Sentencing in International Law Requires Reasoned Discrimination - Essay Example

Sentencing in International Law Requires Reasoned Discrimination.’ Critically Evaluate This ment with Reference to Role of International Tribunals Name of student Course Tutor Date Introduction “Sentencing in international law requires logical discrimination.” This statement proclaims that the international law is determined to end impunity among perpetrators of serious crimes, which concern the international community as a whole and lay effective strategies which can prevent such crimes from happening globally.1 The international criminal court works according to the preamble of the Rome Statute, which was declared on 24 September 2012. On this particular date, the United Nations General Assembly with several delegates adopted important policies regarding the international criminal court (ICC).2 Various states recognised the role of ICC in a multilateral system aiming to put to end impunity and set up the rule of law in the declaration, which was adopted in the meeting. As per the declaration, it is right to say that the key role of ICC is the enforcement and inducement of compliance in regard to the specific norms of international law prohibit and prevent mass violence.3 Following the extensive perpetration of unspeakable atrocities which were the consequences of the Second World War, the international community passed an unparalleled call for justice.4 The community sought to end serious crimes via inter alia, which is adopting the convention of preventing and punishing all crime genocides, the four Geneva conventions and the principles of Nuremberg.5 Despite the fact that sentencing in domestic jurisdictions’ importance has grown over time, it still remains part of international criminal law which is undergoing construction and is likely to be unregulated in various aspects. International sentencing law and practice has not yet been defined by proper specific norms and principles under which one should be prosecuted. International judges have continued receiving little guidance on matters concerning prosecution of individuals. Yugoslavia (ICTY) and Rwanda (ICTR) are the best examples of international sentencing which can comprehensively and coherently explain how the system works. Despite the lack of credible enforcement mechanisms, violating international humanitarian laws have continued over time with glowing impunity. The international community has responded promptly by taking a joint action that involves creating an interconnection system of international justice aiming at preventing impunity for the worst atrocities likely to happen to mankind.6 This vision came into reality in 1998 when states approved and adopted the multilateral treaty by the name Rome Statute of the International Criminal Court, which lie under the auspices of the United Nations. The first international criminal court was created in 2002 after the entry into the force of the Rome Statute.7 Principles of Sentencing Relevant to National and International Laws Various principles are ignored in international rulings. For instance first, in the historical contributions of the ICTR and ICTY investigations, were conducted with minimal experience and precedent existed in the investigation and prosecution of international crimes. The ICTY and ICTR being organs of the United Nations required a creation f a balance between criminal investigation operations and observance of UN principles created an obstacle in the specific legal, institutional and operational challenges for the OTP in fulfilling its mandate to investigate the crimes. These challenges of investigations were revealed through the complexity attribute to crimes, their sheer magnitude, physical environmental challenges especially in Rwanda, security concerns of potential witnesses and the fact that early years of arrests and detention of suspects preceded investigations in most cases. All these challenges among many others led to reasoned discrimination in sentencing by the ICC. Second, the trials Process of International Tribunals have experienced challenges of mounting successful prosecution. The prosecutions have come as a result of varied legal, logistical and political views. Despite this fact, the situation has been improved over decades to curb the challenges of jurisprudence of international criminal law. Third, witnesses have been a challenge to come and testify before international courts. For instance in ICTR, locating witnesses from the remotest parts of Rwanda and arrange for their travel to and from Arusha Tanzania while ensuring anonymity and personal; security calls for a lot of coordination. Sometimes this challenge leads to sentencing reasoned discrimination by the international law. Fourth, the numerous languages used across the globe have posed a challenge to international law forcing it to sentence using reasoned discrimination. Most witnesses in ICTR only spoke Kinyarwanda. This challenge slowed down the investigation process because interpreters had to be used during the interviews before recording the statements to either English or French. Some critical messages are also lost during the interpretation and translation process forcing the international tribunal to apply discriminated reasoning in sentencing. Fifth is disclosure. The prosecutor is expected by international law to disclose to the defense the evidence he will use at trial. This happens during investigations up to the time the investigations will end. This process has proved to be challenging because of the work involved hence in some case the international court has been forced to ignore some steps and apply reasoned discrimination. Despite this fact, the prosecutor is expected to be alert for relevant material even after the trial and appeal. Discharging requires well organized and easily accessible evidence database which can effectively claim at the OTP. Sixth, evidence is sometimes excluded at trials for reasons of none or late disclosure. This has affected the prosecution adversely on several instances leading to reasoned discrimination. This happens when trial teams obtain better information about witnesses’ evidence when the attorney meets with the witnesses for the first time during proofing which is usually a day or two to the trial day. Sometime the evidence supports the allegations already pleaded in the indictment but at times related to un-pleaded criminal conduct. However this challenge is addressed by two policies. The first one is every new indictments are to be proofed and select witness prior to submission of the indictment by attorney. This is done before the house peer review a head of confirmation by a judge. This way, any information is disclosed in a timely manner as a supporting material to the indictment. Second, trial teams submit their respective cases for further in-house peer review at least two months before trial commences in respect of all indictments. This is done to ensure readiness and consistency. The seventh principle is delays. Trials will never proceed smoothly without active participation of the defense. Sometime the defense counsels are residents coming from all over the world hence making it difficulty for the process to continue. Sometimes they have their own businesses to attend to hence cannot make it to courts. In such a case, the international court may intervene to apply reasoned discrimination for the sake of progress of the case. The eighth principle is appeals. International Judicial activities have generated more work in terms of appeals without corresponding resource base. Although the international court has been initially forced to apply reasoned discrimination in regard to this aspect, the court has created a separate office of the prosecutor appeals. Other factors which have force the international criminal court to apply reasoned discrimination in sentencing include; sentencing where the chambers pass sentences which are cannot allow reconciliation and deterrence, lack of state cooperation, poor completion strategies and transfers among others. Since 2002, ICC has contributed to the fight against impunity and rule of law establishment by making sure that severe crimes are punished and the international law is respect at all heights.8 The key mandate of ICC is acting as the last resort court with the capacity to prosecute individuals involved in genocide, war crimes, and crimes against humanity when national jurisdictions are not in capacity for any reason or not willing to act. By November 2012, the ICC seized 14 cases from Democratic Republic of Congo (DRC), Uganda and Central African Republic.9 These cases were referred to the ICC by the involved nations. Two other cases from Libya and Sudan were referred to the court by United Nations Security Council ICC prosecutor. Two other cases from Côte dIvoire and Kenya were referred to the court by Prosecutor proprio motu after the authorisation of the court’s Pre-Trial Chamber.10 By 2013, the court’s prosecutor was conducting preliminary examinations into eight other situations. The Rome Statute and the ICC have worked collaboratively to combat impunity in relation to crimes against children and women as well11. The Rome Statue is extensively codified to acts requiring the ICC organs to have specific expertise on violence against children and women. To date, gender crimes in ICC are the vast majority cases. ICC issued its first verdict in March 2012 and sentence in July the same year.12 The first sentence was Lubanga’s case where 6 children under the age of 15 were used as soldier.13 The children were enlisted, conscripted and actively used as participants in DRC hostilities. Charges related to usage of children soldiers have featured in numerous other cases in the ICC. The United Nation’s secretary general for children and armed conflict, who is a special representative of the body, evaluated that the indictments will serve as vital deterrent against children recruitment in armed conflict cases.14 In 2004, Kofi Annan the then secretary general for United Nations stated that ICC impacts by notifying ‘the would’ be perpetrators that impunity is not assured. Public announcements that ICC is following the situation on the ground is a powerful way of warning potential perpetrators and raising tension to caution them that they will be responsible for their actions.15 In addition, the situation can draw national and international attention, which will induce the relevant national and international stakeholders to take appropriate action to prevent the crisis from happening.16 Various studies have indicated that ICC has played a major role in helping to prevent large scale violence in the context of country’s elections and more especially the African countries. Some situations, which require the ICC intervention, may end up being prompted by national authorities.17 The ICC come as the last option, some national courts have effectively handled cases similar to those handled in the ICC. The ICC will only intervene in a national’s judicial matters if the country is not capable of handling the matter or if it is unwilling to investigate and prosecute the matter18. The ICC reduces impunity by punishing the perpetrators and giving victims a chance to attend judicial proceedings and apply for reparations. These are crucial progressive features in the proceedings of the ICC which empower victims and draw closer the retributive and restorative justice.19 The creation of the Trust Fund for Victims is a relative innovation of the Rome Statute system mandated to implement court ordered reparations and provide aid to victims and their families regardless of the judicial decisions. Today, over 80, 000 beneficiaries of the program are assisted by both national and international partners of the program.20 The aim of the program is to respond to essential needs of the victimised individuals by empowering them to regain their places in the society and reconstruct sustainable livelihoods. The trust fund is recognised for its visibility presence on the nexus between development and justice.21 The Rome Statute created both a court and an international legal system comprising of the ICC and national jurisdiction to every state party. The system has obligated every state the responsibility of investigating and prosecuting Rome Statute Crimes. National stakeholders of the Rome Statutes have been repeatedly stressed by the Assembly of States Parties to the Rome Statute to implement the statute and strengthen the national jurisdictions capacity.22 The assembly has also considered possible ways of achieving these goals. For instance, the 2013 discussions on the issue under complementarity, Rome Statute concept was multiplied into various forums among numerous stakeholders like the United Nations, civil society and other interested states.23 The assembly stands on the ground that without the rule of law, impunity will reign forever. Through the punishment of international legal norms violations and promotion of adherence to the norms, the wider Rome Statute system in conjunction with the ICC play a crucial role in advancing the rule of law hence reduction of impunity.24 The norm concerns of Rome Statute like preventing crimes that threaten peace, security and well being of humans is in line with this critical role. The court works hard to avoid acts and omissions which are likely to fall under the jurisdiction. The acts are destructive and heinous that every effort is made by the court to avoid them. The court is also responsible for past accountability which is likely to come up in future.25 For instance, if impunity is unaddressed, it will lay a fertile ground for conflicts to recur and violence to repeat in future. The ICC requires maximum cooperation and support from stakeholder states to perform its mandate effectively.26 For instance, the ICC does not have police force of its own; it requires the states’ cooperation to enforce its orders. It relies entirely on states to execute its arrest warrants.27 The international community has on several occasions declared its anticipation to end gravest crimes. The concrete was to affect this objective is cooperating with the ICC. Despite this fact, several suspects subjected to the ICC arrest warrants have evaded the arrest successfully for a long period. These suspects have defied the international community’s attempts to ascertain the rule of law at international level.28 The political will to bring these people to justice is important. The arrival of the permanent international court to prosecute severe crimes encourages and empowers state jurisdictions to prevent impunity. Around 150 state parties to the Rome Statutes have fully endorsed the new justice paradigm which is centered on the ICC while more that 30 others have signed but not ratified the statute.29 The universality of Rome Statute aims at extending its legal protection to everyone in the world and increase equality of perpetrators before the law. The ICC and Rome Statute System’s long term value is punishing perpetrators and preventing future crimes. The court has already presented evidence that it has contributed significantly to this regard.30 The court has already entered its second decade with a firm commitment of ending impunity and upholding the rule of law through the inspiration of common values of humanity shared by the court and the United Nations. International Legal Theories The international legal theories is a combination of theoretical and methodological approaches explaining and analysing contents, formations and effectiveness of public international laws and institutions to suggest further improvements.31 Some approaches focused on the problem of forming international rules. This explains why some states voluntarily adopt international legal norms, which limit their freedom and action without world legislature. Others center on compliance question.32 This explains why states follow international norms without using coercive power to ensure compliance. Other policies of international law are policy oriented. They explain theoretical frameworks and instruments in detail to criticise the laid rules and suggest improvements on the rules.33 Some are based on domestic legal theory; others have been developed expressly to assess international laws while others are interdisciplinary. Eclectic or Grotian Approach This approach was developed by Hugo Grotius who is Dutch theologian, jurist and humanist. His book Three Books on the Law of War and Peace which was published in 1625 draws from the bible and the just war of St. Augustine’s theory.34 His argument is that every nation and person should be governed by universal principles which are based on divine justice and morality. However, he drew from domestic contract law that the relationship of polities should be governed by people’s law which is jus gentium.35 The law is based on observance and commitments. Grotian’s basic tenents were fundamentally established as the principles of European legal and political system. The principles were enshrined in the peace of westphalia of 1648.36 The principles included territorial sovereignty, legal equality and independence of states among others. Realism This approach contends that in an international anarchic system, states are locked in a perpetual struggle to survive. The survival forced them to increase their relative power so as to preserve their sovereignty and territories.37 International cooperation of the ICC can only succeed if the court responds to the self interests of its states through maximization pf their power and prospects while their states should intervene to pursue cooperation through normal commitments.38 States can only adopt international legal norms to improve their power, formalise the subordination of weaker states or violate their own advantage deliberately. Thus, international law can only address peripheral matters which are not intended to impact on the autonomy or powers of the states.39 Thus, according to realists, international law is a tenuous net of unbreakable obligations. Liberalism According to international relations theory, the states stance of international law should be determined by the nation’s domestic policies and specifically the aggregation of the preferences of core domestic personnel and groups toward the rule of law.40 Hence, democratic states are more likely to accept legal regulations of both domestic and international politics because they have representative governments. The theory lays emphasis on observing and accepting international law. The theory has linked democratic societies to complex net of interstate, transnational and Tran governmental relations (OConnell 69). This is for the sake of interest from civil societies and foreign policy bureaucracies to promote and strengthen transnational cooperation by creating and observing international legal systems.41 Adopting and complying with international legal norms among democratic states should be peaceful and easier as compared to observing international law among non- democratic states. Rational Choice and Game Theory The theory applies economics to identify legal implications of behavior maximization both inside and outside the market. Economics is studying ration choice under specific conditions.42 The theory has employed much of neoclassical traditional economics like price theory and transaction cost economics among others. These tools have been used to evaluate law. Laws are tested of economic efficiency. The theory I also useful in proposing changes in the law.43 The approach encourages people to adopt laws which can maximise wealth. The theory analyses general legal question by providing specific rules which provide rationale for their usage. Existence of perfect competition has been emphasised by the theory to encourage individuals maximise their preferences.44 Other international legal theories include; international legal process, policy oriented perspective, critical legal studies, feminist legal theory and lesbian, Gay, bisexual and transgender/transsexual legal theory among others.45 The Pitfalls of International Law International Criminal Court has been accused of lagging behind in bringing cases into trial. So far, the court has only managed to issue 13 warrants including the controversial warrant of arrest of Omar al-Baashir who is the president of Sudan.46 Furthermore, the court has only managed to make four arrests while it has two trials underway. The tribunal commenced on a high night at its earlier stages but it slows down as it gets older and older. The ICC need to cooperate with its members and supporters to move into a higher gear.47 Most states like Kenya of Africa have failed to cooperate with the ICC claiming that it is discriminative. The ICC has no gumshoes or handcuffs of its own hence if its members cannot assist it in bringing out the prosecuted, it will continue facing the challenge. Most human rights groups and governments more especially have come out to oppose the duties of the ICC claiming it is unjust in issuing sentences.48 Some state courts have even threatened to curtail their cooperation with the ICC. African states have jointly come out to criticise the ICC. The recent accusations have come as result of Kenya’s president and his deputy by the court.49 More African states have followed the path to express their dissatisfaction of the court’s operations. Africans are accusing the court of focusing exclusively on Africans and more especially the black Africans.50 Although there have been worse atrocities in other states especially from the western countries, they have not featured prominently in the agendas of the court. Africans states are accusing the ICC of being biased in selecting countries and cases which are followed up in court.51 Although the supporters of the ICC have come out to argue that it is only in Africa that crimes against humanity prevail and that Africa has weak justice systems, Africans have strongly disputed this claim and given examples elsewhere where such cases have happened and continue to happen but the ICC has not focused on them. Some of the countries given as examples include; Venezuela, Iraq, Syria, Colombia, Egypt and Afghanistan among others.52 The African union has come out severally to demand deferment of cases involving African leaders as in the case of Kenya. The union demanded the deferment of Kenyan leaders or else it is likely to withdraw its membership if the United Nations Security Council will not honor its request. In addition, the union advised Kenyan leaders not to honor the summons of appearing before the ICC as prompted by the court. Such threats and un-corporation from African states have weakened the ICC as a neutral arbitrator of international justice. Africans no longer view the ICC as an international justice system but an extension of colonial domination. They have even changed the name of the court to International Colonial Court.53 These sentiments by the African Union not withstanding the roles played by international justice is a threat to the protection of human rights. In addition, the ICC process has been depicted to be unfair and selective.54 The court needs to reform its policies to insulate any possibilities of political manipulation. Another criticism of the ICC is being subjected to political manipulation. Many states including the United States have expressed their fear of the ICC being manipulated politically.55 Various committees and subcommittees have been chaired to discuss the competence of the ICC and most of them have blamed the court of political manipulations and being discriminative.56 For instance, there was a subcommittee chaired in 1998 on the ICC hearings, US’s former senator Rod Grams concluded that he is convinced that the administration was right in voting against the Rome Treaty. He gave the reason to be that the court is not sufficient to safeguard the interests of the states. The US has since then vigorously opposed each step taken by the court.57 US claim that the treaty establishing the court is bad and dangerous. A part from political manipulations, US have criticised the ICC of prosecuting unfairly and deploying unqualified judges. US demands that the ICC should deploy judges with criminal trials and international law experience as minimum qualifications.58 However, delegates deliberating on Rome Statutes have opposed these demands fro US claiming that they are too high a bar to meet. Due to these disagreements, the US considers the ICC to be inappropriately staffed with qualified judges. Various documents discussing international law especially the 1998 senate subcommittee hearings depict the ICC as a disdained system. The US policymakers have disdained the possibility of Americans being subjected to judges from countries who are either not fully qualified or are biased against Americans.59 Americans are also concerned about the wide ranging powers endowed to the ICC prosecutor whom they claim is not accountable to any institution or government. Israel is another country which has aired its concerns regarding the politicization of the ICC. Israel agreed to be a party to the ICC for a short time but it later unsigned its agreement to the Rome Statute because of the political pressure that was inserted on the ICC. Israel thought the pressure would lead to the reinterpretation of the international law or invention of new crimes.60 Just like US, Israel considered the prosecutor of the court to be mandated excessive powers and discriminated against in appointment of judges.61 China and India among other Asian countries have followed the trend of refusal to concede to the Rome Statute expressing various concerns like excess powers given to the prosecutor, political manipulation, unfair prosecutions, discriminative prosecutions, and discriminatory appointment of judges among others.62 Most states have complained of the excess powers given to the prosecutor claiming that they can lead to subjectivity and arbitrariness in the manner which investigations and prosecutions are carried out in the court. India has claimed that the subordination of the ICC to the U.N. Security Council is as a result of Rome Statute and it is likely to impact on the court’s permanent members and interfere to their political affiliations by the provision of power which will assist them refer cases to the international courts and the power to block justice from prevailing in the ICC proceedings.63 Actually sentiments expressed by African states about international law are not different to other countries like US, China and Asia among others. The ICC judges, prosecutor and supporters are not justified in characterising the demands by African states to be tantamount to condoning impunity while they are not saying the same to other countries in the same position.64 The international community needs to take the position of African Union seriously because it reflects the real concern shared by other states. Influence of funding Countries on International Law The funding countries of the ICC have been accused of influencing the court’s activities. Recent research reveals that European Union funds about 60% of the ICC activities.65 EU just like other international organisations relates closely with EU because of its funding which in turn influences the activities undertaken by the ICC.66 This observation justifies the claim that the ICC dances to the tune of western countries which was stated by Mahamood Mamdani who is a professor from Uganda.67 African states are quick to defend their territories and sovereignty from the ICC because of the trauma they experienced from these same colonial powers during the colonial period. A similar concern is the influence held by the west in the court. The court’s most substantive appointments which are the key positions responsible for criminal investigations and case preparations are irresistibly staffed by members of European Union.68 The ICC is experiencing a tight relationship between its staffing and funding which has consequently affected its activities.69 The close relationship has brought justifiable concerns that the court is a tool of European Union which tend to reinforce post colonialism sentiments to other nations especially the African nations. Another reason suggesting why sentencing in international law requires reasoned discrimination is the claim that African states were lured into the signing of Roman Statutes.70 The states signed the Statutes without enough information on the implications of the statute. This happened basically because of the pressure from donor nations who took advantage of the financial support to the nations to lure them into signing statutes they were not fully informed about.71 European Union has been accused of forcing African states to sign the Rome Treaty so as to become part of EU-Africa trade pact which is the Cotonou Agreement.72 This justifies the reason why African states could not freely opt out of the statutes just like China and India. Some of the non-governmental organisations have contributed negatively to the execution of international justice.73 Although some NGOs have contributed positively in executing international justice, some of them especially those aligned to political groups in various nations have contaminated the neutrality and credibility of the ICC process.74 For instance, in the current Kenyan case pending in the ICC where the president and his deputy were accused of crimes against humanity, some NGOs in Kenya have been accused of paying false witnesses to testify against the two parties in the court. 75Such like sentiments have eroded the credibility of international justice. The Future of International Law Notwithstanding the outcome of African cases and more especially the Kenyan cases, the future of the ICC is at stake. Although international justice is playing its roles, the current structure of the ICC is likely to loose support from most states due to its fragmented credibility.76 The Kenyan cases have drawn the court into domestic ethnic politics which has greatly eroded the integrity and image of the court which should be neutral. The scope of powers of the court more so the powers of the prosecutor are too broad which in turn have led to political manipulation hence unfair jurisdictions of justice are far fetched by the court.77 The international law needs to reform the court to ensure it can be trusted by states all over the globe as a court that executes justice fairly. Otherwise, international law is digging its own grave through the ICC and in the process it is undermining international justice.78 The fact is, the ICC is its own enemy and unless it wakes to reformation, Africans will continue undermining it and viewing it as an International Colonial Court. Apart from the African states, there are other Asian states like India and China who have withdrawn their commitment to the court because of the various accusations laid against the court. The ICC has to bear in mind always that it cannot operate on its own; it needs total cooperation and support from state nations involved to accomplish its activities.79 Some states like Uganda have totally lost confidence with the ICC to an extent that they are using the court as a catalyst to revise its criminal law and rework and guide its soldiers.80 Very soon states are going to come up with powerful state courts which can prosecute international criminals to pin down the ICC. NGOs and the civil society should be aware of their critical role on repainting the image if international law. These bodies should disseminate information which should assist the ICC to build awareness. Ignorance has been an obstacle to the success of the court hence it should be avoided at all costs. Misconceptions which oppose the court decisions should be avoided through the creation of acceptance culture. Dialogue will be another crucial aspect to be considered by the court so that people may get to know it better. Table of Cases The Prosecutor v. Thomas Lubanga Dyilo (2006). ICC-01/04-01/06 The Prosecutor v. William Samoei Ruto and Joshua Arap Sang, (2011). ICC-01/09-01/11 Table of Treaties Rome Statute of the International Criminal Court (Adopted in 1998 by United Nations, Treaty Series , vol. 2187, p.3; depositary notifications, Signatories : 139. Parties: 122 Bibliography Goldsmith JL and Posner, Eric A. The Limits of International Law. (Oxford University Press 2006). Bentham J, An Introduction to the Principles of Morals and Legislation. (T. Payne Publishers 2012). Forsythe D, Human Rights in International Relations (Cambridge University Press 2000) Goldsmith JL and Posner, Eric A. The Limits of International Law. (Oxford University Press 2006). Levit N, “A Different Kind of Sameness: Beyond Formal Equality and Antisubordination Principles in Gay Legal Theory and Constitutional Doctrine.” Ohio State Law Journal. (2000) Vol. 61. OConnell, ME, “Symposium on Method in International Law.” The American Society of International Law American Journal of International Law. (1999) vol. 334, Rajagopal B, International Law From Below; Development, Social Movements and Third World Resistance (Cambridge University Press 2003). Simma B & Paulus AL, “Symposium on method in International Law: The Responsibility of Individuals for Human Rights Abuses in Internal Conflicts: A Positivist View.” American Journal of International Law 302. (1999) 93. Slaughter A, Tulumello AZ, & Wood S, ‘International Law and International Relations Theory: A New Generation of Interdisciplinary Scholarship’. (1998) vol. 92 pp. 367-397. Slomanson W, Fundamental Perspectives on International Law. (Wadsworth Publishers 2011). Steinberg R & Zasloff J, “Power and International Law.” AM. J. Intl L. (2006) 100, 64, pp. 64 – 87. Read More