Why We May Need To Do Away With The ICC – OpEd

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By Ashina Mtsumi

Despite accepting that we do not live in a perfect world, the realities of just how depraved the world can get are profoundly disturbing. The fact is: even with the benefit of hindsight and having well established laws for the protection of the sanctity of life and dignity, there are people in the world who treat them like mere inconveniences to be swatted away in the pursuit of power or misguided vendettas.

The statistics for the number of people murdered, displaced, tortured and raped in the days leading up to and during conflicts continues to be a sobering reminder that we need to have adequate structures to prosecute perpetrators of international crimes while ensuring justice for the victims.

It would be unconscionable to allow this to go on unabated; and it would be equally unacceptable for the international community to remain silent in the face of such horrors; more so in this day and age, where it is possible for the entire world to get very up close and candid with the events in a remote area as long as at least one person there has a smart phone.

The best way for the international community to take a definitive stand against the heinous crimes in some countries is to follow through with the pursuit of justice for the victims who cannot pursue it for themselves, for whatever reason. The significance of the ICC therefore remains. We need an international body to prosecute those suspected of culpability. If this is the case, we then we must rally together to make the ICC more effective.

Shutting down the ICC would be a very retrogressive admission of defeat; dictators everywhere will dance on its grave. Instead, serious efforts need to be made to improve the efficacy and efficiency of the ICC. Cases should not take up to six years to be decided as was seen in the Thomas Lubaga case.[1] Cases need to be handled expeditiously.

However, for the world to collectively move closer to realising the promise of universal justice, there must be a concerted effort, a multifaceted approach towards this end. Municipal justice systems must be strengthened and regional self-regulation encouraged, even before the ICC is reinforced.

Importance of the Municipal Justice System

International Law cannot function without the support of Municipal Law. Article 17 of the Rome Statute of the ICC governs admissibility of cases before the Court. Cases are only correctly before the Court if the State is “unwilling or unable genuinely to carry out the investigation or prosecution.” This embodies the principle of complementarity which is based on respect for the primary jurisdiction of States and on considerations of efficiency and effectiveness.[2] In order to strengthen municipal justice systems the local judicial systems and police service will have to be developed.

Some scholars are of the opinion that the ICC should be shut down completely and the funds be redirected to strengthening local courts.[3] There is some merit to this suggestion. If local courts can be effective then cases would never get to the ICC anyway, by virtue of Article 17 of the Rome Statute and the Principle of Complementarity. Issues of sovereignty and capacity to enforce the courts orders would never arise. The courts would have ready access to the evidence and witnesses. Justice would be served swiftly for the victims. For this to become a reality, independence of the judiciary is essential, as is adequate capacity and motivation. Corruption must be dealt with comprehensively and conclusively. The rule of law must be upheld.

Crucial for the effectiveness of the pursuit of justice is the role played by the police service. Investigation, handling evidence, getting witnesses, witness protection, enforcement of court orders all fall within the purview of the police service, and all are crucial for the ends of justice. The police must be independent and free of political interference. With this comes the need for capacity to carry out thorough investigations and apprehend suspects without fear or favour.

Regional Self-Regulation

Countries within a region should be able to ensure respect for rule of law in all member states. For example, the East African states should intervene and not allow the crisis in Burundi to escalate to the level of international crimes. For this to be legitimate, the countries will need to have the moral authority to act as checks for each other. They need to have a spotless human rights record too. Countries in the same region should be willing to arrest and try persons within their jurisdiction.

Admittedly, this has not worked very well so far, but this may be because African states are uniting against what is perceived as a greater common enemy – the ICC. When they are enforcing their own standards of justice we might see a greater respect for human rights and the rule of law as Africa instead unites against impunity and works together to end it.

In fact, plans have been underway to establish an African criminal court through the Draft Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights.[4] However, questions have been raised over the feasibility of this court, considering the AU is already struggling financially, will it really have the capacity to establish and run a criminal court and achieve justice. How will this court coordinate with the ICC? Concern has been raised that the court may only end up slowing down the wheels of justice and ‘frustrat[ing] efforts at accountability.’[5]

The crimes under the jurisdiction of the International Criminal Court are crimes against all of humanity, not because against those individuals alone the crime would not be significant enough, but because as a community we cannot condone such atrocities. Local and regional capacity to handle international crimes should definitely be bolstered. Nevertheless this does not negate the utility and necessity of the ICC, albeit a smaller, more affordable more effective version.

[1] http://www.icc-cpi.int/en_menus/icc/situations%20and%20cases/situations/situation%20icc%200104/related%20cases/icc%200104%200106/pages/democratic%20republic%20of%20the%20congo.aspx
[2]‘The Principle of Complementarity in Practice’, Informal Expert Paper, ICC-OTP, 2003, at 3.
[3] Dave Davenport, International Criminal Court: 12 Years, $1 Billion, 2 Convictions, ‘Forbes’http://www.forbes.com/sites/daviddavenport/2014/03/12/international-criminal-court-12-years-1-billion-2-convictions-2/
[4] https://www.iccnow.org/documents/African_Court_Protocol_-_July_2014.pdf
[5]Analysis: How close is an African criminal court? 13 June 2012, Integrated Regional Information Networks, http://www.irinnews.org/report/95633/analysis-how-close-is-an-african-criminal-court

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A38

The A38 Foundation is an initiative to further international dialogue and scholarship in Public International Law. It is named so after Article 38, under the Statute of the International Court of Justice, which talks about the sources of Law. A38 runs ad hoc consultancies and research programs, while also maintaining an open access Quarterly Online Journal.

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