Wednesday, August 19, 2020

The Blame Game: The ICC, UNSC or States Parties?

Over the last couple of years, the International Criminal Court (ICC) has been criticised as biased, selective, and has been queried about its targeting of only weaker States, such as African States. The purpose of this blog is to address the question viz. what are some of the current problems or tensions underlying the failure of states parties to cooperate with the ICC in good faith as enunciated and expected under the Rome Statute? This blog piece starts by assessing the reasons behind the failure or the unwillingness of some States parties to cooperate with the Court as stipulated in the Rome Statute. Furthermore, part of this analysis will explore the tension between the Court and African States regarding cooperation.  

The Court has often reiterated that it is a judicial entity and not a political body in any sense. For instance, in 2006, former president, Philippe Kirsch, of the Court publicly stated that "there is not a shred of evidence after three-and-a-half years that the Court has done anything political. The Court is operating purely judicially". However, some argue that in the context of the political concept of a friend-enemy dichotomy, the Court has used this dichotomy as a weapon in political struggles. The Court has jurisdiction over the most serious crimes of concern, and as such the Court labels some suspects as the enemies of mankind, whilst others who cooperate with the ICC they are portrayed as the friend of humankind. Furthermore, the Court has provided the opportunity to label certain political actors as not merely its enemies but as the abusers of universal norms and the enemies of mankind.

Moreover, one of the major criticisms has also been about the selectivity of situations to prosecute. Some scholars argue that most of the cases investigated by the Court has been selected by the prosecutor based on his or her discretionary power, except the situations of the western region of Sudan-Darfur, and self-referral situations, such as Uganda, Mali, and Congo as well as Central Africa. Since the Prosecutor does not have the obligation to accept a self-referral, it is equivalent to the situation selected by prosecutor, as in the case of  Kenya. The issue of independence of the prosecutor has been questioned, due to the fact that that the Office of the Prosecutor has mainly focused on African cases and overlooks other international crimes committed in different parts of the world such as Israel, Iraq or Afghanistan and others.

In this regard it would be reasonable to distinguish between the Court as an independent entity and the prosecutor as an individual with their own ambitions and perspectives. One might argue that the prosecution has the discretionary power, and thus, such power could be politically misused. In effect, the exercise of the prosecutorial discretionary power might often be associated with political considerations. However, it does not change the fact that there remains a distinction between the Court as an entity and individuals in persons. For instance, the former AU commission chairperson Jean Ping coined this well when he said, “frankly speaking, we are not against the ICC. What we are against is Ocampo’s justice”.

It is evident that there is a moral ambivalence in international politics and the Court is not an exception in this regard. Behind the creation of the Court, there have been genuine forces tirelessly working and hoping for a just and more balanced world. Furthermore, politicians are the same whether Europeans or Africans; they may cooperate with the Court whenever it serves their interests and similarly can turn against the Court when it proves to be not in their favour. For instance, one may think of the decades of work that has gone into the establishment of the International Law Commission, the advocacy efforts NGOs in support of the Court, and the intellectual legal debate that resulted in the Rome Statute. There is no doubt that the content of the Statute is one of the greatest achievements in international legal history.

In conclusion, although criticisms against the Court are important, it should be borne in mind that the Court is not operating in isolation. The Court significantly impacts the field of international law and itself is impacted by the failure of the international community particularly states to cooperate with it in every instance. For this reason, the lack of enforcement mechanisms is something that the whole international legal order struggles with. The possibility of armed conflicts ending in the near future seems remote, and if history teaches us one lesson it is that at the end of every armed conflict the international community is either left powerless and thus seemingly  indifferent. It is imperative that the deterrent effect of the ICC is not diminished or downplayed in order for justice to prevail.

Guest Post by Mohammed Elgizoly Adam.  Adam holds a Masters (LL.M) in Public International Law from Utrecht University. His experience includes working in the development sector in Darfur and Khartoum as well as working as a journalist for Free Press Unlimited (Radio Dabanga) in The Netherlands.



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