FIVE TOP CHALLENGES OF ICC
The Rome Statute treaty which established the International Criminal Court is regarded by many international criminal lawyers and also those who work in international criminal justice field as the most important treaty after the chart of founding UN in San Francesco.
The Rome Statute contains four types of crimes as following: genocide, crimes against humanity, war crimes and of the crime of aggression. This comprehensive codification is based on the free and voluntary consent of the international community. The ICC is the first permanent court of its kind. Likewise, this court has principle of law.
« equality before the law, equal law for all” and is not imposed by powerful states, or by the Security Council member. However ICC is now facing several challenging and it has been criticized by many organizations, scholars and even states, so I will elaborate these critiques extensively in this essay.
Firstly, the question of its legitimacy. ICC and its prosecutor has always faced criticism because of its selectivity of situations and cases , which is the majority of these situations have arisen from self -referrals or where non-member States such Ivory coast . In the meantime, while two situations were referred to the Prosecutor by the UN Security Council such as Sudan and Libya. However, there is a ready answer to the complaint, that the Court is only investigating and prosecuting African cases. Only one Kenya was initiated by the Prosecutor, and that after the Court ruled that domestic action by the Kenyan authorities was insufficient.
One the other hand, Some argue that the Court‟s legitimacy will be established only on the day the Prosecutor opens investigations for the rest of world. In addition, the majority of “preliminary examinations”, currently underway are not in Africa. It must not be forgotten, as the ICC Prosecutor has said, that the victims of the crimes she is investigating and prosecuting are also African – and number into the tens of thousands.
The Court‟s global standing is undoubtedly undermined by the fact that only two of the permanent members of the UN Security Council are members of the Court, yet the Security Council can refer situations to the Prosecutor, with no effective follow-up. As we saw in the case of Syria, members of the Security Council can veto a referral even where horrific crimes are taking place. The only answer is that every State in the world must become a member of the ICC. (Iain Macleod is the Legal Adviser of the UK Foreign and Commonwealth Office. Shehzad Charania is the Legal Adviser of the British Embassy to the Netherlands. NOVEMBER 16TH 2015 Article name Three challenges for the International Criminal Court )Secondly, a chief disadvantage of the Court is the significant provision of protection to witnesses and victims. Far more so than in central Europe, witnesses and victims from African “situation States”, such as Kenya, Uganda or Darfur/Sudan, who are prepared to testify are often at great risk and face concrete threats because the lack of protection guarantees for the witness and also the victims. And this is where the problems start: it seems that procedural rules allow witnesses and victims to be made anonymous through “redactions” – i.e. the blacking out of details, especially their names – and to make them unrecognizable in submissions and witness statements, however, this also fundamentally might threaten the rights of the accused to a fair trial. In general, the system and excessive practice of thousands of such “redactions” has, in my view become, a huge problem both for the Prosecutor‟s staff as for Chambers. But it is difficult, so difficult to change this, in particular if tactical advantages can be gained there from. in order to obtain the evidence required, it has to conduct the necessary, complex investigations in regions thousands of kilometers away from The Hague, regions where travel is difficult, the security situation is fragile and it may be difficult to collect the evidence.
Thirdly, many international crimes have been committed through armed conflicts as a result of orders top commanders and political officials ,who usually make their great effort to conceal their criminal acts. In pursuing its task, therefore, the ICC has been porn to the polarizations between the political, criminal and human rights viewpoints. As a result, the function of the Court will often continue to be hampered by adverse political intervention ,in particular, in the Darfur situation. Already the so‐called self‐referrals of some African States Parties as Uganda and Democratic Republic of Congo have led to comments that leaders of those States exploited the ICC
against political opponents.( Key note by H.E. Judge Dr. jur. h. c. Hans‐Peter Kaul Second Vice‐President of the International Criminal Court On 8 August 2011 Salzburg Law School on International Criminal Law /Salzburg, Austria, 7‐19 August 2011).
Fourthly, Undoubtedly, no one can argue that ICC has no force power, in other means, The Court lacks executive powers and a police force . Consequently , it is completely dependent on State Parties. Yet state Parties have an obligation to cooperate with the Court. Under Article 86,“States shall in accordance with the provisions of the Statute, cooperate fully with the provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.” One other hand, The Court also relies on non- State Parties, interregional bodies and international organizations to apprehend and surrender indicted persons and assist it in its investigations and prosecutions. However, some State Parties and interregional organizations pay lip service to this provision. For example, Kenya and Mali which State Parties to the Rome Statute failed to cooperate with the Court in apprehending and arresting Al-Basher after the Court issued his arrest warrants.
When the Court issued decisions reminding these States about their obligation to cooperate with the Court, they were still not forthcoming with this cooperation. The African Union, a regional organization made of African member States, which was initially receptive to the Court changed its tune when the arrest warrants for Omar AlBashir were issued and discouraged its member states from cooperating with the Court.
This creates a serious problem for the Court because it needs the cooperation of the African Union in order to uphold perpetrators especially considering the fact that currently most of the situations and cases are in Africa. ( 73International Commission of Jurists, Kenya Section, Omar Al-Bashir’s Visits to Kenya and Chad , available at ttp://www.icj-kenya.org/index.php/more-news/324-omar-al-bashirs-vists-to-kenya-and-chad.74 Institute for Security Studies, AU Decision in Sirte Discourages ICC Supporters (July 14 2009), available at http://www.issafrica.org/iss-today/aus-decision-in-sirte-discourages-icc-supporters )Lastly, one of the most challenge might face ICC is in the crime of aggression which usually is masterminded by leaders of certain states, and from this stand, the question of impunity has raised in some international judicial platform.
According to customary international law , that there are two type of impunities ,which are functional and personal impunities. Functional immunity means that whoever acts in the interest of the state should not be held accountable for state actions. However, the question is if this is still valid in the case of serious international crimes. In the case of Pinochet, a national court reached the conclusion that immunity was not a valid argument since it was a matter of very serious offenses such as torture .Personal immunity means that during the time a state official such as the president, foreign minister or minister of defense holds his office he cannot be prosecuted. After leaving office immunity for the person in question is no longer granted for serious international crimes. (Crawford, James, Brownlies Principles of Public International Law, 8th edition, Oxford University Press, 2012. Wrange, Aggressionsbrottet och den Internationella Brottmålsdomstolen. McDougal, The Crime of Aggression under the Rome Statute of the International Criminal Court)