PROS AND CONS OF THE ICC

The seat of the International Criminal Court (ICC) is in the Hague, Netherlands and is independent of the United Nations. It was created by the Rome Statute of 1998 which came into effect in 2002, thus it only has jurisdiction over crimes committed after July 20002. Unlike the International Court of Justice (ICJ) which resolves disputes between states, the ICC can only try individuals. Its aim is to determine crimes of the most gross and serious atrocity (genocide, war crimes, crimes against humanity and aggression) while placing a strong emphasis on the victims’ rights and protections. The ICC only has jurisdiction to determine these crimes when: the accused is a national of a party state/ if the crime took place in the territory of a party state/ if the UN Security Council refers a situation.

*Arguments against the ICC

1. The ICC has been criticised for primarily targeting people from Africa and to date, most of its cases are from Africa. In 2017, only two (France and the UK) of the five permanent members of the UN Security Council were members of the ICC. This accusation was so rife that in 2016, several African counties indicated their intention to withdraw from the ICC. Three countries (South Africa, The Gambia and Burundi) went so far as formally notifying the United Nations of this intention. The much-feared exodus from the ICC has not materialised.

2. It is feared that the ICC will make national courts redundant by taking away the responsibility from national courts and legislature to decide on matters concerning national interest. The ICC might become an unavoidable participant in the national legal process because its decisions will set precedents on what it considers “effective’ and ineffective domestic criminal trials thereby indirectly forcing states to adopt those precedents or risk having cases called up before the international court. This constitutes an unprecedented change in the sources of national lawmaking, one that diminishes the traditional notion of state authority. However, it can be appreciated that the absolute doctrine that a state is supreme in its own authority and need not consider the affairs of other nations is clearly no longer tenable. Although the ICC somewhat interferes with state sovereignty, it must be able to employ an element of compulsion to redress gross violations of human rights and international law. Further the Rome Statute is one of principle and not of detail. It is a flexible statute based on principles which may be developed by the court as the circumstances require while still providing enough guidance to establish an international framework within which the court can work.

3. The decisions of the ICC are not subject to review making the ICC unaccountable. The court interferes with the Constitutions of member states as it makes itself the highest law across all lands. Many legal safeguards enjoyed under state Constitutions are inapplicable if those citizens are brought before the ICC. For example:

• The ICC can call on the accused to provide evidence against himself (self-incrimination). If the accused refuses the court can interpret that as evidence of guilt.
• One of the rights embodied in the concept of due process is that there is no crime without a clear law (nullum crimen sine lege). Ambiguous and unclear laws are void for vagueness. The ICC does not recognise this principle because many of the non-core crimes being proposed by the Rome Statute are not settled matters of international law.
• Many states recognise the principle/defense that that no person shall be prosecuted twice of the same offence (non bis in idem/ ne bis in idem/ double jeopardy). The ICC has de facto authority to decide what constitutes an effective or ineffective national trial and an accused party may be tried by the national court and again by the ICC.

4. The ICC raises the problem of uneven justice. It is bound by sentencing laws that may not be applicable in some member states. There is a danger that perpetrators of the same crime may be sentences unevenly depending on whether they are tried at the ICC or by their national courts.

5.There is a danger that the ICC could interfere with peace keeping operations by changing the dynamics of military decision making and the focus of command responsibility. Peacekeeping troops may find themselves effectively forced into combat situations to avoid a court-induced perception that they were negligent bystanders. There is the added concern that charging a nation’s political and military leaders with war crimes will undermine efforts to resolve international conflicts.

6.Complying with the ICC principles of cooperation may be costly on member states especially if the ICC orders the state to grant an appropriate form of rehabilitation to the victims and witnesses of war crimes. This could involve hundreds of thousands of people in the future and the costs could prove staggering.

7.The existence of the ICC poses the potential for jurisdictional leviathan (competition over crimes). Although the preamble of the Rome Statute states that the court is intended to exercise jurisdiction only over the most serious crimes of concern to the international community, there is a tendency on the part of human rights advocates to try and transfer human rights violations and violations of other international prohibitions to the domain of the ICC. This might interfere with various law enforcement agencies especially if the ICC’s investigators unknowingly conduct competing investigations.

8.It has been argued that there is no need for a permanent international institution of this nature as the permanent ICC does not have the same flexibility which the ad hoc courts have. Justice can be effectively administered by special courts e.g. in Nuremberg and Tokyo and the ad hoc tribunals for Yugoslavia and Rwanda.

9. The democratic mandate of the ICC has been questioned on the basis that the Rome Statute has so far only been ratified by small counties. It is likely that this Court will only deal with the defeated, as winners are never taken to task for their crimes. The UN is manipulated by non-elected and unaccountable non-governmental organizations and individuals and accordingly may be influenced by their agendas.

*Arguments for the ICC

1. It has also been noted that the vilifying of the ICC may be unwarranted and unjustified because 50% of the court’s investigations originate from referrals to the court by the concerned state parties themselves. The ICC remains an important court of last resort for crimes of the most gross and serious atrocity.

2. The Rome Statute is a major development in international law and the protection of human rights and at present there is no adequate enforcement mechanism for international human rights law.

3.The ICC provides a permanent enforcement mechanism which investigates and uniformly punishes atrocities worldwide. The prosecution service of the ICC is independent in the carrying out of its function and has the power to initiate investigations even if the countries which have ratified the Rome Statute or the Security Council of the United Nations are reluctant to do so.

4.The ICC leaves the primary responsibility for the prosecution of crimes in the hands of national governments and will only interfere where national criminal justice institutions are unable or unwilling to act. The main responsibility of countries which are parties to the Rome Statute is to co-operate with and where appropriate, enforce judgements, including accepting a sentenced prisoner.