The International Criminal Court: an effective legal instrument?

Hannah Finch 

The post Cold War period was symbolised by a new world order which had profound effects on both the social and political realms. Ideological conflict of the bipolar Cold War era was replaced with ever increasing intrastate conflict which ultimately led to significant human rights violations, notably those of Rwanda and Yugoslavia. The creation of an International Criminal Court1 was significant as it demonstrated that the international community had recognised the importance of bringing to justice those who commit such atrocities as crimes of aggression, war crimes, crimes against humanity and genocide and considered, like Kofi Annan that, „[i]n the prospect of an ICC lies the promise of universal justice‟ (Driscoll, Zompetti & Zompetti, 2004:25). While the concept behind the ICC to assure universal justice and fight against impunity is unquestionably necessary in this time of extreme violence, whether or not the ICC can be considered an „effective legal instrument‟ is debateable.

During this discussion I will examine certain factors that inhibit the ICC from acting effectively as the first permanent international criminal court. I will begin by examining the relationship between the political and legal spheres focussing particularly on the affiliation between the ICC and the United Nations Security Council2 and the importance of political will and support from the international community in assuring the effectiveness of the ICC. I will then analyse the significance of Article 124 of the Rome Statute suggesting that this article, although not currently in use, severely damages the credibility of the ICC and puts its principle aims and objectives in significant danger. To conclude this paper I will examine the significance of the ICC‟s involvement in Libya suggesting that while this is clearly a sign of

1 From now on the International Criminal Court will be referred to as the ICC 2 From now on the United Nations Security Council will be referred to as the UNSC

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progress there is still a long way to go before we can claim that the ICC is an effective legal instrument.

Michael Savage discusses the modern phenomenon that sees the legalisation of politics and the politicisation of law and states that, „[t]he relationship between international politics and international law is being renegotiated‟ (2010:168). He suggests that the fact that these two realms are becoming increasingly interrelated is not necessarily a positive evolution and in fact significantly hinders the application of international law.

The conflict of interest that exists between politics and law is particularly evident if we consider the relationship between the UNSC and the ICC. The UNSC is heavily present in the Rome Statue and while it has been claimed that, „the function of the ICC [...] is ultimately related to two basic purposes of the UN: the maintenance of international peace and security and the promotion of respect for human rights for all without distinction‟ (Yañez-Barnuevo & Escobar Hernández, 2003:42), there are however frequent conflicts of interest between these two bodies. The clashes that manifest themselves between the UNSC and the ICC often reveal the UNSC as the dominant figure in this hierarchy of law and politics, and this is clearly demonstrated in Article 16 of the Statute of Rome where the power of the UNSC and the political realm is irrefutable as it stipulates that, „[n]o investigation or prosecution may be commenced or proceeded with under this statute for a period of twelve months after the Security Council [...] has requested the Court to that effect.3‟ This clearly demonstrates the power of the UNSC and politics to overrule the ICC and the law. The power of the UNSC to hinder the effectiveness of the ICC cannot be denied and the veto is the ultimate symbol of this power. The general consensus is that those nations who hold the power to employ a veto are consequently protected from prosecution from the ICC, (Syracuse, 1997).

3 See Annexes for full text of Article 16 of the Rome Statute 2

Hannah Finch World Politics: Sciences Po

There are also those who claim that the ICC and the UNSC have conflicting interests as one body seeks justice and the other seeks peace. The situation in Africa has been used as an example in the article by Arieff, Margesson, Browne and Weed as they state that, „by prosecuting participants in ongoing or recently settled conflicts the Court risks prolonging violence or endangering fragile peace processes‟ (2011:31). This idea that justice and peace are ultimately conflicting goals is one that I do not share as I would suggest that there can be no long lasting peace without justice.

The effectiveness of the ICC is challenged by the fact that Russia, India, China and the United States are not parties to the Statute of Rome. This emphasises the risk of non cooperation between the world‟s most powerful players and the ICC, sending the negative message to the international community that while a general consensus agreed to create an ICC, world leaders are ultimately „not prepared to make the political concessions necessary,‟ (Syracuse, 1997:189) to guarantee the effectiveness of this legal instrument. Political will and support of the international community is vital to the success and effectiveness of the ICC and, „[t]he relationship with national prosecutions and courts [is] a central element in the success of the ICC‟ (McGoldrick, Rowe and Donnelly, 2004:468). Africa has been a particularly forthcoming and cooperative member of the ICC and the widespread cooperation within the African continent is significant and crucial to the effectiveness of the ICC. Recently however relations have been strained and hostilities between the ICC and the African Union have been growing. It has been suggested that this hostility stems from the impression that the ICC is consciously encroaching on African sovereignty, (Arieff, Margesson, Browne & Weed, 2011) as President Paul Kagame of Rwanda has defined the ICC as „a form of “imperialism” that seeks to undermine [...] African countries‟ (Arieff, Margesson, Browne & Weed, 2011:26). The fact that the large majority of cases that have

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been dealt with by the ICC have concerned African states and their leaders is undeniable and so it is of utmost importance that the ICC acts with precaution and demonstrates that it is fulfilling its responsibility to ensure justice internationally where needed.

The loyalty of states to the ICC is seemingly a delicate issue. Article 124 was conceived with the idea of drawing more states to sign and ratify the Statute of Rome as it specifies that „a State, on becoming a party to this Statute, may declare that, for a period of seven years after the entry into force of this Statute for the State concerned, it does not accept the jurisdiction of the Court.4‟ The concept was that by providing this option, more newly democratic states would agree to becoming a member of the ICC; however this article is highly flawed as it ultimately allows those who wish, to violate the norms that are fundamental to the ICC.

While there has recently been significant progress, namely the ICC‟s role in Libya that sent „a strong signal [...] that the international community will not tolerate the vicious repression of peaceful protesters‟ (Human Rights Watch) and demonstrated that the ICC is a legitimate body in the eyes of the international community, it is clear that the ICC has some significant obstacles that it must overcome before it can be considered a truly effective legal instrument. As Blattmann and Bowman reveal, „[t]o be wholly effective, it is important to continue efforts to ensure that the Court brings justice as fairly and efficiently as possible, which can only be achieved with the full cooperation of the international community‟ (2008:730). Just as global civil society was integral to the creation of the Statute of Rome, its role to ensure the future of the ICC as an effective legal instrument must not be underestimated. It is ultimately through the power of global civil society that the cooperation and true loyalty of the international community will eventually be harnessed, consequently rendering the ICC a more effective legal instrument.

4 See Annexes for full text of Article 124 of the Rome Statute 4

Hannah Finch World Politics: Sciences Po

Bibliography Arieff, Margesson, Browne, Weed, (2011), ICC Cases in Africa: Status and Policy

Issues, http://www.fas.org/sgp/crs/row/RL34665.pdf Blattmann, René, Bowman, Kïrsten (2008), Achievements and Problems of the International Criminal Court: A View From Within, J Int Criminal Justice 6 (4): pp.711- 730, Oxford University Press Driscoll, William, Zompetti, Joseph P Zompetti Suzette (2004), The international criminal court, global politics and the quest for justice, International Debate Education Association

International Criminal Court, ICC at a glance, http://www.icc- cpi.int/menus/icc/about%20the%20court/icc%20at%20a%20glance/icc%20at%20a%20glanc e?lan=en-GB

McGoldrick, Rowe, Donnelly, (2004), The permanent International Criminal Court: legal and policy issues, Hart Publishing

Prevent Genocide International, ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, http://www.preventgenocide.org/law/icc/statute/part-a.htm#3

Savage, Michael (2010), Legalising politics and politicising law: The changing relationship between sovereignty and international law, in Politics without Sovereignty A critique of Contemporary International Relations, by Bickerton, Christopher J, Cunliffe, Philip, Gourevitch, Alexander,

Human Rights Watch, (2011), UN: Security Council Refers Libya to ICC, Resolution Aimed

at Stemming Violence and Bringing Justice, http://www.hrw.org/en/news/2011/02/27/un-

security-council-refers-libya-icc

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Syracuse, J. Int‟l L. & Com. (1997), The Proposed International Criminal Court: A Commentary on the Legal and Political debates regarding jurisdiction that threaten the establishment of an effective court Vol. 24:177

Yañez-Barnuevo, Juan Antonio, Escobar Hernández, Concepcion, (2003), The International Criminal Court and the United Nations: a complex and vital relationship, in Essays on the Rome Statute of the International Criminal Court, Volume 2, ed. Lattanzi, Flavia & Schabas William

Annexes The Rome Statute: Article 124: Transitional Provision

Notwithstanding article 12, paragraphs 1 and 2, a State, on becoming a party to this Statute, may declare that, for a period of seven years after the entry into force of this Statute for the State concerned, it does not accept the jurisdiction of the Court with respect to the category of crimes referred to in article 8 when a crime is alleged to have been committed by its nationals or on its territory. A declaration under this article may be withdrawn at any time. The provisions of this article shall be reviewed at the Review Conference convened in accordance with article 123, paragraph 1.

Article 16: Deferral of investigation or prosecution

No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.

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