Criticisms of the International Criminal Court

The visit by the International Criminal Court (ICC) Prosecutor Fatou Bensouda to Kenya has elicited mixed feelings and many are questioning the real motives behind her visit few months prior to the general elections. Two of the remaining four post election violence suspects Uhuru Muigai Kenyatta and William Samoei Ruto have declared their interests to vie for the presidency come next general elections. 

It is without doubt that the majority of Kenyans and especially those who were directly affected by the post election violence of 2007/8 expect to see justice served. But, ICC is shrouded by political intrigues, sentiments and under hand dealings by Western interests that brings to doubt the Court’s prosecutorial process.

The International Criminal Court (ICC) has focused on the continent because most of the atrocities have or are being perpetrated here in Africa. This is my presumption of course and I stand corrected. A few institutions across the globe have questioned ICC’s jurisprudence (the theory or philosophy of its laws) and one such institution is the Parliament of Canada. Below is a section of their publication they made on their website highlighting concerns raised in relation to this Court of last resort.

A. The Politically Motivated Prosecutor
Clearly, what many ICC opponents fear most is a prosecutor who initiates proceedings proprio motu for purely political reasons.(111) John R. Bolton, former American Permanent Representative to the UN, has suggested that the United States should be mainly concerned “for the President, the Cabinet officers who comprise the National Security Council, and other senior civilian and military leaders responsible for our defense and foreign policy. They are the real potential targets of the politically unaccountable prosecutor.”(112) However, safeguards have been built into the Rome Treaty precisely to guard against politically motivated prosecutions. International crime is inherently political. Anyone who assumes the prosecutorial role at the ICC will, of course, come with his or her political perspective on the world and its conflicts, and external political pressure may be exerted in an effort to bring a complaint when it might not be justified or even helpful in a particular political context.(113) However, several factors – notably, a process of vigorous internal indictment review, such as that in place at the ICTY and ICTR; the requirement of confirmation by a judge; and the inevitable acquittal that would result from an unfounded prosecution – likely prevent any abuse of power by a politically driven prosecutor.(114)

In fact, the ICC’s goal is to alleviate the adverse effect of political pressures in the realm of international justice. States have historically been reluctant to exercise universal jurisdiction in respect of grave crimes, due to political pressures from other states that wish to avoid exposure of their complicity. The ICC serves to shift some of this risk from individual states and thereby overcome political obstacles to prosecution.(115)

Some states also opposed the proprio motu power of the prosecutor on the ground that the office would be overwhelmed with frivolous complaints and would have to waste precious resources addressing them.(116) The real challenge, however, might actually lie in choosing from among meritorious complaints the appropriate ones for intervention, rather than weeding out the weaker ones. For example, before the appointment of the current prosecutor, more than 200 complaints had been registered,(117) but the prosecutor has been able to dispose quickly of large quantities of unsubstantiated allegations, as a large percentage do not meet the jurisdictional requirements.

B. Soldiers Confused by the Laws of War

Another concern that finds expression in the debate is that the ICC endangers soldiers because its existence will prevent them from acting when they should, for fear of potential prosecution. Those who express this opinion contend that if the prosecutor initiates proceedings without supervision by any national government, cases could be pursued without understanding the dilemmas that are faced by soldiers in armed conflict. In response to this assertion, Adam Roberts suggests that many senior UK officers take a positive view of the laws of war. This is not an isolated perspective. In the 1991 Gulf War and in the 1999 Kosovo conflict, western forces found that the law actually assists in the professional and effective conduct of military operations.(118)

In addition, Article 8 of the Rome Statute limits the prosecution of soldiers for isolated incidents, regardless of whether they might be considered criminal acts. ICC jurisdiction is meant to apply to, in particular, war crimes that are committed as part of a plan or policy or part of a large-scale commission of such crimes.

C. A Barrier to Peace and Reconciliation

Many commentators have expressed their concern that the ICC may stand as an obstacle to reconciliation and the resolution of conflicts.(119) In the past, many countries, including South Africa, Chile and, to some extent, Great Britain in relation to Northern Ireland, have granted amnesties in order to end conflicts. The fear is that as the ICC becomes involved in ongoing or recent conflicts, wars will be fought longer, peace processes will be disrupted and leaders will be reluctant to relinquish power if facing indictment. Ultimately, the argument is that removing the possibility for amnesty removes incentives for settlement, and may even encourage leaders to remain in power.

Conversely, others suggest that amnesty is not the reason that dictators relinquish power. They argue that instead, dictators leave only when they are weak and vulnerable and desperate to get whatever they can, not whatever they want.(120) Moreover, an indictment does not necessarily have a negative effect. For example, the arrest of Augusto Pinochet in London in 1998 did not destabilize Chile. Opinion polls at the time suggested that the arrest had no influence on voting intentions, that most were certain of his guilt and, although there was a preference that justice be meted out at home, most realized that this was a practical impossibility.(121) Similarly, while it cannot yet be said what effect the indictment of Milosevic had in his downfall, it arguably did not result in his clinging stubbornly to power.

During the ICC preparatory phase and in Rome in 1998, the issue of how to address amnesties was never discussed, in part due to pressure from human rights groups.(122) Significantly, Article 53 of the Statute does allow for the prosecutor to refuse to proceed with an investigation or prosecution if it would not serve the interests of justice. As discussed earlier, this decision is subject to review by the Pre-Trial Chamber.

The amnesty versus prosecution debate is at issue in at least two of the situations currently under investigation by the ICC prosecutor. In Darfur, the arrest warrant issued for the Sudanese President, al-Bashir, is feared by some as a potential threat to the peace process and as endangering humanitarian and peacekeeping operations on the ground.(123) However, others argue that the threat of an arrest warrant has encouraged the government to reach out to its domestic rivals during the conflict, thus enhancing prospects for peace. In Uganda, some observers hold that the ICC arrest warrants were critical in bringing Joseph Kony and others to the negotiating table. However, the LRA leaders are now demanding to be shielded from prosecution in exchange for their further participation in the peace process. As such, international and Ugandan opposition to the role of the ICC is mounting. Thus far, the prosecutor has refused to withdraw the warrants.

D. The ICC Purports to Exercise Jurisdiction Over Non-Party Nationals

The US government has expressed concern that the Rome Treaty purports to exert jurisdiction over US servicemen even if the United States has not ratified. In fact, following the principle of universal jurisdiction accepted under international law, any state has the right to prosecute the crimes defined in the Rome Treaty – genocide, war crimes and crimes against humanity – regardless of jurisdictional links such as nationality and territoriality.(124) The US itself has historically supported this principle: Since its beginnings in the 18th century, the US has recognized the power of its courts to prosecute individuals for the act of piracy; and by participating in the Nuremberg and Tokyo tribunals it has clearly recognized universal jurisdiction with respect to war crimes and crimes against humanity.(125) The American Restatement of Law confirms this:

A state has jurisdiction to define and prescribe punishment for certain offences recognized by the community of nations as of universal concern, such as piracy, slave trade, attacks on or hijacking of aircraft, genocide, war crimes, and perhaps certain acts of terrorism, even where none of the bases of jurisdiction … is present.(126)

Recent US court cases have indicated an increased reliance on the principle of universality.(127) It would seem to follow that the ICC would be competent as a state to prosecute serious international crime.

E. Cost and Delay

As the ICC matures, critical voices are mounting with respect to the expense and delay involved in ICC proceedings.(128) By early 2008, the ICC had cost the international community over $600 million(129) and had yet to be anywhere near its first conviction. The Lubanga case, the case that had advanced the furthest, had essentially been derailed by late 2008. Even proponents of the ICC have begun to ask whether the ICC is losing credibility.

On the other hand, although major prosecutions proceeded slowly, things are not at a standstill. They are even beginning to move faster – between November 2007 and May 2008 almost 700 application process filings and decisions were made at the ICC; and status, rights and modalities for victim participation during investigation, and at the pre-trial and trial stage, were also determined. The problem is that success at the procedural level inevitably slows progress in the actual trials, bogging down the larger issues at play.(130) The main question is whether the ICC can retain its preventative power in the face of such delays. The ICC will remain credible only as long as it can remain a powerful symbol for deterrence.

F. The Focus on Africa

Finally, one recent concern of some significance is the ICC prosecutor’s exclusive focus on sub-Saharan Africa. A number of critics have expressed serious reservations about this practice, and voice fear about bias and the perception that the ICC is yet another instrument of foreign intervention in a long history of Western/Northern interference in African affairs. Even if various geopolitical pressures have simply made it easier for the prosecutor to begin investigations in Africa rather than elsewhere, commentators contend that this sends a negative signal about how the ICC may continue to work, and they maintain that the ICC cannot investigate African crises alone.(131)

Proponents of the ICC raise a number of explanations for the Court’s concentration on Africa. First, each of the situations under investigation has been initiated upon referral by an African government or the UN Security Council. It is difficult to claim that the prosecutor is biased against Africa in his investigations if three of the four investigations were requested by the governments of those countries themselves. The prosecutor has also noted that he has begun his investigations because it is in Africa that the breaches of humanitarian law are most severe. Sexual assault, forced displacement and massacre are issues that are present on a massive scale in the countries under investigation. He says it is only natural that they should come under investigation first. National legal systems are also weak in Africa, so the complementarity principle has led to ICC jurisdiction faster than in some other states. Finally, it is important to note that although the prosecutor has initiated official investigations in Africa only thus far, he is also seriously monitoring the situation in other countries around the world, including Afghanistan, Georgia and Colombia.(132)

END NOTES

111. Brian A. Hoyt, “Rethinking the U.S. Policy on the International Criminal Court,” Joint Force Quarterly, Issue 48, 2008, p. 33.
112. John Bolton, “Is a U.N. International Criminal Court in the U.S. National Interest?”  (533kb, 153 pages) Hearing before the Subcommittee on International Operations of the Senate Committee on Foreign Relations, [ICC Hearing], 105th Congress, 23 July 1998, p. 48.
113. Arsanjani (1999), p. 27.
114. Louise Arbour, “The Need for an Independent and Effective Prosecutor in the Permanent International Criminal Court,” Windsor Yearbook of Access to Justice, Vol. 17, 1999, p. 212.
115. Jonathan I. Charney, “Editorial Comment: Progress in International Criminal Law?” American Journal of International Law, Vol. 93, 1999, p. 456.
116. Arsanjani (1999), p. 27. Also note the testimony of former War Crimes Ambassador Scheffer, who suggests that the proprio motu power “will encourage overwhelming the court with complaints and risk diversion of its resources, as well as embroil the court in controversy, political decision-making, and confusion,” ICC Hearing (1998), p. 14.
117. Mark Freeman and Gibran Van Ert, International Human Rights Law, Irwin Law, Toronto, 2004, p. 479.
118. Roberts (2001).
119. Norman Lamont, “This International Court Isn’t Simply Unjust, It Is a Threat to Peace,” The Times [London], 24 March 2001; Alexis Arieff, Rhoda Margesson and Marjorie Ann Browne, “International Criminal Court Cases in Africa: Status and Policy Issues,”  (1.01GB, 34 pages) CRS Report for Congress.
120. Vesselin Popovski, “International Criminal Court: Necessary Steps Towards Global Justice,” Security Dialogue, Vol. 31, No. 4, 2000, p. 405.
121. Ibid.
122. Arsanjani (1999), p. 38.
123. Arieff, Margesson and Browne (2008).
124. See generally Lawyers Committee for Human Rights, “Exercise of ICC Jurisdiction: The Case for Universal Jurisdiction,” International Criminal Court Briefing Series, Vol. 1, No. 8, 1998. Also, Marler (1999), where it is asserted that the principle of universal jurisdiction allows any state, not just a belligerent, to prosecute any war criminal without regard to the geographic, temporal or national dimensions of the offence.
125. Johan D. van der Vyver, “Personal and Territorial Jurisdiction of the International Criminal Court,” Emory International Law Review, Vol. 14, No. 1, 2000, p. 43.
126. Restatement (Third) of Foreign Relations Law of the United States, Vol. 404, 1986.
127. Kenneth Randall, “Universal Jurisdiction Under International Law,” Texas Law Review, 1988, p. 839. Randall, endnote 304, lists the following examples: Tel-Orenv. Libyan Arab Republic, 726 F.2d 774, 781, 788 (D.C. Cir. 1984), cert. Denied, 470 U.S. 1003 (1985); Filartiga v. Pena-Irala, 630 F.2d 876, 890 (2d Cir. 1980);In re Demjanjuk, 612 F. Supp. 544, 555 (N.D. Ohio), aff’d sub nom. Demjanjuk v. Petrovsky, 776 F.2d 571 (6th Cir. 1985), cert. Denied 475 U.S. 1016 (1986).
128. Arieff, Margesson and Browne (2008); International Bar Association, Balancing Rights: The International Criminal Court at a Procedural Crossroads (348kb, 75 pages), May 2008.
129. Christopher M. Gosnell, “International Criminal Court: A Court Too Far,” International Herald Tribune, 28 March 2008.
130. International Bar Association (2008).
131. Arieff, Margesson and Browne (2008).
132. Gosnell (2008). Also, information received from Philippe Kirsch, President of the International Criminal Court; Cecilia Nilsson Kleffner, Legal Advisor at the Coalition for the International Criminal Court; and Deborah Ruiz, Programme Officer with Parliamentarians for Global Action during meetings in The Hague with Canada’s Standing Senate Committee on Human Rights, 31 March 2008.

 http://www.parl.gc.ca/content/LOP/ResearchPublications/prb0211-e.htm#fn136