Challenges facing the efficacy of International Criminal Law
Why the ICL is a ship in stormy waters
Academic Paper 2018 13 Pages
International Criminal Law exists within a political space. It’s a ship in an ocean filled with storms of supremacy battles, power games, sovereignty conversations, self-interests, and a lot more of political tides. This paper seeks to analyse how safely the ICL ship sails in the fierce waters. It seeks to see how the tides have affected the stability of the ship. Will the ICL vessel safely get to dock or is it faced with a risk of shipwreck? The article concludes that there is indeed a danger of the ship being overthrown by the fierce waters, and gives a recommendation to rescue the ship by adopting a definition of state sovereignty to the effect that all are above the law but bound by the law. This will make the objective of International Criminal Law realizable and deliver it from the fate of ineffectualness.
International Criminal Law (ICL) stems from the concept of individual criminal liability for crimes that are generally recognized against the race of humanity. The idea of international criminal law confirms the theory that human beings are one big community, only separated by geographical boundaries. This principle can be traced back to the 1474 case of Peter Von Hagenbach, governor of Breisach, Southern Germany, who was charged with ‘trampling underfoot the laws of God and man’ for acts including murder, rape, and ‘orders to his non-German mercenaries to kill the men in the houses where they were quartered so that the women and children would be completely at their mercy’.1 The aim, therefore, of ICL, is to bring individuals who have committed atrocities commonly recognised by the international community to justice. It is ideally justice enforced collectively by the whole race of humanity.
The substantive element of international criminal law existed way before the inception of the procedural part of it. While the formal procedural practice of ICL as is today can be traced back to the Nuremberg Trials, the substantive law is embedded in conduct of states, most specifically in principles of prohibition of piracy in the 19th Century, regulations of slavery and slave trade, jus cogens (just war) and International Humanitarian Law2. The modern system of ICL, as we know it, then developed as a mechanism to enforce these principles on an international plane. The building blocks of this system were the Nuremberg trials. The system developed with the establishment of ad hoc tribunals, up until 2002 when the International Criminal Court (ICC) was established as a permanent court of enforcing international criminal justice.
ICL exists within a political space. It’s a ship in an ocean filled with storms of supremacy battles, power games, sovereignty conversations, self-interests, and a lot more of political tides. This paper seeks to analyse how safely the ICL ship sails in the fierce waters. It seeks to see how the tides have affected the stability of the ship. Will the ICL vessel safely get to dock or will it be shipwrecked?
1.1 International Criminal Jurisdiction>
Central to International Criminal Law is the principle of international criminal jurisdiction. Not many scholars have given a forthright definition of this type of jurisdiction, but it can be understood as the collective jurisdiction of the international community to investigate and prosecute certain crimes that are recognized as international crimes. It is the jurisdiction by which ICL is enforced. This jurisdiction is exercised through the international ad hoc tribunals, the hybrid courts and the ICC.
1.2 State sovereignty: The door to ICL
We cannot talk about international criminal jurisdiction without discussing the principle of state sovereignty. The sovereignty of states has the implication that a state has sovereign jurisdiction over its territory, which may to a certain extent include its nationals. In the ICL conversation, state sovereignty is the door through which ICL must pass for it to be of effect. In this article we shall see how state sovereignty can be an open door, or a shut door to ICL.
ICL is enforced though treaties. Going by the positivist theory, treaties are an expression of sovereign will.3 Therefore, if a state does not exercise its sovereign will by consenting to be bound by a treaty, the door of sovereignty remains shut to ICL. For instance, the Rome Statute will only bind a state if that state is party to the Rome Statute, or otherwise another treaty, such as the UN Charter, through which the ICC can acquire jurisdiction, if the state is a non- party to the Rome Statute. A study of the jurisdiction of the International Criminal Court (ICC) will give us a better view of how state sovereignty can lead to jurisdictional barriers that undermine the enforcement of ICL.
1.3 Jurisdiction of the ICC
The jurisdiction of the ICC can be viewed four-fold:
- Active personality
The temporal jurisdiction of the ICC implies that the ICC can exercise jurisdiction only for occurrences that happen after 1 July 2002, when the Rome Statute came into force, and for states, after the date on which the Rome Statute came into force in that particular state, unless the state allows the court’s jurisdiction to apply retroactively up to 1 July 2002.4
The territorial aspect of the ICC’s jurisdiction means that the ICC will exercise jurisdiction in the state of the territory on which the alleged crime has occurred, where the state is party to the Rome Statute.5
The active personality jurisdiction is to the effect that the ICC’s jurisdiction will be warranted where the perpetrator of the crime is a national of a member state.6
The complementary nature of the ICC’s jurisdiction on the other hand expresses that the ICC will only come in to exert its jurisdiction where the state is unwilling or unable to genuinely investigate and prosecute international crimes.7
Why do we need to understand the jurisdiction of the ICC? The ICC is the major system through which ICL is enforced, and as you shall come to see, most of the hurdles to the enforcement of ICL are planted on the ground of lack of ICC’s jurisdiction. If you can manage to keep away the jurisdiction of the ICC from you then you are very likely to succeed in evading the sword of ICL. This is the game that the United States of America has been playing all along, as we shall see more in depth in this article.
2. THE LEGITIMACY OF THE ICL ENFORCEMENT SYSTEM
The question of the legitimacy of enforcement ICL is one that has demanded attention throughout the course of history. The question that we ask ourselves here is, ‘Who has the moral right to enforce international criminal law?’ In this section we shall intently examine the hypocrisy of the so-called custodians of world peace and security; how the UN security Council permanent members are in real sense partly a clique of world bullies, the gang leader being the US, and how it has become a system of international autocracy. In the same vein, we shall look at the African narrative in light of the role that the Western countries have played in the conflicts that have seen many of the African States in the ICC hook.
2.1 The Hypocrisy of the UN Security Council.
The permanent members of the UN Security Council (UNSC) are the allied forces of World War II. Being the major players in bringing to an end the war and subsequently the negotiations of the UN Charter, these five countries (US, UK, USSR, France and China) were granted the privilege of permanent membership to the Security Council, which comes with the world despotic tool of power called the veto power. It is through this tool that the allied forces have continued to rule the world.
The objective of the Rome Statute is in the spirit of the UN Security Council primary responsibility of maintenance of international peace and security. You would then expect that the states in whose hands the custody of international peace and security lies would be the number one champions of the Rome Statute. However, of the three permanent members of the UNSC, only two are party to the Rome Statute, that is, UK and France, and of the total 15 members, only 8 are party to the statute.8
These statistics warrant a raising of eyebrows, if we are considering some of the decisions of the UNSC that relate to ICL. Art. 13(b) of the Rome Statute states that “The court may exercise its jurisdiction with respect to a crime referred to in Article 5… if: A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations.” This gives the UNSC the power to refer states to the ICC, including non-party states. The case that I make here is, is it not ironical that the very states that have seemingly showed mistrust in the ICC, by not signing up to its membership, do entrust the same court with cases of international crimes, in the suit of custodians of international peace and security. Doesn’t the UNSC, by virtue of its membership, become a wolf in sheep clothing? That is not the end of the UNSC hypocrisy, there’s a lot more to chew on this.
So far, the UNSC has only referred two cases to the ICC; Darfur in 2011 and Libya in 2005. These two referrals came to be in the face of great atrocities that were happening, and continue to happen in the world over, outside the jurisdiction of the ICC. For instance, the Burma situation had been on the UNSC table for four years before the Libyan referral, yet, the UNSC has till today never unanimously concluded on the referral9.
The question that arises is, what criteria is applied to determine whom to refer and whom not to refer? What we are witnessing at the UNSC as far as the ICC is concerned is a game of politics. The lack of an objective criteria for referral gives way for politicization of decisions made by the Council. It is a matter of where your bread is buttered. Woe unto you state, if you fall on the unfavourable side of one of the power masters of the UNSC, for their whip shall throw you into the hands of the ICC prosecutor. And lucky are you if you have found a soft place in the heart of one of the veto masters, for therein shall your deliverance from Mr. ICC come forth.
Syria can give a good testimony on this. On 22 May 2014 a proposal to refer the Syrian war crimes to the ICC failed, as it was vetoed by Russia and China.10 Of course, it was not the first time that Russia had vetoed resolutions against Syria at the UNSC, this has happened 12 times.11 Looking keenly into the relationship between Russia and Syria, Russia seems to have some political interests in Syria. The exercise of Russia’s veto power in the UNSC resolution therefore, was not without political manipulations. This is only a single case, out of many, that illustrate how the political game in the UNSC is a threat to the effectual enforcement of International Criminal Law. The Security Council is not genuine in its referrals. It will allow what suits the interests of its members, therefore, becoming a stumbling block to the enforcement of ICL.
1 Bartram Brown, ‘International Criminal Law: Nature, Origin and A Few Key Issues’ in Research Handbook on International Criminal Law (2011, Edward Elgar)
2 Beth Van Schaack and Ron Slye, ‘ A Concise History of International Criminal Law’ (2007) <http://digitalcommons.law.scu.edu/facpubs/626> accessed 21/11/2018
3 Douglas Johnston, ‘THEORY, CONSENT, AND THE LAW OF TREATIES: A CROSS-DISCIPLINARY PERSPECTIVE’ AUYrBkIntLaw6 < http://www5.austlii.edu.au/au/journals/AUYrBkIntLaw/1989/6.pdf> accessed 25/11/2018
4 Rome Statute of the International Criminal Court (adopted on 17 July 1998, came into force in 1 July 2002)A/CONF.183/9 Article 11
5 ibid Article 12 (2) (a)
6 Ibid Article 12(2)(b)
7 Rome Statute of the International Criminal Court (adopted on 17 July 1998, came into force in 1 July 2002)A/CONF.183/9
8 ‘In Hindsight: The Security Council and the International Criminal Court August 2018 Monthly Forecast : Security Council Report’ <https://www.securitycouncilreport.org/monthly-forecast/2018-08/in_hindsight_the_security_council_and_the_international_criminal_court.php?nomobile=1> accessed 29 November 2018.
9 ‘The Politicisation of the International Criminal Court by United Nations Security Council Referrals’ (ACCORD) <https://www.accord.org.za/conflict-trends/politicisation-international-criminal-court-united-nations-security-council-referrals/> accessed 3 December 2018.
10 ‘Russia, China Block Security Council Action on Use of Chemical Weapons in Syria’ (UN News, 28 February 2017) <https://news.un.org/en/story/2017/02/552362-russia-china-block-security-council-action-use-chemical-weapons-syria> accessed 3 December 2018.
11 Reality Check team, ‘Reality Check: Does Russia Always Use a Veto on Syria?’ (16 April 2018) <https://www.bbc.com/news/world-43781954> accessed 3 December 2018.
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