School of Politics and International Studies

Responsibility to Protect Student Journal

The International Criminal Court: A Shackled Elephant in the Court Room?

Enyeribe Oguh, University of York, United Kingdom

Enyeribe is a postgraduate law student at the York Law School. He graduated magna cum laude in law (LLB) from the University of Leeds in 2015. He is interested in international criminal justice and he is currently working on secession and the use of force.

It is not in the interests of international justice that the ICC should have jurisdiction over nationals of small and weak nations but not those of the large and powerful. (Goldstone, 2012)

The Rome Statute (the Statute) entered into force on 1st July 2002, but has since been subject to much controversy. Yet, recently the Court was described as ‘the jewel in the crown’ of international criminal justice (Stephen, 2012, p.73). This ‘jewel’ is the outcome of several weeks of heated debate and compromise that culminated in the creation of the Statute on 17th July 1998 (Lee, 1999; Conso, 1999). While marking that historic event, Kofi Annan (1999) as UN Secretary General, declared the Statute to be ‘a gift of hope to future generations’ and ‘a giant step forward in the march towards universal human rights and the rule of law’. The Statute, according to Luis Moreno-Ocampo (2008), also signified a major shift ‘from an era of ad hoc international tribunals to … an independent and potentially worldwide system of international criminal justice … aiming to protect each citizen in the world’.

Barely two decades after its creation however, the Court is heavily pilloried in some circles (Robinson, 2015). Critics call it a tool to e exploited by Western powers to humiliate maverick leaders and citizens of weaker states (Goldstone, 2012). This perception swelled in the wake of the UN Security Council (UNSC) referral of the Darfur situation to the Court. The legality of that referral was questioned by former African Union (AU) commissioner, Ramtane Lamamra, in light of the fact that three of the UNSC Permanent Five (P-5) members have not yet ratified the Statute and as such do not belong to the Court’s jurisdiction (BBC News, 2013). Consequently, some leaders, such as Rwanda’s President Paul Kagame, have dismissed the Court as flawed and ‘fraudulent’ (Kezio-Musoke, 2013) while others, including Prime Minister Desalegn of Ethiopia, believe that it is engaged in ‘race hunting’ (BBC News, 2013). The Court has also been accused of lacking universality in its application and choice of legal systems (Badar, 2011).

Against this backdrop, this paper carefully evaluates the merits of some of the above criticisms in relation to the Court’s credibility. To begin with, it examines, in section II, the extent of the Court’s jurisdiction as established in its founding Statute and underscores some of the inherent limits therein. In section III, the thesis of a toothless Court with a political bias against weak states, particularly within the African region, will be critique. In the final section IV, the paper will analyse the ways in which some of the Court’s weaknesses can be judiciously addressed.

The Extent and the Limits of the Court’s Jurisdiction

The creation of the Court in 2002 marked a radically innovative contribution to the international criminal justice system (United Nations, 1998). In furtherance of the purposes and principles of the UN Charter (Rome Statute, 1998, Preamble), the Statute introduced for the first time in history an independent and permanent court (1998, art.1) that has competent jurisdiction to prosecute and punish perpetrators of ‘the most serious crimes of concern to the international community’ (1998, Preamble). Its stated primary objective is to end ‘impunity for the perpetrators’ of the relevant crimes and ‘to contribute to the prevention of such crimes’ (1998, Preamble) through the twin principles of complementarity with national criminal jurisdictions and cooperation with states. It is pertinent, thus, to consider the breadth and the bounds of the Court’s authority as specified in its Statute.

About two millennia ago, the great Roman Senator Marcus Tullius Cicero declared that ‘in the midst of arms, law stands mute’ (United Nations, 1998). But today, in the era of the Rome Statute that Ciceronian maxim may no longer hold water. Not being subject to any statute of limitations (Statute 1998, art.29), the Court is authorised to act ‘in the midst of arms’ or in time of peace, to uphold a non-negotiable red line between hostile parties, and to hold accountable those who bear the most responsibility for trespassing the red line (art.27-28). This is one of the unique innovations of the Court relative to the previous ad hoc tribunals all of which lacked permanent jurisdiction and were usually constituted only at the end of hostilities.

Before it can act, however, the Court must first satisfy itself that it has jurisdiction and that the situation is not inadmissible (Statute, 1998, art.17). Its primary jurisdiction ratione materiae (subject-matter jurisdiction) pertains to the following crimes, to wit: (a) genocide; (b) crimes against humanity; (c) war crimes; and (d) the crime of aggression (1998, art.5). Except for the latter whose definition was only articulated at the 2010 ICC Review Conference in Kampala, the constitutive elements of the rest of the crimes here are outlined in Articles 6, 7, and 8 of the Statute. Effectively, however, the Court’s jurisdiction over the crime of aggression is suspended until 2017 when its Kampala definition will enter into force provided at least thirty state parties ratify the said amendments (Traschler, 2013). Even where these crimes are alleged to have been committed, however, the Office of the Prosecutor (OTP) would have to establish that ‘a reasonable basis’ (1998, art.15(3)) exists to initiate an intervention. If established, then the Pre-Trial Chamber considers, among other things, the following: (i) that the case is of the sufficient threshold of gravity (1998, art.17(d)); (ii) that it is not under investigation or prosecution by a state with the relevant jurisdiction (1998, art.17(a)); and (iii) that the interest of justice will be served by an intervention (Moreno-Ocampo, 2010).

The Court’s jurisdiction, however, is limited in a number of ways. Principally, it lacks universal jurisdiction and therefore cannot intervene in every state. This is an unfortunate drawback that has driven most of the key controversies surrounding the Court. Under Article 12(2) of the Statute, the Court can only exercise jurisdiction if the relevant crime has been committed on the territory or by a national of a state party (or a state that has accepted the Court’s jurisdiction through a declaration). This provision, which was a negotiated compromise to cement the support of some key opponents of universal jurisdiction like India and the United States (US) during the Rome negotiations, is perhaps the greatest blow to the vision of a genuinely global Court (Robertson, 2002, p.347). In effect, Article 12 of the Statute restricts the Court’s jurisdiction to only the territories and nationals of state parties, save under special circumstances. So, as most states in the Middle East are yet to ratify the Statute, it implies that situations like Iraq, Yemen or Syria (Hilmy, 2013) are beyond the Court’s reach without a UNSC referral (Statute, 1998, art.13(b)).

Similarly, the Court also lacks authority even to consider the crimes within its subject matter jurisdiction that were committed before the entry into force of the Statute on 1st July 2002. This temporal limitation, ‘jurisdiction ratione temporis’ under Article 11 of the Statute, implies that in principle the Court has no retrospective jurisdiction and thus can do nothing about for example a crime of genocide committed on 1st June 2002 within the territory of a state party. Article 24(1) of the Statute clearly specifies that, ‘no person shall be criminally responsible under this Statute for conduct prior to the entry into force of this Statute.’ Whereas this is consistent with Joseph Raz’s (1994, pp.373-4), idea of the prospective principle of the rule of law, it is inconsistent with the tradition of ad hoc tribunals such as the International Military Tribunal at Nuremberg (IMT), the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR) or the Extraordinary Chamber for the Court of Cambodia (ECCC) that usually looked backwards and prosecuted crimes that had been committed long before the tribunals were established. By choosing 1st July 2002 as its cut-off date, the reach of the Court was scythed down to the 21st century perpetrators.

Furthermore, the Court’s jurisdiction in states that ratify the Statute after 1st July 2002 is restricted to the period only after the entry into force of the Statute for the specific states unless a state indicates otherwise by means of a declaration (1998, arts.11(2), 12(3)). Arguably, such a ‘generous’ provision may explain why as many as 70 states are yet to ratify the Statute (Trachsler, 2013, p.3). It can also incentivise rogue leaders who had perpetrated heinous crimes or who intend to hang onto power by vicious means to be in no hurry to ratify the Statute. Article 11(2) of the latter is again another unfortunate concession from the Rome Conference. Quite unlike the IMT that prosecuted corporations for criminal liability in the Nazi war crimes, the Court has no jurisdiction over jural persons but only over ‘natural persons’ (Statute, 1998, art.25) who are at least 18 years old at the time of the alleged conduct or omission (1998, art.26). Thus, arms and munitions companies that supplied the weapons that were used to slaughter victims, media companies that spread hate-propaganda that led to genocide, and hardened child soldiers (Prosecutor v. Lubanga [2012])[1] who raped or killed victims with impunity cannot be brought before the Court for trials or be made to pay reparations to the victims of their crimes.

At any rate, the Statute grants the UNSC, in keeping with Chapter VII of the UN Charter, the right to refer situations anywhere in the world to the Court as one of the three conditions that can trigger the Court’s exercise of jurisdiction. This Article 13(b) provision gives the Court the semblance of a quasi-universal jurisdiction since the UNSC has the primary duty under Article 24(1) of the UN Charter to maintain global peace and security just as all UN member states are obliged under Article 25 of the Charter to respect the UNSC decisions. Owing to the political nature of the UNSC, however, it can be expected that the use of this referral power will be rare due to its political ramifications. As the case of Syria shows, some of the UNSC P-5 members with a vested interest in ongoing conflict situations may likely veto any referral to the Court and the UNSC has also to be wary of negative public perceptions of its role towards the Court. To date, the UNSC has invoked its referral power only twice with respect to the situations in Darfur and in Libya. Under Article 16 of the Statute, the UNSC is also empowered to instruct the Court to defer an investigation for up to a year (order that is renewable for another year). Both provisions, expectedly, have been much criticised as opening a sort of a back door to the political control of the Court by the UNSC (Robertson, 2002, p.353).

The two other conditions that trigger the Court’s jurisdiction include referrals from state parties and the proprio motu investigations initiated by the OTP. With respect to the latter, perhaps as a way to curtail abuses or ‘politically motivated prosecutions’ (Corell, 2000), the OTP is obliged to obtain the endorsement of the Pre-Trial Chamber on the admissibility of the alleged charges before commencing a formal investigation. Her power, which is also restricted to the territories and nationals of state parties, has so far been exercised only once in the collapsed Kenyan situation. In contrast, about four state parties, including DRC, Uganda, CAR and Mali, have so far made self-referrals to the Court.

Crucially, however, the Court’s jurisdiction is only secondary and complementary (not an alternative) to the national criminal jurisdictions of state parties. Thus, it cannot intervene where a municipal court is already investigating, prosecuting, or has convicted or acquitted an accused (see the Statue, arts.17-18, on issues regarding admissibility). Under this ‘principle of complementarity’ and consistent with the rule against double jeopardy, the Court is also not entitled to exercise jurisdiction over someone who has already been tried ‘by another court’ for conduct that forms the subject of its complaint (Sands, 2003, p.74). Likewise, it cannot retry a case that has already been investigated and dismissed for genuine reasons by a state with the relevant jurisdiction (p.74). Only where the Court determines that the domestic mechanisms are ‘unwilling’ or ‘unable’ to act is it mandated to assert its jurisdiction. Such a determination for instance may consider whether a municipal system is inactive or too dysfunctional to act.

Similarly, where a trial is in process or has already taken place, the Court is authorised to intervene if the local processes are adjudged to be biased or ineffective to bring about justice. In either event, as was first witnessed in the case of Thomas Lubanga (Prosecutor v. Thomas Lubanga [2012]), the Court may invite the municipal authorities concerned to transfer the case to the Court with the aim to assist and to complement domestic efforts ‘to investigate and prosecute’ (Gupta, 2000, p.1). By giving primacy to municipal courts in lieu of the Court, the Statute expresses respect for national procedures. This also has certain practical advantages in terms of cost-effectiveness (Nsereko, 2013), familiarity of the municipal jurisdictions with the local contexts and the sheer impossibility of the Court to have capacity to prosecute all indicted or indictable key perpetrators in The Hague. The setback, however, is that the Court’s intervention in a conflict without the relevant state’s consent (or even with its consent) has drawn criticisms for feeding negative judgments of the state’s international image and the quality of its local systems. To this we now turn.

The Elephant in the Room: A Court with a Political Agenda?

In a critical essay on judges and the rule of law, Ronald Dworkin (2009) opined that court decisions have political consequences. Asked, however, if politics influenced his decisions at the Court, the former Prosecutor Moreno-Ocampo replied, ‘On the contrary, I am putting a legal limit to the politicians. That’s my job. I police the borderline and say, if you cross this you’re no longer on the political side, you are on the criminal side’ (Smith, 2009). Notwithstanding the former Prosecutor’s frankness, the Court has appeared to many as a judicial body operating with a covert political agenda within a highly political terrain. In a sense, the Court has seemed to some like an elephant in the room: big, strong and visible, yet unable to command the respect of some key states.

Much of the criticism, however, has focused on the Court’s operations in Africa. Many have argued that the Court has been unfairly selective of African situations in a manner that appears to suggest that Africa has the disproportionate cases of violent conflicts in the world (Imoedemhe, 2015). Thus, the Court has been denounced for scapegoating Africa and for exploiting the continent as a laboratory for trialling novel international criminal laws (Imoedemhe, 2015). This perception is acutely strong among the African elite with some like Kenya’s President Uhuru Kenyatta describing the Rome Statute as a ‘dysfunctional instrument’ (Ayaga, 2016). The fact that the AU recently adopted a proposal for a mass withdrawal of African state parties from the Court epitomises the longstanding frustration and disappointments of many African leaders with the Court’s alleged bias against Africa (Ayaga, 2016). For some time, a number of African state parties like Kenya and Uganda have been threatening to withdraw from the Statute (‘A Joint Report’, 2014), and last year South Africa also declared its intent to terminate its state membership (Mudukuti, 2016).

Ex facie, the above threats and repudiations towards the Court by some African leaders have grounds. Although one third (34) of the Court’s member states (124) are in Africa, all but one (Georgia) of the ten situations under investigation are African (ICC, 2016). It would, ergo, appear as claimed that the Court is unfairly targeting Africa (Agence France-Presse, 2016) or that the continent has the lion’s share of genocidal villains in the world. Nevertheless, a careful scrutiny of the situations under consideration reveals that of the nine cases from Africa, five (DRC, CAR, Uganda, Mali, and CAR II) had been self-referrals by the state parties themselves, two (Sudan and Libya) were Security Council referrals, one – the Ivorian case – was a declaration made by the state while only the now-abandoned Kenyan case had been initiated by the OTP. The large number of self-referrals from African states then weakens the strength of the argument that the Court is engaged in a neo-colonial ‘race-hunting’ of Africans. Although the Court is presently conducting preliminary examinations in three other regions outside Africa, including Eastern Europe, the Middle East and South America, Moreno-Ocampo (2008) aptly avers that the Court’s legitimacy and success cannot be dependent on the regional or global balance of cases that it handles.

The preponderance of self-referrals from Africa may be revealing of the trust of those African states in the Court’s legitimacy and capacity to enforce justice against the perpetrators as well as to bring closure for the victims. It is perhaps also indicative of the precarious difficulties involved in prosecuting influential perpetrators locally. For instance, before referring the situation to the Court, the DRC had attempted but failed to prosecute Thomas Lubanga and his co-accused in the municipal criminal courts. It is similarly not hard to imagine the high risk and near impossibility of prosecuting ‘big fish’ like the late General Augusto Pinochet[2] or former President Lauren Gbagbo (Prosecutor v. Gbagbo and Goudé [2015]) in their national courts without significant external influence. Thus, it is in such situations where the domestic jurisdictions are incapable of handling powerful perpetrators that the Court’s complementary jurisdiction is properly activated.

Notwithstanding the foregoing prospects, the Court’s complementary interface with state judicial institutions has likewise been deplored as a mechanism for imposing ‘victor’s justice’ (Roach, 2012) and show trials aimed at ‘the destruction, or at least the disgrace and disrepute, of a political opponent’ (Peterson, 2007, p.260; Shklar 1964, p.149). Critics have noted that all the self-referrals from the African states have been made against defeated political rivals while the governments’ and/or their supporters’ responsibilities are shielded from the Court (Roach, 2012, pp.67-69; Holligan, 2016). In Uganda, for example, Joseph Kony and some of his Lord’s Resistance Army (LRA) fighters have been indicted at the Court while the atrocities committed by the Ugandan forces are not even investigated (Roach, 2012, p.67). Even the two UNSC referrals are also being read as a ‘power play’ by some Western powers to humiliate and to punish perceived enemies in President Al Bashir and the late Colonel Gadhafi. It was on that score that President Kagame recently hinted that Rwanda cannot be a state party to the Court since, for him, the latter perpetuates Western imperialistic agendas (Kezio-Musoke, 2012).

At the same time, however, what President Kagame and his ilk seem content to exclude from the discourse is the question of their self-interests. For instance, between 2010 when he was indicted at the Court until 2013 when he was elected Kenya’s President, Kenyatta together with his co-indicted Deputy, William Ruto, had cooperated well with the Court. But, once assuming the reigns of power, their attitude and rhetoric became somewhat hostile and they began to insist upon their ‘sovereign’ immunities as head of government and state officials respectively. It is, therefore, no surprise that their cases have now been allegedly abandoned for lack of evidence caused by witness intimidations (The Prosecutor v. Ruto and Sang [2016]). The Statute categorically specifies under Article 27(1)[3] that unlike in customary international law the immunity of state officials (both ratione personae[4] and ratione materiae[5]) is irrelevant and cannot exonerate an individual from ‘substantial criminal responsibility’ (Akande, 2003, p.640), regarding the specified crimes.

Lastly, while it is mostly true that law and politics are interrelated, both can also be isolated one from the other. The Judges at the Court as well as the Chief Prosecutor are essentially elected by the Assembly of the state parties on account of their professional and international experience and are required to uphold justice and fairness without pandering to selfish interests and political considerations (Moreno-Ocampo, 2010). Yet, the fight against impunity has always been a fight against politics (Nouwen and Werner, 2010) and selfish interests. Thus, decisions and acts of such a momentous court as the ICC, to paraphrase Dworkin (2009), will surely have monumental consequences. To be able to exercise universal credibility, therefore, it is imperative that the Court is not only above board, but also be seen to be above board. The next section will proffer some means by which the Court can attain this objective.

Unshackling the Elephant Court: Looking Ahead

Having briefly examined the scope and limits of the Court, it is important to consider certain mechanisms that can serve to remedy some of the lacunae identified above. Arguably, the Court is still cutting its teeth, albeit slowly and contentiously, yet it has the potential to have an enormous impact on the global criminal justice system. ‘By holding individuals personally accountable,’ says Human Rights Watch (1998), ‘the Court could be an extremely powerful deterrent to the commission of genocide, crimes against humanity and serious war crimes that have plagued humanity’ for so long. But realising this goal has so far been a staggering task. Looking ahead, therefore, the first critical challenge the Court needs to address is its lack of universal jurisdiction.

It was the intention of the drafters of its Statute that the Court should have the competent authority and the capacity to prevent, deter, punish and end the culture of ‘domestic impunity’ (Gupta, 2000, p.3) anywhere in the world. But political interests and concessions shaved the Court of universal jurisdiction. This gap, unless it is plugged, will continue to undermine the Court’s credibility. Universal jurisdiction would vest the Court with the power to institute legal action against any alleged perpetrator of the relevant crimes ‘without regard to where the crime was committed, nationality of the alleged or convicted perpetrator, the nationality of the victim, or any other connection to the state exercising such jurisdiction’ (Macedo, 2006, p.21). This capacity is already extant in international law as reflected in the principle of aut dedere aut judicare (‘either extradite or prosecute’) that is embedded in many treaties. Thus, universal jurisdiction gives national courts the power to prosecute perpetrators of crimes deemed to be of such exceptional magnitude as to demand international condemnation (Macedo, 2006, p.35).

If the municipal courts of individual states can unilaterally exercise such a ‘privileged’ jurisdictional power, then it stands to reason that a supra-national court established through a multi-lateral treaty between sovereign states deserves to have such a power if it must lay any authentic claim to real complementarity, universality, credibility and respect. Considering that the principle of sovereign immunity of state officials often impedes states from arresting accused state officials, it is only a supra-national court not bound by such political immunities that holds the best chance of bringing such indicted persons to justice. Hence the Court can gain universal jurisdiction in two ways: (i) by actively encouraging and inducing non-state parties to sign and ratify the Statute until all states have joined it or, (ii) through a binding UN resolution mandating all states to ratify the Statute within a specified time. Either alternative, while possible, would be hard to attain.

In addition, the UNSC right to defer investigations under Article 16 of the Statute poses problems to the Court owing to the political ramifications of any such deferral. Already, as I have shown in the foregoing, the Court has taken enormous criticisms for the UNSC referrals and one can only imagine the opprobrium that could result from any future deferrals, particularly after deferral requests made to the UNSC by the AU with regards to the Al Bashir’s case had been denied. Since political calculations often drive the proceedings at the UNSC, in order to preserve the judicial independence of the Court, Article 26 of the Statute should be repealed or at least amended so as to debar the UNSC from interfering with the Court. Apart from Resolution 1422[6] in which the UNSC, at the insistence of the US, requested the Court not to investigate or prosecute any indicted UN peacekeepers within a specified period, the UNSC is yet to invoke this power to defer an ongoing action at the Court. Yet, it is conceivable that in the future a decision to defer a situation in state A or state B could be vetoed by a P-5 state for political interests. Besides, in situations where states or regions (as was done by Kenya and the AU) request the UNSC to instruct the Court to defer an investigation but the requests go unheeded it could be interpreted as a sign of blatant disrespect to the integrity of the state and/or region. This could fuel threats of withdrawals from the Statute and accusations of self-serving agendas. As Brownlie (2003: 575) rightly notes, so long as the UNSC retains this deferral power in the Statute, ‘political considerations, power and patronage will continue to determine who is tried for international crimes and who is not.’

Relatedly, the Court was established to be an independent Court and must therefore be vested with true judicial independence. The doctrine of separation of powers is a key principle cherished in all liberal democratic states. In municipal jurisdictions, it would be arbitrary for state executives to be issuing orders to courts to terminate or to suspend ongoing proceedings. Thus, the visible separation of the Court’s structure and personnel from the UN structures should also be reflected in the practice and operations of the Court. The power to defer prosecutions, where necessary, should be discretionary to the Court where there are compelling reasons to do so, or a determination made by an absolute majority of the judges of the Court not by the UNSC. The latter should, however, like state parties, retain the power to refer situations to the Court. But the onus must be the Court’s to decide if a referred situation is admissible or not to justify intervention. To ensure the principle of checks and balances, only the Assembly of State parties (or the UN General Assembly when the Court has universal jurisdiction) may be vested with the statutory right to request a stay of proceedings at the Court. The latter should also be free not to grant the request. When these structures have been put in place, it would then be safe to assume as the International Court of Justice noted in an ‘Advisory Opinion’ [1962] regarding the General Assembly that the UNSC would not ‘seek to fetter or hamper the Court in the discharge of its judicial functions.’

Additionally, Article 98 of the Statute[7], which requires the Court to obtain a third states’ cooperation before it can go proceed to seek the surrender of its national from a member state, is a major clog in the operational capacity of the Court. What this provision effectively does is to allow states on whose territory is found a person wanted by the Court to obstruct the Court’s request by appealing to their obligations under international law to a third state (Akande, 2003, p.642). Repealing Article 98 is especially crucial in light of some recent US schemes, mostly instituted by the former President G W Bush Administration, to undermine the Court. After ‘un-signing’ (Rhea, 2012, p.190)[8] the Statute in 2002, the Bush regime actively entered into bilateral immunity agreements with several states to ensure that no US citizen is ever ceded to the Court (Eye and Goldberg, 2012). It also enacted the infamous American Service-Members’ Protection Act (ASPA), otherwise known as the ‘Hague Invasion Act’, which disallows the US agencies as well as countries receiving US military assistance from cooperating with the Court in any form (Rhea, 2012, p.193). The Act also restricts US military participation from some UN peacekeeping operations and authorises the US President to use ‘all necessary measures’ to repatriate any US service personnel and certain other citizens detained or imprisoned at The Hague (Eye and Goldberg, 2012).

If the Court is vested with universal jurisdiction, however, the Article 98 of the Statute will automatically become extraneous since the question of third state consent will fall way. A state party that prioritises an obligation to another state member to defy a request from the Court to surrender an indicted person would then be in breach of its obligations to the Court. The real challenge would be how the Court could enlist state cooperation with the Court at all times and to ensure that states prioritise obligations to the Court over competing obligations to state parties. Similarly, as the Article 27 provision shows the Court is no respecter of distinctions or immunity based on official capacity, a state can no longer appeal to its obligation under international to another state with respect to the immunity of a person or property, so as to defeat an arrest warrant request by the Court. The stark inconsistency of Article 98 with Article 27 would, therefore, come into sharper focus under the light of a universal jurisdiction ensuring that the offending Article 98 of the Statute is either repealed or substantively amended.

Lastly, it must be emphasised that the Court can achieve little without maximum cooperation from states, including even non-state parties. Part 9 of the Statute sets out the various forms and levels of this cooperation. It has been a major test for the Court so far to obtain the cooperation of states under Articles 91 and 92 of the Statute to arrest persons it has issued arrest warrants for. To date, such wanted persons like Joseph Kony (Prosecutor v. Kony and Otti [2005]), President Al Bashir (Prosecutor v. Bashir [2009]) and Al Islam Gaddafi (Prosecutor v. Gaddafi [2011]) are still at large. In some cases, these persons are living normal lives, performing official functions and even visiting state parties, yet no arrests are being made. The damage this blatant disregard does to the image of such a fledgling Court is huge. It suggests to sceptics and to other wanted perpetrators that the Court is little more than a howling Rottweiler or at best just a vexing elephant in the room. There appears to be no surer way to institute a culture of impunity than for state officials to refuse to comply with the orders of the Court.

To this end, the Court could consider issuing ‘contempt of court’ notices against states that openly violating its order and reporting such states to the Assembly of State parties for further action. If the Court had universal jurisdiction, such breaches of the Court’s orders could be reported to the UN General Assembly to authorise the UNSC for appropriate action or sanctions. The Court’s boldness in this regard would be bolstered by the support of civil society and of the wider international community. As many state leaders would not willingly delegate powers to the Court that could ultimately jeopardise their own interests, the Court needs to perform its work especially within these early to the highest standards of credibility and impartiality. A wide public approval and civil society lobbying could be significant in winning the Court the required political capital to effect the reforms identified in this paper in the years ahead.

Conclusion

Notwithstanding the many criticisms and weaknesses of the Court, the one thing that remains undisputable is that it has put ‘the world on notice’ that impunity for certain crimes will no longer go unnoticed and unpunished. Essentially, as Kofi Annan aptly says, ‘it gives concrete expression to Francis Bacon’s famous dictum that not even a sovereign can make “dispunishable” those crimes which are malum in se – evil in themselves, “as being against the Law of Nature”’ (Radio Radical.it, 1999). As is common with many new institutions, the Court is still passing through a developmental strain, but it is learning fast from its mistakes and becoming more self-aware of its strengths and constraints. It can thus be expected that after this initial phase and taking into account many of the issues and flaws herewith considered, the impact of the Court could reverberate from The Hague to all corners of the world. But this ‘jewel’ in the crown of international criminal justice will have failed if the hope of ‘never again’ that greeted its inauguration in 2002 is allowed to be smothered by the cold ‘reality of again and again’ (Goldstone, 1997, p.316).

[1] The first case that was ever tried at the Court concerned the recruitment of child soldiers by Thomas Lubanga in the DRC. He was convicted in March 2012 and sentenced to a total of 14 years in prison.

[2] General Pinochet’s regime ended in 1990 and so he would have escaped the Court’s jurisdiction. Although criminal suits were filed against him in England, Spain and Chile during the late 1990s for various crimes against humanity committed during his ‘reign of terror’ in Chile from 1973 to 1990, he was declared medically unfit to stand trial and died in 2006.

[3] Article 27(1) of the Statute reads: ‘This Statute shall apply equally to all persons without any distinction based on official capacity,’ including ‘a Head of State or Government’. Article 27(2) states: ‘Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising jurisdiction over such a person.’

[4] The immunity attached to officials like presidents, heads of governments and diplomats, which insulates them from the criminal jurisdiction of both domestic and foreign courts while in office.

[5] This relates to the immunity accorded to state officials in relation to the exercise of their official duties.

[6] UNSC Res. 1422 (2002) UN Doc. S/RES/1422, para.1. It states that the UNSC ‘Requests, consistent with the provisions of Article 16 of the Rome Statute, that the ICC, if a case arises involving current or former officials or personnel from a contributing State not a Party to the Rome Statute over acts or omissions relating to a United Nations established or authorized operation, shall for a twelve-month period starting 1 July 2002 not commence or proceed with investigation or prosecution of any such case, unless the Security Council decide otherwise.’ This request was renewed on 12 June 2003, but never again thereafter.

[7] Article 98(1) of the Statute states: ‘The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.’

[8] Harry Rhea has argued that the word ‘un-sign’ misconstrues the intent of the letter signed on behalf of President Bush by the former US Undersecretary for Arms Control and National Security, John R. Bolton and delivered to the erstwhile UN Secretary General, Kofi Annan, on 27 April 2002. For Rhea the letter simply indicated the United States resolve not to accede to the Statute rather than the intent to cancel or withdraw its original signature. But Rhea’s argument is not persuasive considering the fact that the US together with other non-state parties was not obliged to make a formal deposition on non-ratification of the Statute to the Secretary General. Events at the time, particularly the ‘war on terror’ in Afghanistan and the looming Iraqi war may have induced the Bush Administration to retract the original signature to avert any vicarious liability.

Bibliography

A Joint Report. 2014. ‘Museveni to move motion for Africa to withdraw from the ICC’, The East African. 3 December. Available at: www.theeastafrican.co.ke/news/Museveni-to-move-motion-for-africa-to-withdraw-from-the-icc. [Accessed: 8 April 2016]

Anan, K. 1999. ‘Preface’ in Lee, R. S. (ed.), The International Criminal Court: The Making of the Rome Statute. The Hague: Kluwer Law International, p ix

Agence France-Presse. 2016.  ‘African Union members back Kenyan plan to leave ICC’, The Guardian. 1 February. Available at: www.theguardian.com/world/2016/feb/01/african-union-kenya-plan-leave-international-criminal-court. [Accessed: 8 April 2016]

Akande, D. 2003. ‘The Jurisdiction of the International Criminal Court over Nationals of Non-Parties: Legal Basis and Limits’, Journal of International Criminal Justice 1

Ayaga, W. 2016. ‘President Uhuru leads African Union onslaught against ICC’, Standard Digital. 16 February. Available at: www.standardmedia.co.ke/article/2000190052/president-uhuru-leads-african-union-onslaught-against-icc. [Accessed: 7 April 2016]

Badar, E. M. 2011. ‘Islamic law (Sharia) and the jurisdiction of the International Criminal Court’, Leiden Journal of International Law 411

BBC News Africa. 2013. ‘African Union Accuses ICC of “Hunting” Africans’, (27 May). Available at: www.bbc.co.uk/news/world-africa-22681894. [Accessed: 6 April 2016]

Brownlie, I. 2003. Principles of International Law 6th ed., Oxford: Oxford University Press

Brownlie, I. 2009. Basic Documents in International Law (ed.). Oxford: Oxford University Press

Certain Expenses of the United Nations (Article 17, Paragraph 2, of the Charter), Advisory Opinion, [1962] ICJ Reports 151 at 157.

Charter of the United Nations and the Statute of the International Court of Justice, signed 26 June 1945, San Francisco, (entered into force 24 October 1945)

Conso, G. 1999. ‘Epilogue: Looking to the Future’ in Lee, R. S. (ed.), The International Criminal Court: The Making of the Rome Statute. The Hague: Kluwer Law International, pp.471-8

Corell, H. 2000. ‘Evaluating the ICC Regime: The Likely Impacts on States and International Law’, The Rome Statute of the ICC: Global Developments & National Consequences. The Hague, 21 December. Available at: www.legal.un.org/ola/media/info_from_lc/romestatute_dec00.pdf. [Accessed: 7 April 2016]

Dworkin, R. 2009. ‘Political Judges and the Rule of Law’ in Kavanagh, A and Oberdiek, J. (eds.). Arguing About Law. New York: Routledge, pp. 192-211

Eye, W and Goldberg, B. 2012. ‘A Critique of the Evolving US-ICC Relationship’, Humanity in Action. Available at: www.humanityinaction.org/knowledgebase/401-a-critique-of-the-evolving-us-icc-relationship. [Accessed: 8 April 2016]

Goldstone, J. R. 1997. ‘Were they just obeying orders?’ cited in Chesterman S, ‘Never Again … and Again: Law, Order, and the Gender of War Crimes in Bosnia and Beyond’ 22 Yale Journal of International Law 299

Goldstone, J. R. 2012. ‘Is the International Criminal Court an Institution with an African Agenda?’ International Judicial Monitor, Winter Issue. Available at: www.judicalmonitor.org/archive_winter2012/globaljudicialperspective.html. [Accessed: 5 April 2016]

Gupta, K. S. (2000). ‘Extradition Law and the International Criminal Court’, Berkeley Journal of Criminal Law, 3(1)

Hilmy, P. 2013. ‘Does the ICC Have a Future Role in the Middle East?’, Washington Report on Middle East Affairs. December. Available at: www.wrmea.org/2013-december/does-the-icc-have-a-future-role-in-the-middle-east.html. [Accessed: 6 April 2016]

Holligan, A. 2016. ‘Lauren Gbagbo: Ivory Coast ex leader denies war crimes’, BBC News (28 January 2016). Available at: www.bbc.co.uk/news/world-africa-34524653. [Accessed: 8 April 2016]

Human Rights Watch. 1998. ‘Justice in the Balance: Recommendations for an Independent and Effective Criminal Court’. Available at: http://www.hrw.org/reports98/icc/. [Accessed: 3 April 2016]

Imoedemhe, O. 2015. ‘Unpacking the tension between the African Union and the International Criminal Court: the way forward’ African Journal of International and Comparative Law 74, pp.76-80

International Criminal Court. 2016. ‘Situations under investigation’, International Criminal Court. [Online] Available at: www.icc-cpi.int/en_menus/icc/Pages/default.aspx. [Accessed: 8 April 2016]

Kersten, M. 2014. ‘Did the Senate just open the U.S. up to ICC prosecution?’. The Washington Post. 10 December. Available at: www.washingtonpost.com/blogs/monkey-cage/wp/2014/12/10/did-the-senate-just-open-the-us-up-to-icc-prosecution. [Accessed: 8 April 2016]

Kezio-Musoke, D. 2013. ‘Rwanda: Kagame Tells Why He Is Against ICC Charging Bashir’, Daily Nation. 3 August. Available at: http://allafrica.com/stories/200808120157.html. [Accessed: 6 April 2016]

Lee, S. R. 1999. ‘The Rome Conference and Its Contribution to International Law in Lee, R. S. (ed.), The International Criminal Court: The Making of the Rome Statute. The Hague: Kluwer Law International, pp.1-40

Macedo, S. 2006. Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes Under International Law (ed.). Philadelphia: University of Pennsylvania Press

Moreno-Ocampo, L. 2008. ‘The Tenth Anniversary of the ICC and Challenges for the Future: Implementing the Law’, Speech at the London School of Economics. 8 October. Available at: www.lse.ac.uk/assets/richmedia/channels/publicLecturesAndEvents/transcripts20081007_LuisMorenoOcampo_tr.pdf/. [Accessed: 5 April 2016]

Moreno-Ocampo, L. 2010. ‘Pursuing International Justice: A Conversion with Luis Moreno-Ocampo’, Council on Foreign Relations in Washington, D.C. 4 February. Available at: www.cfr.org/human-rights/purusing-international-justice-conversation-luis-moreno-ocampo/p34702. [Accessed: 8 April 2016]

Mudukuti, A. 2016. ‘South Africa abandoning the International Criminal Court? The build up and potential consequences’. European Human Rights Law Review 1, pp.1-10

Nouwen, S and Werner, W. 2010. ‘Doing Justice to the Political: The International Criminal Court in Uganda and Sudan’. European Journal of International Law, 21(4), pp.941-65

Nsereko, D. 2013. ‘The ICC and complementarity in principle’. Leiden Journal of International Law, 427

Peterson, J. 2007. ‘Unpacking Show Trials: Situating the Trial of Saddam Hussein’. Harvard International Law Journal, 48, p. 257

Prosecutor v Joseph Kony and Vincent Otti [Warrant of Arrest issued on 8 July 2005], Case No. ICC-02/04-01/05

Prosecutor v Omar Hassan Ahmad Al Bashir [Warrant of Arrest issued on 4 March 2009], Case No. ICC-02/05-01/09

Prosecutor v Saif Al-Islam Gaddafi [Warrant of Arrest issued on 27 June 2011], Case No. 01/11-01/11

Prosecutor v Thomas Lubanga Dyilo [14 March 2012], Case No. ICC-01/04-01/06

Prosecutor v Uhuru Muigai Kenyatta [13 March 2015], Case No. ICC-01/09-02/11

Prosecutor v Laurent Gbagbo and Charles Blé Goudé [10 November 2015], Case No. ICC-02/11-01/15

Prosecutor v William Samoei Ruto and Joshua Arap Sang [5 April 2016], Case No. ICC-01/09-01/11

Radio Radicale.It. 1999. Press Release L/2908 ‘Kofi Annan’s Speech before the Prepcom’ 17 February. Available at: www.radioradicale.it/exagora/icc-kofi-annans-speech-before-prepcom. [Accessed: 9 April 2016]

Raz, J. 1994. Ethics in the Public Domain: Essays in the Morality of Law and Politics. Oxford: Oxford University Press

Rhea, M. H. 2012. The United States and International Criminal Tribunals Cambridge: Intersentia

Roach, C. S. 2012. ‘Should the International Criminal Court impose Justice?’ Yale Journal of International Affairs, 66

Robertson, G. 2002. Crimes Against Humanity: The Struggle for Global Justice London: Penguin

Robinson, D. 2015. ‘Inescapable dyads: why the International Criminal Court cannot win,’ Leiden Journal of International Law, 323

Rome Statute of the International Criminal Court, opened for signature on 17 July 1998, 2187 UNTS 90, (entered into force 1 July 2002)

Sands, P. 2003. From Nuremberg to The Hague: The Future of International Criminal Justice. Cambridge: Cambridge University Press

Shklar, N. J. 1964. Legalism: Law, Morals, and Political Trials. London: Harvard University Press

Smith, P. 2009. ‘Interview: Luis Moreno-Ocampo’, The Africa Report. 21 September. Available at: www.theafricareport.com/News-Analysis/interview-luis-moreno-ocampo-icc-prosecutor.html. [Accessed: 8 April 2016]

Stephen, C. 2012. ‘International criminal law: wielding the sword of universal criminal justice?’, International and Comparative Law Quarterly, 55

Stephen, H. 2003. Public International Law. Sydney: LexisNexis Butterworth

Trachsler, D. 2013. ‘The ICC: High Expectations, Ambiguous Record’. CSS Analysis in Security Policy, ETH Zurich, No. 130.

United Nations. 1998. Press Release L/2890, ‘Secretary-General Says Establishment of International Criminal Court Is Major Step In March Towards Universal Human Rights, Rule of Law’, 20 July. Available at: www.un.org/press/en/1998/19980720.12890.html. [Accessed: 6 April 2016]

UN Security Council Resolution 1422, 2002. UN Doc. S/RES/1422 (2 July 2002).

© Copyright Leeds 2017