Third, what is presented as a tension might not always be a ‘negative’ tension. This fear of political manipulation appears to be a … The court is currently investigating 11 situations: 10 of which are in Africa. Criticisms generally come from two directions. It has become topical to say that the International Criminal Court (ICC) is in crisis. 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. There is first a need for a certain sense of modesty. Taking forward the UNâs fight against racism . Improvements to the court’s effectiveness and credibility may be possible without amending the treaty incorporating the ICC Statute. 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. Cumbersome procedures, ineffective prosecutions against high-level alleged perpetrators, and weak internal management are among current criticisms of the ICC. And the majority underway are not in Africa. 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. Political violence in many ICC cases has complex causes and origins. His specific criticisms are as follows: Part I. In the case of Cote dâIvoire, it accepted the Courtâs ad hoc jurisdiction. Preliminary examinations of the Court have turned into one of the most significant instruments of Court practice. While these procedures are taking place, which may take years, the accused will be under some restraint and certainly under grave public shadow. We will only use your personal information to register you for OUPblog articles. Second, it is becoming clear that whatever international justice institutions do, the ICC is likely to disappoint one constituency or another. Take the debates on ‘peace and justice’ for instance. 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. 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. Attacking the ICC takes the attention away from where it should be focused: on states themselves. Where they are absent, such as in Syria or North Korea, their absence is deplored. Second, the docket of the ICC has been full and rich in terms of crisis situations. Its criticisms, however, are undeniably grounded in fact. The investi… Required fields are marked *. These numbers have sparked backlash against the court, with accusations that it only investigates and prosecutes Africans. Fatou Bensouda: I am glad that they are praising the ICC because I think the ICC is doing phenomenal work. Yet these criticisms miss a very important point. Concerns have been raised in relation to the expeditiousness and fairness of proceedings and the treatment of victims (participation, reparation). However, many see the ICC as a failure because of the high inactivity and lack of results they have produced. Others including South Africa and Gambia have expressed intent to quit as members of the court: Gambia declared its move to withdraw and then rejoined, while South Africaâs position is unclear and is currently in the hands of a court case in SA. 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. Judge Chile Eboe-Osuji on US attacks against the ICC for investigating alleged war crimes in Afghanistan: 'Do you want me to tell you …. Even before its existence, the Court has been for criticized for its selectivity, statutory limitations, and potential overreach. Meanwhile, impunity still reigns despite equally shocking violations of international law occurring in countries like Myanmar and Cameroon, Yemen and Syria. 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. The Court is fallible, like any institution. Over its entire history, the ICC has successfully convicted only two people. He is the author of The Law and Practice of the International Criminal Court and The Law and Practice of International Territorial Administration: Versailles to Iraq and Beyond. I would like revisit some of these critiques. The colonial legacy of the right to self-determination . 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. It furthers the University's objective of excellence in research, scholarship, and education by publishing worldwide. 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. In that sense, ICC practice may be emblematic of the transformation of international law, which develops increasingly bottom-up, rather than top-down. 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. In environments such as Ukraine, Palestine or Syria, there is a risk that the ICC turns into an instrument of lawfare. 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 … On 11 June 2020 the Government of the United States announced new measures against the International Criminal Court (ICC). How does the International Criminal Court answer criticisms that it is illegitimate? The âAfrican biasâ of the ICC is therefore in many cases a symptom of African enthusiasm for the ICC. While political expediency remains lâordre du jour, we have seen forward strides in international justice. 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. 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. This is unsatisfactory on the long term, and will need to be looked in the future. Third, there is a certain degree of duplication in terms of procedures. 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. This trend may be shifting. It might be counterproductive to present it as a source of salvation. Or should it adopt an approach in which it goes deeper into specific conflict situations? 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. As Iain Macleod and Shehzad Charania rightly point out in their post, the ICC faces serious challenges in relation to credibility, legitimacy, and expectations. Save my name, email, and website in this browser for the next time I comment. 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.” Three have declared their countries’ intention to cease being ICC members. While there are justified concerns over the impact of the global Court in Africa, arguments about neo-colonialism exaggerate the strength of the ICC. The Universal Declaration of Human Rights at 70 and Global Power . This applies in particular in relation to pre-trial and trial. . 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. But it is also key to critically examine critiques of the ICC. Rather, the ICC’s success is determined primarily by its effect on the world. Criticisms. Part II. 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. CC BY 2.0 via Flickr. Kenyatta accuses the tribunal of racism. Thus, of the 6 persons in custody (as of September 2018) 2 are state actors and 4 are non-state actors. 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. Photo by Roman Boed. Photo: Laurel Hart/Ntarama Genocide Memorial, Rwanda. And states that have not joined are protected by veto-wielding powers at the UN Security Council. Sometime last year, three African countries—Burundi, the Gambia and South Africa—signalled their intention to leave the International Criminal Court (ICC). Yet many stronger states that use violence against civilians have protected themselves from the courtâs jurisdiction. Criticisms of the court include: Michael Mandel, William Blum and others accused the court of having a pro-NATO bias due to its refusal to prosecute NATO officials and politicians for war crimes. 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. Many criticisms of International Criminal Court have validity Opinion: Avoidance of difficult cases creates risk of perceived double standards 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. It has gained increasing acceptance that has strengthened its guardianship of criminal justice. This implies unfair selectivity at best, and smacks of neocolonialism at worst. But it also has certain risks and drawbacks. Letâs not forget the ICC has come a long way. 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. In some respects, less may be more. 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. First is the issue of credibility. It seems that the many of the core issues are developed through practices, policies, and procedural decisions that aren’t in the limelight. But they mark only a tiny fraction of Court activity. The ICC was constructed with the idealistic goal to end the presumption of impunity for the powerful. Featured image: Windows: International Criminal Court, The Hague. So rather than a weapon of the weak against the powerful, the court has mostly been used as a weapon of the weak (fragile states) against the weaker (non-state actors). But without the ICC, would there not be a piece of the puzzle missing (e.g., Colombia)? The African Union (AU), moreover, has been criticising the ICC for years, and its arguments deserve attention. 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. 89 of the 139 other UN member states are. I deeply regret measures targeting Court officials, staff and their families. Another criticism of the ICC refers to the fact that the ICC is predominately engaged with situations in African countries. In the ICC context, there is sometimes a drive for emancipation, rather than structural openness. The ICTY alone has seen ninety individuals sentenced for genocide, crimes against humanity or other crimes. Some believe the court has too little authority, making it inefficient and ineffective at putting away war criminals. Some ICC intervention have been perceived as stifling domestic or local responses, or creating local inequalities (e.g., funding). This principle of national prosecution applies regardless of the outcome of national proceedings. It is uncertain if States are willing to use their military or economic force to extricate an oppressive … Review of âThe Oxford Handbook on the United Nationsâ. Only in two of the African cases now open - Kenya and Burundi - has the ICC actually exercised its right to start investigations. The Statute is full of ambiguities and dilemmas that cannot be solved in the abstract. ICC practice is characterized by overreach and under-reach. The ICC’s success is not determined by how many people it indicts, how much it costs, or the outcome of high-profile cases. As with United Nations criticisms as a whole, many of these criticisms refer more to the general authority assigned to the body by member states through its charter than to specific problems with the composition of judges or their rulings. 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. 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. politically self-serving African criticisms of the ICC by powerful elites motivated by collective protectionism, some of whom are the very leaders responsible for the crimes in the first place. … More fundamentally, there is the existential question: How can the ICC leave a lasting impact although it has to be selective by definition? Indeed in its two decades of operation the court has mounted investigations in 25 countries, 12 have been African. A few better prepared cases might leave a larger imprint. For some, the ICC has stepped from crisis to crisis. The use of ICC intervention as political or hypothetical argument plays an important role in institutional politics and peace negotiations. A common criticism of the ICC by Africans is that the court is subject to political manipulation. Historically, much focus has been placed on ‘grand’ decisions in international criminal law. Can a convention eliminate racial discrimination? So, is the court biased or are we asking the wrong questions? The idea that the court turns a blind eye to perpetrators in other regions has gained traction across the African continent. A balanced assessment of the Court requires a fresh look at fair and unfair critique. The ICC’s definition and interpretation of gender has a direct impact on case selection and jurisprudence and was controversially debated (Oosterveld 2005). In practice, critiques have arisen in relation to almost each situation: impartiality and peace and justice dilemmas in Uganda, evidentiary and performance problems in relation to the DRC (e.g., provider confidentiality, intermediaries), enforcement dilemmas in Darfur, politicization and sustainability issues in Libya, inaction critiques in relation to Colombia, and evidence and cooperation problems in Kenya. With international support and backing, the ICC can continue to set a precedent; that atrocity crimes are unacceptable and justice will be dealt. The ICC has been subject to criticisms since its establishment. The ICC is also overseeing 9 preliminary examinations âprecursors to potential investigations. He has published articles on international criminal law and transitional justice in leading international journals and edited several collections of essays in the field. These measures are unprecedented. Similar considerations apply in relation to the role of victims. Others think it has too 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. One of the most fundamental criticisms of the ICC is that it would apply international criminal law selectively and focus on Africa. Where they act, they may criticized for interfering with political priorities, such as negotiations or political settlements. The Court struggles to meet some of the expectations that it faces. 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. Your email address will not be published. But international criminal justice should be weary of the ‘export of global justice’. Sometimes, different Chambers seem to re-invent the wheel. 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. Laurent Gbagbo is the first-ever head of state to be handed over to the ICC.Â. Carsten Stahn is Professor of International Criminal Law and Global Justice at Leiden University and Program Director of the Grotius Centre. 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). Can a convention eliminate racial discrimination? 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. The useful question to ask here would be: Why hasnât the ICC been able to exercise jurisdiction over atrocity situations outside of Africa? African governments are challenging the legitimacy of the International Criminal Court (ICC), accusing it of being biased against their continent. 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 court can receive referrals from the UN Security Council (as seen in Libya and Sudan) but it mainly operates on the principle of consent. Structurally, international criminal justice in The Hague is somewhat introverted. On 6 December 2006, the Tribunal at The Hague approved the use … ICC prosecutor Bensouda has to-date refused to act on the Palestine filing. 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. 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. The African Union’s threat to withdraw from the ICC has made such criticism an urgent issue. Fifty years of fighting for a better future . 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 main purpose of the ICC … 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. Or subscribe to articles in the subject area by email or RSS, Your email address will not be published. And ad hoc predecessors in Rwanda and the former Yugoslavia (which were established under the UN Security Councilâs authority) have helped pave the way. At the time, it was believed that the creation of a permanent judicial body would enable prosecution of those with the greatest responsibility for crimes against humanity and genocide. Intervention in ongoing conflict remains a problem for the ICC and is likely to remain a challenge in the future. Weaker states, vulnerable to violence, have opened themselves up to the courtâs jurisdiction. The destiny of the defendant might largely depend on what Chamber he or she faces. One of the challenges is to mitigate the risk that Hague justice promotes predominantly global justice, rather than regional or local justice. They undermine our common endeavor to fight impunity and to ensure accountability for mass atrocities. Some political leaders have threatened to withdraw from the court: Burundi - the first and so far only to officially start the process of withdrawing - accused the court of being âa political instrument and weapon used by the west to enslave other statesâ. 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. Ultimately some of these tensions may be ‘positive’ rather than ‘negative’ tensions. in their post, the ICC faces serious challenges, expeditiousness and fairness of proceedings, policy’ element of crimes against humanity, The Law and Practice of International Territorial Administration: Versailles to Iraq and Beyond. Looking back at the past decade, it seems that both the work of the ICC, and some of its criticisms, deserve further scrutiny.