherlands which is expensive. Pressure of cost of travel is not only on the suspects but also the witnesses. For a trail witnesses and suspects have to be present on the court so that the prosecution and the defense can ask question to the witness. This becomes a challenge when a case from Africa is decided from Hague chambers. It is expensive to cater for travel for all witnesses to Hague. This is because in the context of massive crimes, witnesses have high chances of being more. In addition, some witnesses might decide to drop their testimony when the issue of travel is raised. While some witnesses might drop their testimonies as a result of pressure, others might do so in fear of their security. Witnesses have always being in fear of testifying as when the suspects are let free, some pursue witnesses who issued testimony against them. This has been an issue even in local justice system but it is escalated when the cases are taken to a foreign land for investigation and prosecution.
ICC and Africa
There other major issue facing the ICC is the debate whether ICC goals are specific to the African continent. As previously stated, the eight cases that have been tried in the ICC are only cases from Africa. Therefore, there are questions as why the international court is specific on the African cases. This might be termed as colonialist as despite Africans being the main client of the ICC, they have little representation on the top office positions. Majority of the top officials in the ICC chambers are Europeans. As a result this can be regarded as a scheme of establishing unfair control over African states (Ssenyonjo, 2013).
However, the ICC is not majoring on Africa as the cases which ICC handles occur frequently in Africa. Cases handled by the ICC are specific for developing countries and Africa is the main host of developing countries. In terms of representation, the ICC has improved as the Current Chief prosecutor is from Africa as opposed to the previous chief prosecutor. This reveals that Africans not only provide cases for the ICC but they are involved in the prosecution and trial of their own cases. Fato Bensouda is the next African prosecutor who would take after Louis Moreno Ocampo who was an Italian (European). As an international prosecution body, the ICC should be constituted of the best legal ruling in the world. Lest it would fall victim of inaccurate judgments and its reputation would be tarnished. Since Africa is a developing country there are reduced chances of obtaining a sufficient ruling legal team.
Critics and complexity of its mission in handling a fourth crime
The international criminal court has been on the receiving end of harsh critics from different parts of the world. The first issue is concerns about ICC playing a colonialist on the African continent. The other critic is that the organization is a European tool therefore; it cannot be viewed as an international organization. Most countries outside Europe except African countries have a negative opinion to wars the ICC. They consider it as being a tool of the EU. Therefore, on matters where these other countries differ with the EU, the court would be in favor of the European Union. Since ICC has already been portrayed as an arm of the EU, countries outside joining the IC would mean they are subjects to Europe. Moreover, some of these defiant countries are developed thus they would not be presided by other developed countries in Europe. For instance the United States would feel being subjects of the EU by ratifying ICC. Since they are developed they believe they have the capacity of handling all crimes within their borders and there is no need for outside help.
During the foundation of the ICC, its mandate was to handle three crimes which are; genocide, crimes against humanity and war crimes. These crimes were to be handled by the ICC after the state party has acknowledged it has failed to handle the crime within its local justice system. In 2010, during the assembly of state parties of the ICC, the organization amended its constitution and proposed to handle an additional crime. The fourth crime is individual aggression. Controversy has erupted after the proposition of handling the fourth crime. This is because the ICC is deemed incapable of handling tits first three crimes appropriately; therefore addition of a fourth crime would only make the situation worse. These are recommendations of countries and blocks that are not state party members of neither ICC nor the Rome Statute
Rome statute in relation to the ICC
Since ICC was a created by the Rome Statute it is more likely that there exist a positive relation between the two. The mandate and objectives of the ICC are in the Rome Statute. According to the Rome Statute ICC mandate is to put an end to impunity for massive crimes in the international community. Its purpose is to ensure that the perpetrators of the three crimes of IC are tried and prosecuted appropriately. Since governments are headed by presidents who are immune to crime, there must be a system that prosecutes heads of states in case they become involved in massive crimes. The statute also defines the roles of the ICC in that it elaborates on the check and balances of the court. This includes information on when a prosecutor asks for an arrest warrant and confirmation of charges. The roles of judges and prosecutors are also drafted in the Rome Statute. In addition, the composition and posts available in the court is also described by the Rome statute. Therefore, all decision and proceedings conducted in the ICC are done as per the Rome Statute.
ICC as the last resort
The main reason behind development of the International Criminal Court under the Rome Statute was to provide a last resort in case things get out of hand. The ICC comes in where local justice systems have failed and it prosecutes and jails found criminals in Europe. It is better to have an international justice system which handles cases beyond the capability of local justice systems. This ensures that impunity is not curtailed and suspects are apprehended and punished appropriately. Crimes against humanity and war crimes which were committed in DRC and Northern Uganda were beyond the management of local justice systems. In Northern Uganda, Lord’s Resistance Leader, Joseph Kony was malicious to the Uganda and people. This rebel group has an army so tactful that is able to operate during the day and by the time the national military arrives they were long gone. The rebel group was stronger than the local police, thus whenever they attacked a village they would take their time in causing pain and harm to the villagers. These rebels also hide in the forest; therefore, the national army cannot declare war against them because they cannot see them. This situation could no longer be handled with the local justice system and the local enforcement units. As a result, the ICC has issued a warrant for the arrest of the leader of the rebel group for cries against humanity and war crimes. In the case of DRC a militia leader Thomas Lubanga was accused of recruiting child soldiers. He is in the ICC and the trial is ongoing. Recruiting of child soldiers is a crime against humanity as children are not yet capable of handling war trauma; they are supposed to be in school and not in battle zones. The other scenario where the International Criminal Court has served as a last resort is the Kenyan Post-Election violence. Violence in Kenya erupted after general election where a political party accused the other political party of rigging the election. As a result, the elected ;president as a per the Election president Mwai Kibaki was accused of rigging election by his main rival Raila Odinga. Based on the accusation, the matter was supposed to be settled in court and the current regime quickly swore the president elect. Citizens were enticed by political leaders and violence erupted among the citizens of Kenya based on their ethnic groups. After settling of the war, justice was due to be served and the national justice system could not handle the case as they were implicated and as a result, the case was intervened with the ICC and is still on trial. Effectiveness of ICC prosecution strategy
The ICC has been both success and failing in some of its endeavors. International legitimacy is one of the constraints facing liability of the international organization. In addition, specializing on African case scenarios is the other challenge towards ICC integrity. There are countless crimes against humanity and war crimes which are outside Africa, but the court’s all cases handled have been only from Africa. The two step processes of ICC’s inclusion on a case are another in effective tool. This is because it depends on the enforcement of it party sates to arrest suspects who are not willing to appear before the court. As a result, the court is incapable of arresting suspects on its own since it does not have an enforcement body. The distance issue is also another constraint affecting functionality of the court.
ICC strategy is flawed with the dependence on state party enforcement agencies to apprehend their suspects. For instance the case of Sudan, the ICC had highlighted a disturbing issue which was crimes against humanity committed by the current president of the country Omar Al Bashir. The prosecutor after meeting with the panel of judges an arrest warrant has been sent to the president. The ICC has sent eight arrest warrants to the president which has not been dealt with seriously. The president tours part member states in Africa and has not been arrested. In this case the Au poses as a challenge towards attaining and acting as per ICC instruction. The countries which have been toured by Sudan president include; Kenya, Uganda and Ethiopia. Governments in the mentioned fail to act as per the Rome statute during when the wanted president steps into their country because of the African Union. This reveals that in the quest of justice in Africa the ICC has one main barrier which is availability of ICC dedicated enforcement officers. If the International Criminal Court has its own police, then the police would have grabbed the president on arrival in part member states country of the ICC. Alternatively, if the force is well established, then the prosecution can order arrest of suspects from their resident countries irrespective of the Countries status with the Rome statute treaty.
However, the successful prosecution and sentencing of criminals in crimes which ICC tackles has shown a healing and recreation process in the affected areas. The ICC is also expanding its perimeters through ratification of Japan. As a result the budget of the organization will improve and so will the service delivery.
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