criticisms of the icc

The ICC is intended to complement national criminal law, not to supplant national jurisdiction over international crimes. Analysis of the Prosecutorial Strategy and Policies of the Office of the Prosecutor (2003-2011) Recommendations to the Next ICC Prosecutor. Daily life in developing countries (published on Mondays). The prosecution submitted video evidence alleging that Thomas Lubanga Dyilo, leader of the Uganda People’s Congress in the Democratic Republic of Congo, had enlisted soldiers under the age of fifteen to help establish the charge of conscripting child soldiers. The three African governments tha plant to quit the ICC did not point to the proposed African Court’s role in pursuing criminal accountability especially for international crimes. These three commissions should all be placed within the Department of Commerce in a position similar to that of the Mari-time Board and subject to the same general policy guidance of the Secretary. The ICC Rome Statute carries with it safeguards against politically motivated investigations and prosecution. On the BBC, Eboe-Osuji was also asked why, in spite of harsh criticisms, he thought the ICC deserved to be sustained. The ICC has faced a number of criticisms from states and society, including objections about its jurisdiction, accusations of bias, questioning of the fairness of its case-selection and trial procedures, and doubts about its effectiveness. On the other hand, the AU has repeatedly criticised the ICC since 2009, when it issued the first arrest warrant for Sudan’s President Omar al-Bashir, accusing him of genocidal violence in his country’s Darfur region. 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. In either scenario, domestic politics tend to hamper the ICC’s work, as well as the broader cause of local democracy and justice. Moreover, the criticisms of the ICC come against the background of the global crisis for multilateralism more generally. This principle of national prosecution applies regardless of the outcome of national proceedings. Previously, only states, but not individual persons, had been subjects to international law. It is uncertain if States are willing to use their military or economic force to extricate an oppressive … More fundamentally, there is the existential question: How can the ICC leave a lasting impact although it has to be selective by definition? Or subscribe to articles in the subject area by email or RSS, Your email address will not be published. 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. It is, however, difficult to discern that the ICC has a fundamental anti-African bias. An important Nuremberg judgment included the statement that “crimes under international law are committed by men, not abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced”. Also for the first time, defendants were tried for crimes against peace, crimes against humanity and war crimes. Save my name, email, and website in this browser for the next time I comment. This line of reasoning cannot be easily dismissed. … During the first election of ICC officials, Mr. Luis Moreno-Ocampo was unanimously elected as the first Prosecutor of this institution. It is uncertain if States are willing to use their military or economic force to extricate an oppressive … This is unsatisfactory on the long term, and will need to be looked in the future. The present US administration is notoriously hostile towards this international institution. Where they are absent, such as in Syria or North Korea, their absence is deplored. Third, there is a certain degree of duplication in terms of procedures. It furthers the University's objective of excellence in research, scholarship, and education by publishing worldwide. Many criticisms of International Criminal Court have validity Opinion: Avoidance of difficult cases creates risk of perceived double standards Burundi has also quit the ICC. 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. Detailed assessments of developmental issues in the relevant context. The ICC therefore takes away one of the States main functions; thir sovereignty, and as a result this undermines their authority. Criticisms. A balanced debate concerning the future of international criminal justice is needed. In 1998, the ICC was established as a permanent institution. One of the most fundamental criticisms of the ICC is that it would apply international criminal law selectively and focus on Africa. The setting up of international criminal tribunals – including the ICC – was thus guided by the notion that serious crimes undermine international peace and security and must therefore not go unpunished. Close. A common criticism of the ICC by Africans is that the court is subject to political manipulation. The Nuremberg International Military Tribunal laid the foundation for the establishment of subsequent tribunals including the International Military Tribunal for the Far East (Tokyo Tribunal) in 1946, the International Criminal Tribunals for Rwanda (1994) or for former Yugoslavia (1993). Criticisms of The International Criminal Court: Checks and balances - United States Critics argue that there are "insufficient checks and balances on the authority of the ICC prosecutor and judges" and "insufficient protection against politicized prosecutions or other abuses". The ICC's task is something broader and more enduring.3 I am not making a prescription but simply noting that we should be aware of these patterns. “Teaching democracy is just as important as teaching maths”, Urban growth can cause water supply problems, My family succeeded in leaving dismal informal housing, Book shows rays of hope in climate crisis. last contributed to D+C/E+Z in summer of 2020. by dividing the regulatory functions of the ICC among three separate commissions dealing respectively with rail, water, and highway trans-portation. Indeed, US-ICC relations have evolved over the past decade. Some ICC intervention have been perceived as stifling domestic or local responses, or creating local inequalities (e.g., funding). It has become doubtful whether the Court should too easily proclaim that its goal is to strengthen domestic jurisdiction or that the absence of cases is a success. However, the concept of justice is not only contentious in Africa but everywhere. ICC practice is characterized by overreach and under-reach. Sometimes, different Chambers seem to re-invent the wheel. Indeed, punitive forms of accountability may harm efforts to end a conflict, build national unity and bring about reconciliation. Syria, for example, never joined, while most African countries did. After World War II, however, the international community felt it had to act in cases when states were unable or unwilling to take culprits to court. Third, what is presented as a tension might not always be a ‘negative’ tension. Preliminary examinations of the Court have turned into one of the most significant instruments of Court practice. no. How does the International Criminal Court answer criticisms that it is illegitimate? As Iain Macleod and Shehzad Charania rightly point out in their post, the ICC faces serious challenges in relation to credibility, legitimacy, and expectations. They undermine our common endeavor to fight impunity and to ensure accountability for mass atrocities. The Court is fallible, like any institution. One reason is that only the UN Security Council can initiate ICC proceedings if a country is not an ICC member. A popular criticism of the International Criminal Court (ICC) is that, by focusing solely to date on African conflicts, it represents a neo-colonialist intervention in the affairs of African states. The International Criminal Court (ICC) has come in for strong criticism - most recently from the United States, but also from many African nations. 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. The ICC has been subject to criticisms since its establishment. I would like revisit some of these critiques. It has become topical to say that the International Criminal Court (ICC) is in crisis. The ICC is a general, future-oriented international criminal court – that is to say no selective criminal court, also no retroactive criminal court, as the ad hoc Tribunals for the former Yugoslavia and for Rwanda, and the so-called hybrid courts for Sierra Leone and Cambodia. Physicians for Human Rights: The ICC has received a variety of criticism. Featured image: Windows: International Criminal Court, The Hague. The growing tensions are worrying in regard to Africa’s development and the application of international criminal justice. For the first time, individuals were prosecuted for “new” crimes – crimes that had not been defined as such when they were committed. Required fields are marked *. 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While it is clear that the AU is of the view that the Court’s prosecutorial decisions are politically motivated, it is equally clear that their discomfort with the Court is itself politically motivated.13 Part II examines Africa’s contribution to the creation of the ICC. Darleen Seda is a project officer and researcher at the International Nuremberg Principles Academy. The ICC has been subject to criticisms since its establishment. True. 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. Numerous African leaders have threatened to do the same and have long called the court biased. According to the prevailing ICC case law, a case can be found admissible before the ICC every time there is a lack of national proceedings and without the need neither to evaluate the willingness or ability of the State nor to examine the grounds behind the States’ choice not to prosecute. 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. Kony 2012 is a short video made by Invisible Children, an organisation founded by a group of young American activists, that calls on people to demand the capture of the leader of the Lord’s Resistance Army, a rebel group originating in northern Uganda that has committed numerous atrocities against civilians. The destiny of the defendant might largely depend on what Chamber he or she faces. In that sense, ICC practice may be emblematic of the transformation of international law, which develops increasingly bottom-up, rather than top-down. Summaries of trends, conferences, studies and wiki-like briefs. CC BY 2.0 via Flickr. In the ICC context, there is sometimes a drive for emancipation, rather than structural openness. Oxford University Press is a department of the University of Oxford. A particular irony of the matter was that both indicted politicians had promised to cooperate with the ICC during the election campaign of 2013, but argued that the ICC was interfering in Kenya’s sovereignty once they were in office. Photo by Roman Boed. In some fields, such as sexual- and gender-based violence, the Rome Statute and its procedure are still way ahead of domestic law, and might set important examples. The present US administration is notoriously hostile towards this international institution. This trend may be shifting. 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 … 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. Your email address will not be published. The ICC Rome Statute carries with it safeguards against politically motivated investigations and prosecution. 6. The principle of sovereignty under international law confers sovereign states with the power, authority, rights and duties to manage their own people and territory. The African Union, for example, has accused the court of anti-African bias. African governments are challenging the legitimacy of the International Criminal Court (ICC), accusing it of being biased against their continent. Carsten Stahn is Professor of International Criminal Law and Global Justice at Leiden University and Program Director of the Grotius Centre. The International Court has been criticized with respect to its rulings, its procedures, and its authority. Our Court is also – and this is again of fundamental importance – no so-called ‘Victors’ Justice’. This is a structural limitation of the Court that will persist in the future, whether in Africa or elsewhere. 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. Structurally, international criminal justice in The Hague is somewhat introverted. The Statute is full of ambiguities and dilemmas that cannot be solved in the abstract. While there are justified concerns over the impact of the global Court in Africa, arguments about neo-colonialism exaggerate the strength of the ICC. Thanks and best wishes, In the American Bar Association (ABA) Journal, Kristen Smith argues “The case for the International Criminal Court: Why it deserves our support.”” She highlights the merits of the ICC, and while she does note some flaws, Smith misses the key civil liberties issues that makes ratification unsupportable, at least insofar as the U.S. is concerned. African observers, moreover, state that the ICC is continuously “targeting” Africa and that this attitude is an expression of its western bias. The Nuremberg Trials in 1946 after World War II are considered the birthplace of international criminal … The details are what prove contentious. Several Nazi leaders were found guilty, and some were hanged. There may be sometimes an attempt to try to do too much at the same time. ICC judges have yet to rule on the ICC prosecutor’s November 2017 request to investigate certain crimes committed in the context of the armed conflict … This notion is broad and imprecise, however. 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. In the Court's early days, Congress passed anti-ICC legislation, including the American Servicemembers' Protection Act (ASPA) and the Nethercutt Amendment, which curtailed the extent to which the US could cooperate with the ICC. necessarily the purpose of the ICC to equalize criticisms. False. The International Criminal Court (ICC) has come in for strong criticism - most recently from the United States, but also from many African nations. The African Union (AU), moreover, has been criticising the ICC for years, and its arguments deserve attention. The Court struggles to meet some of the expectations that it faces. 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. Today, the relationship between African governments and the emerging regime of international criminal law is at a crossroads. Burundi, South Africa and Gambia have announced they will quit the ICC. It seems that the many of the core issues are developed through practices, policies, and procedural decisions that aren’t in the limelight. Biden won thanks to 23,000 voters in three states, German government officer assesses the limits of ODA, Demands for criminal accountability can be an obstacle to peace. The tensions increased when Uhuru Kenyatta and William Ruto, who had been indicted for Kenya’s 2007/08 post-election violence, became the country’s president and deputy president in 2013. necessarily the purpose of the ICC to equalize criticisms. Interestingly, throughout the ICC’s case history – including both opened and rejected investigations – it is seemingly non-members, with an emphasis on the US, China and Russia, who have enjoyed a large say in shaping ICC outcomes (see Mamdani 2008). Although there are some preliminary investigations outside Africa, 10 of 11 situations under investigation (situations in the trial phase) are carried out in African countries. 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. The choice of three individual governments, however, is not a pan-African one. Criticisms generally come from two directions. 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