International Criminal Courts Successes and Failures - Essay Example

MAJOR ESSAY By Name Course Instructor Institution City/State Date Factors That Explain the International Criminal Court’s Successes and Failures in Holding Perpetrators Accountable for Breaches of International Criminal Law Introduction Because of the Rome Statute, the International Criminal Court (ICC) was established in 2002 as a groundbreaking idea to hold perpetrators accountable for heinous acts. The ICC is considered as a permanent court for prosecuting persons accused of committing crimes against humanity, war crimes, as well as genocide. The Idea of ICC was sourced from numerous factions. After the Second World War, the Allied Powers acted rapidly following the unearthing of crimes that the Axis Powers committed. For that reason, an agreement was created for prosecuting as well as punishing the war criminals of the International Military Tribunal (IMT) Charter and the European Axis. Before the initiation of the prosecutions for international crimes, a vague disquiet was expressed by the international community regarding the massive violations of human rights and atrocities in the Africa. Limited by issues of politics and national sovereignty, there was no serious commitment by the international community in monitoring excesses of despotic and tyrannical leaders ruling African countries. The international community was distracted intensely by issues such as the nuclear proliferation and Cold War; thus, leaving hapless Africans to look for ways of surviving devoid of international help. Many leaders across the world were flagrantly abusing their citizens devoid of fearing reprisals from the international community. Oppressed, disaffected and vulnerable citizens had to handle impunity with all means possible such as coups, leaders’ assassinations, ethnic cleansing, civil war and genocide. The establishment of ICC helped reduce the level of atrocities, especially in ICC member states. The objective of this piece is to determine the factors explaining the International Criminal Court’s (ICC) successes as well as failures in holding perpetrators accountable for breaching the international criminal law. Analysis The ICC doors were officially opened in 2002 with eighteen judges and Luis Moreno-Campo as the first international prosecutor. As of 2012, the ICC was handling seven open cases, mainly from African countries (Kenya, Uganda, Sudan, DR Congo, Libya, the Republic of Côte d’Ivoire as well as the Central African Republic. Although ICC is considered to be rather a young institution, the court has managed to handle the law and doctrine it achieves with the aim of evolving its uses as well as expanding its powers by means of reduced opposition from member states and increased efficiency. Donovan (2012) posits that ICC can realise its potential fully if it manage to demonstrate to the world that it can successfully apply the international law with clear goals and standards, and also successful prosecutions, indictments, as well as convictions of monstrous war criminals globally. ICC initial successes have come quickly as demonstrated by the court’s ability to lay the foundation for an extremely successful and efficient judicial entity. The successful passing of the Rome Statute in spite of all the oppositions from different sides concerning the document semantics was a major success in itself. Besides that, the treaty ratification swiftness, merely four years following the monumental signing, exhibited that the growing need for the establishment of an international criminal court was existent. Since the ICC inception, more than 57 additional countries have become member states; thus, support towards ICC is beyond doubt growing, particularly amongst the world’s smaller nations viewing ICC as an important system for supporting their local judicial institution. As mentioned by Khan and Marwat (2013), the objective of launching ICC was not just to punish war criminals but also to serve as a deterrent for stopping war crimes. These factors will help in assessing the success of the court. In Khan and Marwat (2013) study, they point out that ICC has hitherto managed six arrests and eight investigations, and only one trial has been completed with a conviction. Given that the ICC offers a platform for the member states to prosecute criminals from their countries; thus, this is one of its successes. However, ICC has experienced some share of failures; for instance, despite having adequate groundwork that was set forth by the Rome Statute, the court has failed in the eyes of many countries. Although the court became fully functional in 2003, the first case (against Thomas Lubanga Dyilo, a Congolese warlord) was opened in 2009. The court was dormant for all those years because of numerous reasons. The prosecutor, Ocampo was criticised widely by the member states for continually failing to bring warlords to justice. Failures by the prosecutor have been linked directly to ICC the failures while trying to become the practical force in the international criminal law stage. Many believe that the management style and attitude of the prosecutor were not favourable to the teamwork needed at ICC in increasing the fluidity through which the court is run (Donovan, 2012). The ICC failures are evidenced by the funds wasted in many cases, only for one trial to be completed. In addition, ICC relies on the member states’ cooperation, especially in turning over suspects and helping in the process of gathering information in order to expedite and essentially complete efficient and fair trials. Regrettably, this is not the case for ICC. The prosecutor has in many instances gathered adequate evidence to the extent that the court issues indictment, but the trial does not happen eventually since the indicted individuals are hardly turned over to the court for trial. For that reason, the suspects remain free as international criminals, as evidenced by Sudan’s president, Omar Al-Bashir. Because of poor cooperation between member states, the indicted military leaders as well as heads of states continue purging their citizens without fear of being extradited. As mentioned by Khan and Marwat (2013), the establishment of ICC offered a real glimmer of optimism for many states facing domestic conflicts, but instead, it has failed the states. The fact that ICC remained inactive until 2009 is one of the reasons why the states are disappointed by the court. The prosecutor has continually been criticised for his continuous failure has been exacerbated by the states reluctance to cooperate with the court. In addition, the court has failed to level charges against the perpetrators because of lack of cooperation between states. For instance, Omar al-Bashir was charged with committing war crimes in Darfur. Bashir has successfully avoided prosecution and evaded arrest because of the support network behind him. He has been moving freely from one country to another, especially those that are signatories of ICC. These countries have failed to arrest Bashir, and ICC lack power to pressurise these states to take Omar into custody. As a result, the court’s standing has been tarnished. Islam (2016) argues that for ICC to be successful, it needs support from the United States. Other countries like China must consent to the Rome Statute and capitalise on its rights as one of the state party to end impunity as well as to protect the interests of the country. The ICC failure can be evidenced by the recent Kenyan case, whereby the judges at ruled that the evidence brought forth by the prosecutor was insufficient to result in the conviction of Uhuru Kenyatta, Kenya’s president, William Ruto, Deputy President and Joseph Arap Sang, a former radio journalist. For this reason, the court terminated their case which was associated with crimes against humanity supposedly committed between late 2007 and early 2008 in Kenya. This was the third case associated with Kenya’s post-election violence that had failed at ICC and the failure was attributed to systematic witnesses tampering. Both Sang and Ruto were accused of forcible transfer of population, murder as well as persecution. On the other hand, Uhuru was accused of murder, deportation, rape, persecution, and other inhumane acts. The post-election violence had led to deaths of 1133 people and displacement of 663,921 persons (International Federation for Human Rights, 2016). As mentioned by Open Society Justice Initiative (2016), the Kenyan cases collapsed at ICC were attributed to lack of sufficient evidence because of witness interference. ICC has continually admitted that almost all ICC cases in charges’ confirmation, as well as trial phases, have been influenced by the justice obstruction incidents, especially in tampering of the witness. Witness interference has led to the collapse of many cases, but in a unique turn of events involving a Tuareg Islamist militia, Ahmad al-Faqi al-Mahdi who was charged for destroying cultural property in Mali, pleaded guilty for all cases levelled against him. Still, witness interference is still prevalent as evidenced in Ruto and Sang case, whereby the ICC court issued arrest warrants based on confirmed allegations. In this case, witness interference happened through murder, bribery, and publication of the protected witnesses’ identities in the social media and press (Open Society Justice Initiative, 2016). According to Tompson-Flores (2010), the fear that prosecutions could result in more harm than good as well as destabilisation of the state has forced any member states of ICC, such as Sierra Leone, Chile, Argentina, South Africa, and El Salvador to grant amnesties and form Truth Commissions with the aim of ensuring that stability and peace prevail. Therefore, a factor that leads to ICC failure is the pursuit of peace and justice, whereby the states prefer solving their problems rather than extraditing the indicted criminals to ICC. This can also be demonstrated by Darfur, Sudan and Northern Uganda, whereby the Ugandan government and the Lord’s Resistance Movement (LRA) have initiated peace talks hosted by Southern Sudan government in Juba. Still, the peace talks became bumpy because Joseph Kony has insisted that he would only sign the peace agreement after the warrant of arrest by ICC against him is lifted. Another factor attributed to ICC failure to prosecute perpetrators is the lack of adequate resources considering that the amount spent by the court spends to prosecute one international crime can surpass the annual African Court budget in entirety. As mentioned by Abass (2013), ICC spent a staggering US$50 million to prosecute Charles Taylor, a Liberian warlord while the budget for the Sierra Leonean justice sector is roughly US$13 million. Because of the high cost related to prosecution process, it becomes difficult for ICC prosecutors to excruciate evidentiary processes related to the prosecutions of international criminals. While ICC continues facing resource-related challenges, the international crimes continue increasing. In 2011, Arab Spring affected many countries, and it was extremely violent in Libya. Although the protests had started peacefully in Benghazi, it escalated quickly into violent reprisals by Muammar Gaddafi’s government. The Gaddafi regime initiated a crackdown which was met with violence leading to Libya’s Civil War. The war carried on for almost eight months and the rebels eventually became successful thanks to the help offered by the NATO air forces; as a result, Gaddafi regime came to an abrupt end after four decades of rule. The ICC became involved in the case after the Libyan case was referred to the court by the United Nations Security Council. This was based on UNSC Resolution passed in 1970, which coerced Libya to fully cooperate with the court in spite of the fact that the country was not a party to the Rome Statute. In mid-2011, the ICC’s Office of the Prosecutor issued warrants of arrests for Muammar Gaddafi, Saif al-Islam Gaddafi, as well as Abdullah al-Senussi for human rights violations at the time of Arab Spring. After the rebel won against the government forces, they captured Muammar Gaddafi and killed him; thus, forcing ICC to terminate investigations against him. The other two cases against Abdullah al-Senussi as well as Saif al-Islam Gaddafi have been a topic of much-heated debate considering that a ruling by pre-trial chamber demonstrated that the case of Abdullah al-Senussi was not admissible before the Court. The government of Libya demonstrated that they are able and willing to prosecute Senussi; thus, leading to the termination of the ICC investigation. In the Saif al-Islam Gaddafi case, it was determined by the pre-trial chamber that the government of Libya had failed to satisfy the requirements needed for the case to be ruled as inadmissible. Still, ICC has been succeeded to legally empower the victims of war crimes by working together with the domestic judicial systems. By creating an Independent Prosecutor, ICC marked the revolutionary change in the global politics’ normative structure. However, the impact of that change is narrowed by restrictions put forth on the jurisdiction geographical scope of the prosecutor (Ralph, 2005). Sudan is not a member state of ICC, but war crimes perpetuated by Bashir, the country president forced the UN Security Council to refer the case to ICC. In line with Rome Statute, Article 13(b), Moreno-Ocampo, the then ICC Prosecutor initiated an investigation. Following the investigations, the ICC Prosecutor requested the court to issue warrants of arrests for six people that were directly involved in the Darfur crisis. Out of the six individuals, only five were indicted while Bashir remains free and without fear. Bashir was considered as an indirect perpetrator of war crimes against members of the Masalit, Zaghawa, and Fur communities. Bashir was the first head of state to have an arrest warrant, but the court was frustrated since some of the member states such as Kenya and Chad where Bashir visited failed to arrest as required by Article 89(1) of the Rome Statute. As pointed out by Oko (2007), countries marred with violence, especially in Africa should be offered resources to create a context whereby citizens know how to process their objections using legal channels that have been established and where human rights are respected by the elected officials. Failing to address such problems lead to violence which sometimes results in disastrous consequences as evidenced in Rwanda and Liberia. The ICC serve an important purpose of paying attention to impunity and raising awareness in the masses as well as the leaders that the states are no more a consequence-free zone whereby war crime go scot-free. The world would be better served if the ICC’s momentum and attention result in more determined and attention efforts to handle the fundamental social factors that bring forth violence. Oko (2007) asserts that the relative International Criminal Tribunal for Rwanda (ICTR) ineffectiveness exhibits the futility of efforts to transform the cultural ethos or ethnic group relations’ dynamics by means of criminal prosecutions. Conclusion In conclusion, this piece has determined the factors explaining the International Criminal Court’s (ICC) successes as well as failures in holding perpetrators accountable for breaching the international criminal law. As mentioned in the essay, the geographical scope of jurisdiction, lack of collaboration amongst the member states, and witness interference are some of the factors that have led to ICC failures in prosecuting perpetrators of heinous acts such as war crimes. Besides that, the court has only managed to complete one case up to the conviction. ICC can become successful if given the power to arrest the indicted and adequate resources to prosecute successfully. The positive aspect of ICC is attributed to the fact that the court has legally empowered many victims of war crimes by working together with the domestic judicial systems. All in all, adopting the Rome Statute has revolutionised the international criminal law field through the establishment of ICC, which is the first treaty-based and permanent international tribunal given power to put on trial the world’s most abysmal as well as grave atrocities. References Abass, A., 2013. Prosecuting International Crimes in Africa: Rationale, Prospects and Challenges. The European Journal of International Law, vol. 24, no. 3, pp.933–46. Barnes, G.P., 2011. The International Criminal Court’s Ineffective Enforcement Mechanisms: The Indictment of President Omar Al Bashir. Fordham International Law Journal, vol. 34, no. 6, pp.1584-619. Donovan, D., 2012. International Criminal Court: Successes and Failures. [Online] Available at: https://intpolicydigest.org/2012/03/23/international-criminal-court-successes-and-failures/ [Accessed 25 April 2017]. International Federation for Human Rights, 2016. Termination of Ruto and Sang case at the ICC: Witness tampering means impunity prevails over justice again. [Online] Available at: https://www.fidh.org/en/region/Africa/kenya/termination-of-ruto-and-sang-case-at-the-icc-witness-tampering-means [Accessed 25 April 2017]. Islam, M.R., 2016. The International Criminal Court: Its Success and Limitations for Pursuing International Justice. Journal of Civil & Legal Sciences, vol. 5, no. 2, pp.1-6. Khan, M.M. & Marwat, A.M.K., 2013. International Criminal Court (ICC): An Analysis of its Successes and Failures and Challenges Faced by the ICC Tribunals for War Crimes. The Dialogue, vol. XI, no. 3, pp.242-56. Oko, O., 2007. The Challenges of International Criminal Prosecutions in Africa. Fordham International Law Journal, vol. 31, no. 2, pp.343-414. Open Society Justice Initiative, O., 2016. Witness Interference in Cases before the International Criminal Court. Briefing Paper. New York: Open Society Justice Initiative. Ralph, J., 2005. International society, the International Criminal Court and American foreign policy. Review of International Studi, vol. 31, pp.27-44. Rodriguez, C., 2013. Libya and the International Criminal Court: A Case Study for Shared Responsibility. [Online] Available at: http://pitjournal.unc.edu/article/libya-and-international-criminal-court-case-study-shared-responsibility [Accessed 25 April 2015]. Tompson-Flores, T., 2010. Te International Criminal Court: Will It Succeed or Fail - Determinative Factors and Case Study on Tis Question. Loyola University Chicago International Law Review, vol. 8, no. 1, pp.57-82. Read More