The International Criminal Court and its Role in Achieving Justice

In the aftermath of the Second World War the international community came to a general consensus that the matters of peace and human dignity were to be protected, and that those who were to contravene these protections would be held accountable no matter their position or title[1]. Throughout the years the concept of International Criminal Law developed and subsequently led to the creation of the first, permanent, treaty established, international criminal court. The International Criminal Court (ICC) came into existence on the 1 July 2002 after the efficient ratification of the Rome Statute[2], and has been labelled as one of the most important advances in international law since the conception of the United Nations and the espousal of the United Nations charter[3]. As an important institution the ICC does attempt to achieve some of the rather overzealous goals of international criminal law including, inter alia, the ending of impunity[4], recording of a public record of the history of the international community[5], resolving disagreements prior to conflict occurring[6], and identify patterns of disputes and conflicts[7]. However it is important to establish that it has been difficult for the ICC to have any meaningful role in achieving the goals of international criminal justice. For one the ICC is restricted in terms of superiority as it is considered to be a supplementary court rather than a court of superiority.

This means that the ICC can only intervene when a national court is “unwilling or unable” to try the crime or the suspect of those crimes[8]. Furthermore, the ICC is restricted in terms of the crimes that the institution has jurisdiction over[9]. The governing Rome Statute identifies that the ICC has control over a limited number of serious crimes which includes genocide, crimes against humanity, war crimes, and in the future crimes of aggression[10]. Additionally the principle of jurisdiction retione temporis impedes the court from being able to investigate crimes committed before the institution was in force[11]. These restrictions are only some of many boundaries that make it difficult for the ICC to achieve the goals of international criminal justice which suggests that their role is, to an extent, limited. The purpose of this essay is to try to establish the role that the International Criminal Court plays in relation to achieving the goals of international criminal justice, in particular its role in achieving the international community’s most significant yet rather nave objective of attempting to prevent the reoccurrence of war[12]. In order to answer whether or not this has been achieved this essay will critically evaluate the work, progress, and trials of the institution over the years, and will critically discuss two sub goals of international criminal justice that if achieved will help stop the reoccurrence of war. Firstly, the essay will debate the ICC’s role in attempting to eradicate impunity. Secondly, it will discuss how successful the ICC has been as a deterrence to individuals who may consider committing serious international crimes[13]. There is an overabundance of objectives that are the basis of international criminal law some of which are specified, some implied and others inferred from the conduct of international law makers, institutions and experts[14]. One of the broadest goals of international criminal law is the aspiration to have a universal criminal justice system that ends impunity[15]. Impunity is a controversial characteristic of the international criminal justice system that – some academics argue – allows diplomacy to rule over justice[16]. In result, it has been noted that for impunity to be removed in international criminal justice, trial and punishment must be equal for all involved; ‘powerful and weak, rich and poor’[17]. The role that the ICC has had in attempting to achieve the goal of eradicating impunity is enshrined within its governing document. The Rome Statute preamble affirms that states parties are to be “determined to put an end to impunity for the perpetrators of these crimes[18]…” Nevertheless, the goal of ending impunity is a demanding task for the international community to impose, and the extent of the importance of the role that the ICC has in achieving this goal is questionable[19]; especially when compared to the roles that International Military and Criminal Tribunals have played since their conception[20]. In clarification, Phooko – an academic critical of the work of the ICC – implies that the proposal that the ICC holds the powerful to account[21], is in reality nonsense.

Phooko argues that the ICC is incapable of imposing universality in eradicating impunity, as the institution avoids prosecuting heads of states and selectively pursues the ‘small fishes’ involved in the crime[22]. In doing so, the ICC permits perpetrators of heinous crimes exemption from punishment for their actions. Similarly to the point above, the ICC’s role in achieving the goal of eradicating impunity is further criticised due to the institutions focus, which tends to be pointed at the developing countries of the world particularly those in the African continent[23]. As of the time of writing, there are a substantial amount of pending warrants of arrest in African countries including Uganda, Mali, Republic of Congo, the Central African Republic, Sudan, Kenya and the Ivory Coast[24]. This is in contrast to countries in the West where there is a total of zero arrest warrants pending.

Some academics argue that this is impunity in action and give the United States as an example[25]. The United States are a developed nation that are hosting citizens who have committed a succession of international misconducts but will encounter no penalty for their actions as the ICC are preoccupied elsewhere[26]. In support of the ICC – its focus, its credibility and tacit independence – it is seeking to achieve Herculean goals whilst being heavily restricted not only financially but also politically and statutorily, which is tapering the institutions focus to only a few countries, crimes and individuals[27]. To exemplify, the ICC’s jurisdiction only extends as far as the countries who have ratified and signed the Rome Statute, so citizens of the countries out with this criterion cannot be prosecuted for international crimes by the ICC[28]. Surprisingly, this problem is evident in the majority of the larger, most contentious countries of the world including the USA, Russia, China, India and Israel[29]. Finally, the ICC’s role in achieving the goal of eradicating impunity is very much reliant on state cooperation. As mentioned previously in order for the ICC to try an individual for a serious crime within the jurisdiction of the ICC the national court must first of all be “unwilling or unable” to try the crime or the suspect of those crimes[30]. However, even if this is the case, the ICC requires the assistance of the state in order to extradite and prosecute the individual[31]as the court does not have its own military or police force to respond to warrants of arrest[32]. The problem with this level of cooperation is that the individuals that the ICC wish to prosecute tend to be those who have a level of power, perhaps the head of state, and it is very, very unlikely that they are going to turn themselves over to the court[33]. This is no more evident than in the case of Omar Al Bashir[34] who has been wanted by the ICC since 2009. The Sudanese pending warrants of arrest are perhaps the most complicated, not only has the country only signed the Rome Statute, but President Al Bashir hides behind the veil of diplomatic immunity as he is still the serving President of Sudan[35]. To avoid the need for state cooperation the case was referred by the United Nations Security Council so that the heinous crimes committed in Darfur, Sudan, could be investigated[36]. However as of yet Al Bashir is still free, and recent developments suggest that the probe into Sudan has been postponed, which has furthered the concern that the ICC is powerless and ineffective in attempting to eradicate impunity[37]. Although the ICC have found it difficult to eradicate impunity within the international criminal justice system, the fact that this is a goal that could eventually be achieved is somewhat of a deterrence to individuals who might have otherwise committed international crimes[38]; thus the ICC’s role as a deterrent is another way in which the institution can achieve goals of international criminal justice[39]. The development of deterrence in international criminal law began when the UN Security Council established the International Criminal Tribunal for the Former Yugoslavia giving it an unbarred time limit on conflicts that could be tried[40]. Diverging from the retributive, post ex facto tribunals of Nuremberg and Tokyo meant that potential perpetrators where forewarned that they could be held to account for their future criminal actions[41]. Similarly, the ICC’s governing statute emphasises that laws, and by precedent, sentencing[42], should “contribute to the prevention of such crimes”[43]. One way in which the ICC has attempted to deter criminals is by breaking the mould and producing arrest warrants for sitting Heads of State – who were at one point immune to prosecution[44] – which has instated a level of fear into some leaders of countries who are responsible for violence in their state[45]. Furthermore the ICC’s ability to deter has been praised by individuals at the heart of the ICC’s focus. The Justice Minister for the Democratic Republic of Congo declared that tensions surrounding elections in 2011 had been suppressed and violence avoided by the deterrent effect of the ICC[46]. This suggests that the ICC just being in existence has created a deterrent effect that to some extent will help achieve the goal of preventing the reoccurrence of war and conflict. Another way in which the ICC has the ability to deter is through punishment of individuals who are convicted of international crimes creating a precedent which will deter the individual and onlookers from committing future criminal conduct[47]. The incapacitation of the offender is the judgement primarily used by the Prosecutor of the ICC when considering the punishment of a perpetrator who is before the ICC as it is a more reliable way to promote prevention[48]. It is suggested that by incapacitating the perpetrator there will be two main benefits; for one the individual prosecuted will not be able to carry out any further crimes themselves[49], and two they will not be able to influence other potential offenders to carryout future crime[50]. Speculatively it is easy to state, like some optimists of the ICC[51], that the ICC has been successful in deterring individuals in terms of both specific and general deterrence. However, an identified problem with the use of incapacitation is that it requires a substantial amount of time to have an effect, as such some academics would suggest that the effects of incapacitation are only beneficial for a limited period of time due to restrictions in sentencing of a maximum of 30 years[52]. For these reasons the writer tends to agree that deterrence could and should be a role that the ICC plays when achieving the goals of international criminal justice, however the ICC’s none existent track record of convictions[53], increasing amount of postponements[54], and the rise in additional violence[55] falls short of actually being a deterrent and therefore fails to prevent the reoccurrence of war. In conclusion, it is appropriate to express that the International Criminal Court has failed to achieve the main goal of international criminal justice to stop the reoccurrence of war.

Through the critical analysis of two of the most achievable sub goals of international criminal law that the ICC should have been able to achieve – to end impunity and to deter individuals from committing future criminal acts – it is clear that the institution has not been successful. In actuality, the experiences of the first decade of the ICC have not offered much praise, and the next 10 years will continue to be the same unless the international community cut the red tape that is constricting the ICC. To end, the writer would like to suggest ways in which the ICC could within the next ten years achieve the goals of international criminal justice. Firstly, it is recommended that to eradicate impunity the ICC must somehow become a sine qua non of respect in international society[56], where cooperation is strong between the state and the ICC as without this at its foundations it cannot appropriately fight impunity[57]. Finally, in order for the ICC to be an effective instrument of deterrence it needs to understand that the “men willing to commit mass murder are terribly difficult to dissuade[58]”. By this it is suggested that the ICC needs to be stricter in its approach to prosecuting, by trialling the suspects of heinous crimes and not condoning their actions by shelving the case. This is unfair on the victims and the public interest as a whole[59]. If these points can be achieved the International Criminal Court may be able to progress further towards achieving the goals of international criminal justice in its teenage years better than it has in its infancy.

40] S. Sang-Hyun, ‘Preventative Potential of the International Criminal Court’ [2013] Asian Journal of International Law 203, 203-205

[2] Rome Statute of the International Criminal Court, July 17, 1998, U.N. Doc. A/Conf. 183/9 (last amended 2010) (hereinafter: Rome Statute)

[3] K. Ambos, ‘Observations from an International Criminal Law viewpoint’ [1996] 7 EJIL 519

[4] D. Zolo, ‘Peace through Criminal Law?’ [2004] 2 J. Int’l Crim 727, 730-731

47] R. Cryer, H. Friman, D. Robinson and E. Wilmshurst, ‘An Introduction to International Criminal Law and Procedure’ [2010] 2nd Edition CUP 30-33

48] S. Nouwen, ‘Justifying Justice’ in Crawford and Koskenniemi (eds) [2012] Cambridge Companion to International Law 331, 331

[7] I. Tallgren, ‘The Sensibility and Sense of International Criminal Law’ [2002] 13 EJIL 561, 561

30] J.J. Llewellyn, ‘A Comment on the Complementary Jurisdiction of the International Criminal Court: Adding Insult to Injury in Transitional Context?’ [2001] DALHOUSIE L.J 192

[9] N. Boister, ‘Treaty Crimes, International Criminal Court?’ [2009] New Criminal Law Review 341 [10] Rome Statute, Art.5, Art.6-8bis [11] Ibid, Art 11, Art 24; C. Gegout, ‘The International Criminal Court: limits, potential and conditions for the promotion of justice and peace’ [2013] Third World Quarterly Vol. 34 800, 800 [12] M. Damaska, ‘What is the point of International Criminal Justice?’ [2008] Faculty Scholarship Series Paper 1573 1573 329, 331, 331 [13] R. Cryer, H. Friman, D. Robinson and E. Wilmshurst, ‘An Introduction to International Criminal Law and Procedure’ [2010] 2nd Edition CUP 30-33 [14] T. Jones, ‘The goals of International Criminal Justice are both unachievable and potentially harmful.’ [2014] 1, 1-6 [15] C. Blake-Amarante, ‘Peace vs. Justice: The Strategic Use of International Criminal Tribunals’ [ 2013] Trials and tribulations of international prosecution, 1 [16] T. Krever, ‘International Criminal Law: an ideology critique’ [2013] LJIL 26(3) 701, 710-711 [17] R. Cryer, ‘Prosecuting International Crimes: Selectivity and the International Criminal Law Regime’ [2005] CUP 198 [18] Rome Statute, para 5 of preamble [19]M. R. Phooko, ‘How Effective the International Criminal Court has Been: Evaluating the work and progress of the International Criminal Court’ [2011] Notre Dame Journal of International, Comparative & Human Rights Law 182 [20] R. Bellelli, International Criminal Justice: Law and Practice from the Rome Statute to Its Review (1st, Ashgate Publishing, Ltd., Surrey 2013) 69-78 [21] S. Nouwen, ‘Justifying Justice’ in Crawford and Koskenniemi (eds) [2012] Cambridge Companion to International Law 331, 329 [22] M. R. Phooko, ‘How Effective the International Criminal Court has Been: Evaluating the work and progress of the International Criminal Court’ [2011] Notre Dame Journal of International, Comparative & Human Rights Law 182, 190 [23]Ibid; See N. Waddell & P. Clark, ‘ Courting Conflict? Justice, Peace and the ICC in Africa’ [2008] Royal African Society for further discussion [24] International Criminal Court, ‘Warrants of arrest’ (www.icc-cpi.int n/a) [25] Amnesty International , ‘INTERNATIONAL CRIMINAL COURT: US efforts to obtain impunity for genocide, crimes against humanity and war crimes’ [August 2002] 1, [26] P. Sands, ‘Torture Team: Abuse, Lawyers and Criminal Responsibility’ [2011] Cambridge Review of International Affairs 24 (3) 309, 309; Impunity for George Bush as mentioned in: A. P. Rubin, ‘International Crime and Punishment’ [1993] 34 NI 73, 74 [27] B. Ottley & T. Kleinhaus, ‘Confronting the past: the elusive search for post-conflict justice” [2010] 45 Irish Jurist 107, 143 [28] Rome Statute Art 12(2) [29] The International Criminal Court, ‘The States Parties to the Rome Statute ‘ (https://www.icc-cpi.int ) [30] J.J. Llewellyn, ‘A Comment on the Complementary Jurisdiction of the International Criminal Court: Adding Insult to Injury in Transitional Context?’ [2001] DALHOUSIE L.J 192 [31] Rome Statute, Art. 86, Art.89 (1), [32] P. Clark, ‘Law, Politics and Pragmatism: The ICC and Case 37 Selection in Uganda and the Democratic Republic of Congo’ [2008] Edited by Nicholas Waddell and Phil Clark Courting Conflict? Justice, Peace and the ICC in Africa 37, 43 [33] W. Burke-White, ‘ICC and the Future of Legal Accountability’ [2003] 10 ILSA J Int’l & Comp L 195, 196; M. R. Phooko, ‘How Effective the International Criminal Court has Been: Evaluating the work and progress of the International Criminal Court’ [2011] Notre Dame Journal of International, Comparative & Human Rights Law 182, 187 [34] Prosecutor v Omar Hassan Ahmad Al Bashir, Case No. ICC-02/05-01/09-1, Warrant of Arrest (Mar. 4, 2009) [35] Rome Statute Art 98 (1); [36] Rome Statute Art 13(b) [37] D. Smith, ‘ICC chief prosecutor shelves Darfur war crimes probe’ (theguardian.com 2014) accessed 07/01/2015 [38] C. Gegout, ‘The International Criminal Court: limits, potential and conditions for the promotion of justice and peace’ [2013] Third World Quarterly Vol. 34 800, 809 [39] L. Vinjamuri, ‘Deterrence, Democracy, and the Pursuit of International Justice’ [2010] Ethics & International Affairs 191 [40] S. Sang-Hyun, ‘Preventative Potential of the International Criminal Court’ [2013] Asian Journal of International Law 203, 203-205 [41] UN Security Council Resolution 827 (Tribunal, Former Yugoslavia), [1993] S/RES/827 [42] Prosecutor v Dusko Tadic [2000] 48 A Ch 94-1-A (ICTY): deterrence “may legitimately be considered in sentencing. [43] Rome Statute, para 5 of preamble [44] K. Sikkink, The Justice Cascade (1st, W.W. Norton & Company, New York 2011) 258 [45] C. Gegout, ‘The International Criminal Court: limits, potential and conditions for the promotion of justice and peace’ [2013] Third World Quarterly Vol. 34 800, 809 [46] S. Sang-Hyun, ‘Preventative Potential of the International Criminal Court’ [2013] Asian Journal of International Law 203, 207 [47] R. Cryer, H. Friman, D. Robinson and E. Wilmshurst, ‘An Introduction to International Criminal Law and Procedure’ [2010] 2nd Edition CUP 30-33 [48] S. Nouwen, ‘Justifying Justice’ in Crawford and Koskenniemi (eds) [2012] Cambridge Companion to International Law 331, 331 [49] I. Tallgren, ‘The Sensibility and Sense of International Criminal Law’ [2002] 13 EJIL 561, 569 [50] K. Cronin-Furman, ‘Managing Expectations: International Criminal Trials and the Prospects for Deterrence of Mass Atrocity’ [2013] The International Journal of Transitional Justice, 1, 1-21 [51] C. Stahn, ‘Between ‘Faith’ and ‘Facts’: By What Standards Should We Assess International Criminal Justice?’ [2012] Leiden Journal of International Law 251, 265-267 [52] I. Tallgren, ‘The Sensibility and Sense of International Criminal Law’ [2002] 13 EJIL 561, 576; discussing Rome Statute Art 77 [53] M. R. Phooko, ‘How Effective the International Criminal Court has Been: Evaluating the work and progress of the International Criminal Court’ [2011] Notre Dame Journal of International, Comparative & Human Rights Law 182, 186-190; 190-195 [54] D. Smith, ‘ICC chief prosecutor shelves Darfur war crimes probe’ (theguardian.com 2014) [55] M. Chulov, ‘Syria: UN lists names of Assad officials who could face ICC prosecution’ (theguardian.com 2011) accessed 08/01/2015 [56] C. Stephen, ‘International Criminal Law: Wielding the sword of universal criminal justice?’ [2012] ICLQ 61(1) 55, 63 [57] Ibid 84 [58] G. Bass, ‘Stay the Hand of Vengeance: The Politics of War Crimes Tribunals’ [2000] PUP 58, 58-60 [59] M. R. Phooko, ‘How Effective the International Criminal Court has Been: Evaluating the work and progress of the International Criminal Court’ [2011] Notre Dame Journal of International, Comparative & Human Rights Law 182

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