International Criminal Court (ICC): The Impediments

International Criminal Court (ICC): The Impediments to ICC’s Efficient Working in Reprimanding Individuals for Crimes of Concern to the International Community

Introduction

At the time of the establishment of International Criminal Court there was a widespread opinion that the world was at the verge of new paradigm-shifting developments in the arena of international affairs and international law. William Schabas called the creation of the Court perhaps the most significant advancement in international law and politics since the creation of United Nations.1 Despite the inevitable logistical hurdles that lay ahead, the generous consensus amongst those with or against the Court’s formation was that Court had the potential of exercising significant influence in reprimanding parties and individuals guilty of crimes against humanity that the autonomous individual states couldn’t sufficiently do. Such excitement was not wholly unjustified because the road to popular consensus established by the Rome Statute was a landmark achievement in the often-dodgy realm of international cooperation amongst nation states.2

After a five-week long diplomatic conference in Rome in 1998, majority countries voted in favor of a treaty that formally commenced the work that was to establish what we now know as the International Criminal Court (ICC).However, even at this juncture, the issues that were to later plague the non-efficient working of the ICC had started to surface. The major world power United States had serious reservations when it came to ICC’s work as an independent autonomous body. The United States’ diplomats present in Rome emphasized the point that the Court should only work under the sanctioning of the United Nations (in which the US had veto-power). According to US diplomats, the formation of ICC would ultimately cause the ‘weakening of the United Nation’s Security Council’ and its mandate of promoting peace and security.4

The end result was that United States, the leader in international politics at the time, was a part of a small group of countries that didn’t sign the Treaty in Rome. Other notable on non-signatories were Israel and China.However, the Treaty was signed and the ICC formally started its operations a few years later. Despite there being clear signs that the working of ICC in a world that was based on a system of independent nation states with unique vested interests would be no easy task.

The purpose of this paper is to clearly delineate the theoretical and practical impediments, which despite all the early anticipation have made the autonomous working of ICC in prosecuting and adjudicating in cases and issues that fall under its domain of operation difficult. There are two fundamental distinct yet inextricably linked points that this paper shall highlight. The first is in how the ICC finds itself in a conceptual and practical misfit in a system of ‘international relations’ based and operated upon the concept of autonomous ‘national sovereignty’ for each individual state/ country.

The second point will cover the logistical issues that the ICC faces in gathering and obtaining evidence from the countries, evidence that is a fundamental pre-requisite without which the ICC’s Office of Prosecution cannot make a solid case. Other logistical issues such as time delays, ongoing conflict resolutions and politicization of the Court will also be discussed while covering this section of the debate.

International Criminal Court seen as a Threat to Conventional ‘State Sovereignty’

The fact that ICC is a transnational authority that tries to exercise control over guilty individuals who are citizens of particular nation’s states is itself the biggest impediment in the efficient working of the court. In fact, even at the time of the Rome Statute there was this deep understanding that the only way the ICC could work towards reprimanding ‘crimes against humanity’, was if there was to be international cooperation among states. However, ever since the creation of the Court, it has been observed that an often-acrimonious relationship between the Court and individual nation states has come to dominate the discourse. This, although warned earlier by a number of parties on technical grounds, also has an explanation that is intertwined with the concepts of ‘national sovereignty’ and ‘international cooperation’, and their specific historical evolutions.6

The notion of ‘national sovereignty’ basically stands for the simple delineation that a country that has declared itself to be an independent body has the primary (many at times sole) responsibility for exercising control over its population through specific state institutions7 including the national judicial system. This doesn’t only mean that the country’s judicial system has the sole responsibility of reprimanding individuals who commit crimes on its territory, but also concurrently means that the judicial system of the state is responsible for safeguarding the rights of individuals who call themselves its citizens as well.8

In such an aforementioned scenario, the primary mandate of the ICC that is to reprimand individuals (not nation states themselves) comes into conflict with the basic premise on which the entire premise of ‘modern polity’ is based.9 Danish legal philosopher Alf Ross has the following to say about the issue at hand:

“One must either take seriously that the state is only limited by its own will; but in that case, there will be no real limits, no real international law. Or one will have to completely embrace the restrictions of international law. In that case, however, the state will be bound by things beyond its own free will, in which case it will not be absolutely sovereign.”10

This intrinsic irreconcilability and the nation state’s reaction to the diminishing of its exclusive authority, though being the most serious impediment towards ICC’s efficient working in the international arena, is however not unheard of. The globalized economic order has already to a certain extent diminished the role state plays in determining fundamental market decisions and practices.11 However, much about that has been written and that is not in the scope of this paper.

Specifically speaking, in the area of international justice and particularly when it comes to safeguarding the fundamental human rights of individuals from misuse of executive power, the international civil society has repeatedly reiterated the need to keep check on traditional absolute state sovereignty to avoid horror situations like the Holocaust, Rwanda, Yugoslavia and other similar instances in which individual state institutions were complicit in mass murder and genocide.12 It is primarily this fundamental concern of which the ICC is a product. The driving philosophy of the International Criminal Court is the propagation of individuals as part of a collective international community that can be held responsible for by supranational and transnational judicial bodies such as the ICC itself.13

Given the information above, it is only natural to realize that there are enough vested interests for a country to be reluctant to fully support and facilitate organizations such as the ICC. The ICC is a product of a new revolutionary paradigm in the realm of international politics and law – a realm that is still predominantly characterized by the principles that posit the ‘nation state’ as the only legitimate authority to exercise executive and judicial control over its individual citizens. And the main protagonist in this drive against established and implementation of firm international law through ICC has been none other than the most prominent superpower United States itself.

The fact is that the United States is not a signatory to the ICC and has always harbored an ‘anti-internationalist’ stance which has severely affected the efficient working of the ICC. Because often in instances where gross human rights abuses happen, world powers have significant leverage to influence and trigger decisions and policies that can help alleviate the issue. However, rather than taking a moral leadership role that the United States usually does in other supranational organizations such as the IMF, UN and so forth, the United States has in fact resorted to primitive tactics of conventional ‘hegemony’ based foreign policy approach.14 The Obama administration made advancements at engaging with the Court and its bodies, however still no scope for a US ratification of the ICC has come forward.15

In such stead, it is of great significance that the United States plays a more amiable part in helping the ICC establish its credibility as an institution that is capable of guaranteeing justice in cases where traditional domestic judicial systems fail. However, such a thing looks very unlikely to happen if one was to consider the deep skepticism that US policy-makers, diplomats and administration have when it comes to international law institutions and the ICC.16 17

However, if it does happen, then it would probably eliminate many of the obstacles that ICC currently faces in ensuring justice through a swift and efficient process. As Kevin Jon Heller puts it:

“The U.S. has been the ICC’s most bitter critic, refusing to ratify a Statute it played a critical role in drafting, launching a multi-year blackmail campaign to force States to sign Article 98 agreements, and even authorizing the use of military force against the Hague should an American ever end up in the dock there. Joining the ICC would thus not only demonstrate to the world that the U.S. no longer thinks it is above the (international) law, it would legitimize the Court in the eyes of its member States and*perhaps even more important*indicate to other ICC critics, such as Israel and Russia, that their opposition is unwarranted. Indeed, one could easily argue without too much hyperbole that U.S. membership in the ICC would be the single most momentous event in the brief history of the Court, literally heralding the dawn of a new era for international criminal justice.”18

The Problem of Obtaining Evidence for the International Criminal Court

In this section of the paper we will look at another primary obstacle that the International Criminal Court faces in reprimanding individuals guilty of crimes that fall under its mandate, such as the ‘war crimes’ and so forth. However, before we dwell into a systematic analysis of the manner in which extraction of evidence is difficult for ICC, it is of foremost importance that we look at the basic structure of the ICC itself.

ICC: The Organizational Structure

The International Criminal Court comprises of five sub-offices, however, amongst them are three that are of the most primary significance whilst others look at bureaucratic and administrative work. The three important ones (judicially) are the Presidency, Judicial Divisions and the Office of Prosecutor respectively. The Presidency has the task of the overall holistic administrative management of the Court, as compared to the Office of Prosecutor which works independently of the Presidency. Then come the Judicial Divisions that comprise of judges that adjudicate and work on specific cases that are brought to its table by the Office of Prosecutor.19

As it can be seen by the above description, the Office of the Prosecutor plays the most integral role in looking at referrals, initiating and conducting investigations and bringing them forward to the ICC’s other fundamental adjudicating bodies.20 The Office of the Prosecutor is responsible for making a case against the concerned individuals and also responsible for gather evidence to support the case.

However this, as we will later see, turns out be a rather painstakingly difficult task as the Office doesn’t have an independent police force of its own and the investigative teams sent by the Office require cooperation from the different governmental, state and civil society parties and institutions to gather adequate evidence. This is exacerbated by the fact that the countries that have ratified the ICC are under no strict compulsion to release evidence to the ICC investigators.21

It is this that serves as the biggest impediment to the working of ICC, and we discuss this particular point in detail in the next section.

The Problem of Evidence

As it was discussed earlier in this paper, there is, at times, a strong incentive for the member states to restrict partial or even complete access of the ICC investigators to key witnesses and other sources of evidence such as official and relevant documentation. And the ICC itself has no authority according to the Rome Statute to issue any ‘binding orders’ that compel states to provide access to investigators to potential sources of evidence and surrender suspects to be held accountable by the court. Article 93 of the Rome Statute clearly delineates that the ICC can only request member state to cooperate.22

In case a member country fails to cooperate, the ICC can only refer the matter to the ‘Assembly of State Parties’ or in more severe cases to the UN Security Council. However when such a step is taken, the concerned state also gets away because then the matter also is subject to political considerations governed by inter-state bilateral and multilateral relations. There is also room for the concerned state to claim that it is against its ‘national security interests’ to give access and fully cooperate with the ICC. Hence Article 93 of the Rome Statute makes the non-compliance and prevarication on part of the concerned state an imminent possibility in a world characterized by the principles of ‘real politics’.23

In such a scenario, gathering of evidence and the appearing of the suspect once charged in the court at Hague becomes somewhat of an implausibility as made clear by the numerous problems that the ICC has faced in solving cases and investigating ‘human rights abuses’ and ‘war crimes’. If the Rome Statute has included provisions that made cooperation from state institutions from member countries binding, then maybe the short history of the ICC may have been markedly different.

The Politicization of the ICC

Ever since its formation, the ICC has been subject to attempts from various nations states (particularly strong players in the international arena) to influence the court to serve political motives clad behind the rhetoric of a desire to ensure international criminal justice.24 This comes as no surprise as already pointed out in this paper, the ‘real political’ foundations on which the modern concept of states and international relations is based on the actual foundation of the ‘the judicial systems’ themselves. Despite all the attempts to strictly separate political institutions from judiciary, there are still certain spillover effects. The realist author EH Carr says the following to clearly communicate the point at hand:

“(Law) cannot be understood independently of the political foundation on which it rests and of the political interests which it serves.”25

This holds true for international law even more so than the intra-state domestic judicial law. This is because of the tacit foundations upon which it is based and the absence of institutional tools (executive and authoritative) for bodies such as the ICC itself.

One example where the case in which ICC’s mandate to provide justice comes into meddling with politics is when a crime within ICC’s jurisdiction is committed in a country that is not party to the Rome Statute and in due course has not ratified ICC. In such an instance, ICC works closely with the United Nations Security Council (UNSC) and a UNSC decision is required for the ICC’s jurisdiction to be enforced in such an instance. This becomes a problem because the Court’s ability to exercise its influence becomes contingent on various political matter and matters of ‘international relations’. And it can be rightly argued that the UNSC is not a political body created for mutual cooperation and solely addressing issues that are of great concern to the international community.26

The UNSC itself has a hierarchical structure and contains powerful nation states that are not even party to the ICC Statute.27 However, in such a scenario (which comes around often), even the non-party states that have monopoly over UNSC decisions, can play a big role in either facilitating or preventing the court from carrying out an investigation and reprimanding the concerned individual.28

Furthermore, leaving the actual assuring of international justice aside, nation states have time and again used the ICC as an instrument to forward their politically tinged motives through the use of rhetoric and mentioning the ICC when in reality the foreign policy of the country itself is one of uncertainty and inconsistency, i.e. states incapable of acting in any other way in situations of international conflict use the ICC so they can be “seen to act”.29

The point that needs to be reiterated here is that all the political game-play and increased politicization of the ICC’s working creates a very negative image in the realm of international politics and the society. The fact that now the ICC is seen as a biased and selective actor serving the interests of powerful states, means that most don’t take it seriously when the Court tries to justify its initial and only objective of reprimanding individuals guilty of crimes against humanity, while staying impartial throughout the entire process.30 This in itself serves as one of the major impediments to ICC’s working as a respected and judicially efficient international body.

The Inconsistencies of the Office of Prosecutor and the ICC

The International Criminal Court has also partly undermined its own credibility by not being consistent in looking into matters where suspected ‘crimes against humanity’ are committed. The significant point to note here is that the ‘Office of Prosecutor’ despite all attempts at external influence is an independent body and can also initiate investigations on its own prerogative.31 However, usually the Office of Prosecutor initiates an investigation upon referral from a member state, or from the United Nations Security Councils (UNSC).32 When such a referral is received, it has been observed that the Office of Prosecutor acts ‘selectively’ and that at times prioritizes ‘one crime’ over the ‘other’ based on whether it is feasible to gain evidence or not.

“The prosecutor uses the jurisdictional threshold of gravity: only serious crimes are investigated. But s/he does not follow his/her own threshold consistently. For instance, in the DRC those investigating the crimes of Thomas Lubanga found evidence of torture, pillage, rape and enslavement, but as this evidence was insufficient, a decision was made to focus only on child soldiers.”33

As the above-mentioned case suggests, in being selective the prosecutor is indeed being practical, but in doing so the standing of the ICC has been compromised as a court that will and shall investigate all crimes that fall under its jurisdiction. This again brings us back to the first impediment to the Court’s functioning that we discussed in this paper: the realities of working in an environment where the natural tendency of the states (even member states) is to restrict ICC from reprimanding individuals that are its own citizens. This issue further becomes more glaringly obvious when it is observed that the ICC has very rarely initiated investigations against the incumbents of any nation state.34

Conclusion

The formation of International Criminal Court (ICC) was seen as a development that was to usher the start of a new era of international cooperation and global peace-advancement.35

However, although the mere formation of the Court itself means that a new era has started, the fact that the real basis upon which contemporary polity is based is a product of philosophy that encourages ‘non-cooperation’. The concept of unchallenged ‘national sovereignty’ for a state – which to be fair is only a historically contingent concept – is deeply engraved in the political consciousness. This alone has caused the most obstacles in the achievement of ICC’s objective of reprimanding individuals guilty of crimes against humanity. Furthermore, the fact that three of the most powerful nation states in the world i.e. United States, China and Russia are not members of the ICC Statute makes the Court’s position very weak and timid.

Additionally, if a specific case was to be examined, any possible indictment of the Israeli state incumbent is highly unlikely to be made possible through the ICC. Even though Palestine has ratified the ICC Statute and is a member36,; Israel isn’t. Hence, the Israeli state is under no compulsion to cooperate with the ICC unless and until any UNSC involvement comes around,37 which to be fair has never existed substantially in the first place for Palestine in the UNSC.

Secondly, the ICC has been used many times as a political instrument by member states and powerful states of the United Nations Security Council (UNSC). The politicization of the Court means that it inevitably gets distracted from its basic aim of providing international justice on an impartial basis.38 Added to all the above are the inconsistencies on the part of the Office of Prosecutor. The fact that the ICC doesn’t have its own police force and has the task of both gathering and analyzing evidence makes the Court’s ultimate mission to be a perpetually losing battle.

The Court needs to work on establishing a firm unbiased reputation in the international arena. This would indeed be difficult since powerful states would try their best to exert influence on its workings. The best-case scenario would be if major world powers like the US were to become members of the ICC Statute, however, such a reality seems unlikely in the foreseeable future. Plagued by uncertainty over its impact, the ICC risks becoming insignificant in the world of international law and politics. Yet, small steps, like a few successful convictions, might shift the tide in favour of the Court.

———-

References

1William Schabas, An Intorduction to the International Criminal Court (1st edn, 2000) 20

2David Stoeling, ‘The Rome Treaty on the International Criminal Court’ [1998] 33(2) The International lawyer 613 – 616

3Ibid

4 Marlene Wind, ‘Challenging Sovereignty ?’ [2009] 2(2) Ethics &Gobal Politics 90

5David Stoeling, ‘The Rome Treaty on the International Criminal Court’ [1998] 33(2) The International lawyer 613 – 616

6Stanford encyclopedia of philosophy , ” (Stanfordedu, ) <http://plato.stanford.edu/entries/sovereignty/> accessed August 2015

7The concept of national sovereignty , ” (Elijahnetnet, ) <http://www.elijahnet.net/concept of sovereignty.html> accessed 15 August 2015.

8The theory of ‘social contract’ upon which the legitimacy of the modern nation state to exercise control over its own citizens is based emanates out of a mutually reciprocal arrangement between the state and its subjects. The people give up their certain rights to ‘absolute freedom’ in exchange for the state to provide them security. More detailed information on this can be found through reading the interpretations of ‘social contract’ theories espoused by the likes of Rousseau and Hobbes.

David Gauthier, ‘Symposium Papers, Comments and an Abstract: Hobbes’s Social Contract’ [1988] 22(1) Central Division Meetings 71-82

9CenapCakmak, ‘The International Criminal Court in World Politics ‘ [2006] 23(1) The International Journal on World Peace 3 – 40

10 Alf Ross, Introduction to International law (Copenhagen: Nyt Nordisk Forlag 1984)

11 Vincent Cable, ‘The Diminished Nation-State: A Study in the Loss of Economic Power’ [1995] 124(2) Daedalus 23

12GregoryStanton, ” (Genocidewatchorg, ) http://www.genocidewatch.org/aboutgenocide/8stagesofgenocide.html> accessed 15 August 2015

13Ibid [6] , The final stage in the evolution of human rights is the recognition that private individuals are subjects of international law

14Marlene Wind, ‘Challenging Sovereignty ? ‘ [2009] 2(2) Ethics &Gobal Politics 102

 15Global policy forum, ” (Globalpolicyorg, ) <https://www.globalpolicy.org/us-un-and-international-law-8-24/us- opposition-to-the-icc-8-29.html> accessed 15 August 2015

16Mathew Bulger, ” (American Humanist Association, ) <http://americanhumanist.org/HNN/details/2013-06-the-international-criminal-court-why-is-the-united-s> accessed 15 August 2015

17Ibid [15]

18Kevin Jon Heller, ‘Does Obama support the ICC? [2008] Opinio Juris.

19The Structure of Court, International Criminal Court, Icccpiint, ” (Icccpiint, ) <http://www.icccpi.int/en_menus/icc/structure of the court/pages/structure of the court.aspx> accessed 8 August 2015

20Ibid

21Jacob Cogan, ‘The Problem of Obtaining Evidence for the International Criminal Courts’ [2000] 22(2) Human Rights Quarterly 402-427

22The Member states although have signed the Rome Statute and rarified the court, they still are epistemic-ally operating in a system of International Politics that considers the nation state as the sole executive and judicial authority over its citizens; and many a time there is an attempt to stop international law being applied to its own citizens.

Jacob Cogan, ‘The Problem of Obtaining Evidence for the International Criminal Courts’ [2000] 22(2) Human Rights Quarterly 402-427

23Ibid, only when it is in the interests of the dominant political states can a suspect be brought in front of the court.

24Catherine Gegout , ‘The International Criminal Court: Limits, potential and conditions for the promotion of peace and justice’ [2013] 34(5) Third World Quarterly 800-818

25 EH Carr, ‘The Twenty Years’ Crisis, 1919–1939 [2001], New York: Perennial.

26 Brado fassbender, UN Security Council Reform and the Right of Veto: A Constitutional Perspective (Kluwer law

International 1998)

27 Ibid

28Catherine Gegout , ‘The International Criminal Court: Limits, potential and conditions for the promotion of peace and justice’ [2013] 34(5) Third World Quarterly 800-818

29S Power, ‘Stopping genocide and securing “justice”: learning by doing—international justice, war crimes, and terrorism: the US record’ [2002] Social Research 1093–1107 Correntewirecom, ‘The Politicization of Genocide’ (Correntewirecom, 9 March 2014) <http://www.correntewire.com/the_politicization_of_genocide> accessed 15 August 2015

30 Correntewirecom, ‘The Politicization of Genocide’ (Correntewirecom, 9 March 2014) <http://www.correntewire.com/the_politicization_of_genocide> accessed 15 August 2015

31Catherine Gegout , ‘The International Criminal Court: Limits, potential and conditions for the promotion of peace and justice’ [2013] 34(5) Third World Quarterly 800-818

32Ibid

33Ibid

34Boniface Njiru, ” (Kenyalaworg, ) <http://kenyalaw.org/kl/index.php?id=1907> accessed 15 August 2015

35 Ibid [1]

36I.lazareva, ” (Telegraphcouk, ) <http://www.telegraph.co.uk/news/worldnews/middleeast/palestinianauthority/1150 5741/Palestinian-Authority-to-formally-join-ICC-but-what-will-it-mean-for-Israel-and-PA.html> accessed 15 August 2015

37 ICC urges Israel to cooperate in inquiry into possible breaches in Palestine’ (Telegraphcouk) < http://www.theguardian.com/law/2015/may/13/icc-urges-israel-to-cooperate-in-inquiry-into-possible-breaches-in-palestine.html> accessed on 15 August 2015

38 Ibid [23]

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which he might be associated.

Usama Malik

The writer is a practising lawyer from Lahore who holds a Masters degree in International Development Law from the University of Warwick. He has experience practising with Aitzaz Ahsan and human rights lawyer Asma Jahangir.



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