Treating the Court like a tool that can be turned on and off like an electronic device to fix accountability dilemmas is likely to result in artificial quick-wins, or long-term failure. Lack of executive/enforcement power: Apart from the post-trial enforcement issue, the ICC also suffers from pre-trial enforcement problem as it depends completely on member states to arrest and transfer defendants. In some respects, less may be more. The âAfrican biasâ of the ICC is therefore in many cases a symptom of African enthusiasm for the ICC. This trend may be shifting. Preliminary examinations of the Court have turned into one of the most significant instruments of Court practice. I would like revisit some of these critiques. The ICC has been scrutinized by States as it takes away there authority, power and influence simultaneously through the persecution criminals from within a state. ICC prosecutor Bensouda has to-date refused to act on the Palestine filing. Third, what is presented as a tension might not always be a ‘negative’ tension. A few better prepared cases might leave a larger imprint. Sometime last year, three African countries—Burundi, the Gambia and South Africa—signalled their intention to leave the International Criminal Court (ICC). Photo by Roman Boed. The African Union (AU), moreover, has been criticising the ICC for years, and its arguments deserve attention. Or should it adopt an approach in which it goes deeper into specific conflict situations? Can a convention eliminate racial discrimination? Laurent Gbagbo is the first-ever head of state to be handed over to the ICC.Â. Your email address will not be published. The reason for African leaders’ current displeasure is the prosecution of Kenya’s President Uhuru Kenyatta and his deputy William Ruto before the ICC in The Hague. Only in two of the African cases now open - Kenya and Burundi - has the ICC actually exercised its right to start investigations. The International Criminal Court (ICC) has come in for strong criticism - most recently from the United States, but also from many African nations. The use of ICC intervention as political or hypothetical argument plays an important role in institutional politics and peace negotiations. Another criticism of the ICC refers to the fact that the ICC is predominately engaged with situations in African countries. Rather, the ICC’s success is determined primarily by its effect on the world. Things are not fine. Practice in Kenya and the DRC suggest that a few thematic investigations and prosecutions alone may not suffice alone for the ICC to build a strong case and evidence base, or leave a sustainable impact. I deeply regret measures targeting Court officials, staff and their families. Sometimes, different Chambers seem to re-invent the wheel. In some cases, withstanding public pressure to become involved without a might be a legitimate choice, or at least a feasible technique of damage-control, given that other situations under ICC scrutiny won’t simply disappear from the docket. The Universal Declaration of Human Rights at 70 and Global Power . Thus far, 45 individuals have been indicted in the ICC, including Ugandan rebel leader Joseph Kony, former Sudanese president Omar al-Bashir, Kenyan president Uhuru Kenyatta, Libyan leader Muammar Gaddafi, Ivorian president Laurent Gbagbo, and DR Congo vice-president Jean-Pierre Bemba. There have been relatively few ‘signature’ decisions in the ICC context: decisions on the ‘policy’ element of crimes against humanity; the interpretation of modes of liability or reparations; and contested ones, such as on head of state immunity or the power to compel witnesses to testify. Third, there is a certain degree of duplication in terms of procedures. Review of âThe Oxford Handbook on the United Nationsâ , a political instrument and weapon used by the west to enslave other states, The struggle to eliminate racial discrimination, Taking forward the UNâs fight against racism, Fifty years of fighting for a better future, The colonial legacy of the right to self-determination, The Universal Declaration of Human Rights at 70 and Global Power. The ICC has been subject to criticisms since its establishment. While these procedures are taking place, which may take years, the accused will be under some restraint and certainly under grave public shadow. It furthers the University's objective of excellence in research, scholarship, and education by publishing worldwide. Some critics also see the ICC as biased against Africans, while others say the “ICC sadly reinforces Western perspectives and standpoints as universal maxims valid for all people and all nations, and re-enacts racialised metaphors of savages, victims and saviours in the name of truth and justice.” The ICC is also overseeing 9 preliminary examinations âprecursors to potential investigations. But they mark only a tiny fraction of Court activity. Again in Chapter 11, the IPCC highlights work that supports the view that costs of emission reduction are low, while ignoring or misquoting studies that find such costs are high. The ICC was designed as a court of last resort to have jurisdiction over persons accused of some of the most abhorrent international crimes - genocide, crimes against humanity and war crimes. While these proportions are similar, the 50 non-African states that have not joined the court include almost all the worldâs non-African fragile and conflict affected states). The ICTY alone has seen ninety individuals sentenced for genocide, crimes against humanity or other crimes. More fundamentally, there is the existential question: How can the ICC leave a lasting impact although it has to be selective by definition? Others think it has too As Iain Macleod and Shehzad Charania rightly point out in their post, the ICC faces serious challenges in relation to credibility, legitimacy, and expectations. Criminal Court and Africa and focus on demystifying some of the criticisms levied against the Court in the exercise of its mandate particularly in the African situation countries. Fatou Bensouda: I am glad that they are praising the ICC because I think the ICC is doing phenomenal work. The original draft for the Rome Statute did not pay explicit attention to gender thus ‘reflecting the existing state of humanitarian and international criminal law’ (Glasius 2006:85). ICC practice is characterized by overreach and under-reach. His specific criticisms are as follows: Part I. Fifty years of fighting for a better future . Two reasons come to light: many of these states have not joined the ICC and therefore do not recognise the courtâs jurisdiction (34 of 54 African UN member states are parties to the court. And ad hoc predecessors in Rwanda and the former Yugoslavia (which were established under the UN Security Councilâs authority) have helped pave the way. The first approach is appealing. In April it will be 16 years since the Court’s first prosecutor was sworn in. The main purpose of the ICC … This is unsatisfactory on the long term, and will need to be looked in the future. … Required fields are marked *. Cumbersome procedures, ineffective prosecutions against high-level alleged perpetrators, and weak internal management are among current criticisms of the ICC. But it also has certain risks and drawbacks. Indeed, the majority of African countries under current investigation (DRC, Uganda, Mali, CAR I, and CAR II) have arisen from self-referrals. The destiny of the defendant might largely depend on what Chamber he or she faces. One of the most fundamental criticisms of the ICC is that it would apply international criminal law selectively and focus on Africa. Structurally, international criminal justice in The Hague is somewhat introverted. There are valid criticisms of ICC action: It relies on the cooperation of member states, including those the court may one day have to prosecute. How does the International Criminal Court answer criticisms that it is illegitimate? Claims by the IPCC in WGIII chapter 11 that climate policy would stimulate growth and create jobs are biased and not based on peer-reviewed literature. The struggle to eliminate racial discrimination . Should it carry out ‘thematic’ investigations and prosecutions, that signal that certain contemporary forms of atrocity violence, such as electoral violence (Kenya), gender-based and sexual crimes, destruction of cultural property (Mali), or certain types of human tracking are outlawed? The ICC’s definition and interpretation of gender has a direct impact on case selection and jurisprudence and was controversially debated (Oosterveld 2005). Indeed in its two decades of operation the court has mounted investigations in 25 countries, 12 have been African. One of the challenges is to mitigate the risk that Hague justice promotes predominantly global justice, rather than regional or local justice. The Court is fallible, like any institution. A common criticism of the ICC by Africans is that the court is subject to political manipulation. We will only use your personal information to register you for OUPblog articles. In the case of Cote dâIvoire, it accepted the Courtâs ad hoc jurisdiction. The investi… The court can receive referrals from the UN Security Council (as seen in Libya and Sudan) but it mainly operates on the principle of consent. Oxford University Press is a department of the University of Oxford. It is also important to remember that the ICC is a court of last resort and that justice can and has been achieved through other pre-existing mechanisms. Take the debates on ‘peace and justice’ for instance. But the ICC retains the ultimate authority on whether that function has been adequately exercised and, if it finds it has not, the ICC can reassert jurisdiction. The court is currently investigating 11 situations: 10 of which are in Africa. While there are many valid criticisms of ICC action (e.g., epistemic, capacity, and sociological critiques), the tension seems ultimately to be a ‘positive’ one. Many criticisms of International Criminal Court have validity Opinion: Avoidance of difficult cases creates risk of perceived double standards The Court’s strong virtual presence contrasts with the more limited trial record of the Court and some of the unintended or contested effects that ICC intervention produces. Critique is often a reflection of deeper frictions that the Court itself is unable to solve: historical inequalities, geo-political frictions, or tensions between global, regional, and local interests. A balanced assessment of the Court requires a fresh look at fair and unfair critique. First is the issue of credibility. The creation of the ICC was partly an attempt to answer criticisms of imperialism or bias, but McCargo points to the fact that of the 36 people the ICC has indicted in the entirety of its existence, all 36 have been African leaders. Attacking the ICC takes the attention away from where it should be focused: on states themselves. On 6 December 2006, the Tribunal at The Hague approved the use … In environments such as Ukraine, Palestine or Syria, there is a risk that the ICC turns into an instrument of lawfare. Criticisms. African governments are challenging the legitimacy of the International Criminal Court (ICC), accusing it of being biased against their continent. Three have declared their countries’ intention to cease being ICC members. Improvements to the court’s effectiveness and credibility may be possible without amending the treaty incorporating the ICC Statute. Over its entire history, the ICC has successfully convicted only two people. Second, it is becoming clear that whatever international justice institutions do, the ICC is likely to disappoint one constituency or another. Ultimately some of these tensions may be ‘positive’ rather than ‘negative’ tensions. On 11 June 2020 the Government of the United States announced new measures against the International Criminal Court (ICC). It is uncertain if States are willing to use their military or economic force to extricate an oppressive … But without the ICC, would there not be a piece of the puzzle missing (e.g., Colombia)? The African Union’s threat to withdraw from the ICC has made such criticism an urgent issue. The Court struggles to meet some of the expectations that it faces. Can a convention eliminate racial discrimination? Our Privacy Policy sets out how Oxford University Press handles your personal information, and your rights to object to your personal information being used for marketing to you or being processed as part of our business activities. Similar considerations apply in relation to the role of victims. Its criticisms, however, are undeniably grounded in fact. Review of âThe Oxford Handbook on the United Nationsâ. It forces international criminal justice to re-think its identity, and articulate its space in the context of mass violations, also vis-à-vis human rights law and transitional justice strategies. Meanwhile, impunity still reigns despite equally shocking violations of international law occurring in countries like Myanmar and Cameroon, Yemen and Syria. However, many see the ICC as a failure because of the high inactivity and lack of results they have produced. Featured image: Windows: International Criminal Court, The Hague. So, is the court biased or are we asking the wrong questions? There is first a need for a certain sense of modesty. One of the main criticisms following the conclusion of the trial of Thomas Lubanga in 2012 was that after ten years of the Court’s existence it had spent the best part of a billion euros and produced only one first instance verdict. Save my name, email, and website in this browser for the next time I comment. The ICC isn’t the solution to all accountability problems, nor is international criminal justice in itself suited to ‘solve’ or fix deeper societal divides. When the International Criminal Court (ICC) was created in 1998, one of its aims was to end the culture of impunity that political leaders enjoyed in relation to international crimes. Intervention in ongoing conflict remains a problem for the ICC and is likely to remain a challenge in the future. For some, the ICC has stepped from crisis to crisis. CC BY 2.0 via Flickr. Some will no doubt point to ongoing ICC investigations into the actions of UK personnel in Iraq, to impugn the UK’s motives in making these points. The ICC complements existing national judicial systems and it may only exercise its jurisdiction when certain conditions are met – when national courts are unwilling or unable to prosecute, or when the United Nations Security Council or individual states refer investigations to the ICC. It is also closely tied to the United Nations Security Council: Russia, China and the United States, three of the Permanent Five veto-wielding members of the UN SC have still refused to join the ICC and yet they can decide if the court can investigate atrocities committed by non-court signatories. Where they act, they may criticized for interfering with political priorities, such as negotiations or political settlements. Judge Chile Eboe-Osuji on US attacks against the ICC for investigating alleged war crimes in Afghanistan: 'Do you want me to tell you …. It might be counterproductive to present it as a source of salvation. Yet these criticisms miss a very important point. In that sense, ICC practice may be emblematic of the transformation of international law, which develops increasingly bottom-up, rather than top-down. Letâs not forget the ICC has come a long way. So, rather than demanding that the ICC not pursue justice, primarily requested by Africans, in Africa, critics should be demanding that investigations elsewhere not be blocked. Concerns have been raised in relation to the expeditiousness and fairness of proceedings and the treatment of victims (participation, reparation). He has published articles on international criminal law and transitional justice in leading international journals and edited several collections of essays in the field. The ICC was constructed with the idealistic goal to end the presumption of impunity for the powerful. It seems that the many of the core issues are developed through practices, policies, and procedural decisions that aren’t in the limelight. Kenyatta accuses the tribunal of racism. There may be sometimes an attempt to try to do too much at the same time. This poses a legitimacy problem for an ostensibly global court and raises questions over its credibility. 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