Second, it is becoming clear that whatever international justice institutions do, the ICC is likely to disappoint one constituency or another. Criticisms. Ultimately some of these tensions may be ‘positive’ rather than ‘negative’ tensions. And states that have not joined are protected by veto-wielding powers at the UN Security Council. 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. It keeps the ICC at the heart of contemporary challenges, such as ISIS or migration dilemmas, and may enhance its expressivist function on a global scale. 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. This applies in particular in relation to pre-trial and trial. 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. More fundamentally, there is the existential question: How can the ICC leave a lasting impact although it has to be selective by definition? 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. 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. Many criticisms of International Criminal Court have validity Opinion: Avoidance of difficult cases creates risk of perceived double standards His specific criticisms are as follows: Part I. For some, the ICC has stepped from crisis to crisis. Carsten Stahn is Professor of International Criminal Law and Global Justice at Leiden University and Program Director of the Grotius Centre. The âAfrican biasâ of the ICC is therefore in many cases a symptom of African enthusiasm for the ICC. Two reasons come to light: many of these states have not joined the ICC and therefore do not recognise the courtâs jurisdiction (34 of 54 African UN member states are parties to the court. Weaker states, vulnerable to violence, have opened themselves up to the courtâs jurisdiction. Sometimes, different Chambers seem to re-invent the wheel. The ICC has been subject to criticisms since its establishment. 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. Where they act, they may criticized for interfering with political priorities, such as negotiations or political settlements. He has published articles on international criminal law and transitional justice in leading international journals and edited several collections of essays in the field. The first approach is appealing. Oxford University Press'sAcademic Insights for the Thinking World. Criticisms generally come from two directions. Strengths of the ICC Although the International Criminal Court system (ICC) that stems from the Rome statue of 1998 is relatively new, the court has had rising levels of success over the years. The investi… Save my name, email, and website in this browser for the next time I comment. ICC prosecutor Bensouda has to-date refused to act on the Palestine filing. 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. 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. This implies unfair selectivity at best, and smacks of neocolonialism at worst. A balanced assessment of the Court requires a fresh look at fair and unfair critique. 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. These numbers have sparked backlash against the court, with accusations that it only investigates and prosecutes Africans. If the ICCâs ever going to rid the criticism it receives, it will require that the international community grapple with these political realities, rather than simply demanding that the prosecutor look elsewhere. On 11 June 2020 the Government of the United States announced new measures against the International Criminal Court (ICC). Review of âThe Oxford Handbook on the United Nationsâ , a political instrument and weapon used by the west to enslave other states, The struggle to eliminate racial discrimination, Taking forward the UNâs fight against racism, Fifty years of fighting for a better future, The colonial legacy of the right to self-determination, The Universal Declaration of Human Rights at 70 and Global Power. The use of ICC intervention as political or hypothetical argument plays an important role in institutional politics and peace negotiations. Photo by Roman Boed. Even before its existence, the Court has been for criticized for its selectivity, statutory limitations, and potential overreach. Cumbersome procedures, ineffective prosecutions against high-level alleged perpetrators, and weak internal management are among current criticisms of the ICC. Fatou Bensouda: I am glad that they are praising the ICC because I think the ICC is doing phenomenal work. The ICC complements existing national judicial systems and it may only exercise its jurisdiction when certain conditions are met – when national courts are unwilling or unable to prosecute, or when the United Nations Security Council or individual states refer investigations to the ICC. Letâs not forget the ICC has come a long way. Attacking the ICC takes the attention away from where it should be focused: on states themselves. . But by 2016, when the ICC finally brought a member of the LRA, Ongwen, to trial, Museveni had turned on the “useless” court, criticising it of “western arrogance”. Should it carry out ‘thematic’ investigations and prosecutions, that signal that certain contemporary forms of atrocity violence, such as electoral violence (Kenya), gender-based and sexual crimes, destruction of cultural property (Mali), or certain types of human tracking are outlawed? 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. The colonial legacy of the right to self-determination . Review of âThe Oxford Handbook on the United Nationsâ. The Court struggles to meet some of the expectations that it faces. African governments are challenging the legitimacy of the International Criminal Court (ICC), accusing it of being biased against their continent. While political expediency remains lâordre du jour, we have seen forward strides in international justice. The useful question to ask here would be: Why hasnât the ICC been able to exercise jurisdiction over atrocity situations outside of Africa? Things are not fine. First is the issue of credibility. I deeply regret measures targeting Court officials, staff and their families. 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. Some ICC intervention have been perceived as stifling domestic or local responses, or creating local inequalities (e.g., funding). Indeed in its two decades of operation the court has mounted investigations in 25 countries, 12 have been African. In the ICC context, there is sometimes a drive for emancipation, rather than structural openness. The main purpose of the ICC … We will only use your personal information to register you for OUPblog articles. The ICC is also overseeing 9 preliminary examinations âprecursors to potential investigations. Concerns have been raised in relation to the expeditiousness and fairness of proceedings and the treatment of victims (participation, reparation). It is necessary to refine risk assessment, sequencing, timing, and modalities of Court action. They undermine our common endeavor to fight impunity and to ensure accountability for mass atrocities. 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. Yet these criticisms miss a very important point. 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. Another criticism of the ICC refers to the fact that the ICC is predominately engaged with situations in African countries. How does the International Criminal Court answer criticisms that it is illegitimate? 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. Can a convention eliminate racial discrimination? 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). The court is currently investigating 11 situations: 10 of which are in Africa. Intervention in ongoing conflict remains a problem for the ICC and is likely to remain a challenge in the future. It is uncertain if States are willing to use their military or economic force to extricate an oppressive … 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. 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. 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. This poses a legitimacy problem for an ostensibly global court and raises questions over its credibility. 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. Required fields are marked *. One of the most fundamental criticisms of the ICC is that it would apply international criminal law selectively and focus on Africa. In some respects, less may be more. On 6 December 2006, the Tribunal at The Hague approved the use … The International Criminal Court (ICC) has come in for strong criticism - most recently from the United States, but also from many African nations. The ICC has been scrutinized by States as it takes away there authority, power and influence simultaneously through the persecution criminals from within a state. CC BY 2.0 via Flickr. These measures are unprecedented. Thus, of the 6 persons in custody (as of September 2018) 2 are state actors and 4 are non-state actors. 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 … 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. The ICC’s definition and interpretation of gender has a direct impact on case selection and jurisprudence and was controversially debated (Oosterveld 2005). 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. Fifty years of fighting for a better future . ICC practice is characterized by overreach and under-reach. The idea that the court turns a blind eye to perpetrators in other regions has gained traction across the African continent. The African Union’s threat to withdraw from the ICC has made such criticism an urgent issue. Where they are absent, such as in Syria or North Korea, their absence is deplored. Structurally, international criminal justice in The Hague is somewhat introverted. This principle of national prosecution applies regardless of the outcome of national proceedings. In the case of Cote dâIvoire, it accepted the Courtâs ad hoc jurisdiction. Third, there is a certain degree of duplication in terms of procedures. Yet many stronger states that use violence against civilians have protected themselves from the courtâs jurisdiction. But it also has certain risks and drawbacks. 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. The struggle to eliminate racial discrimination . Sometime last year, three African countries—Burundi, the Gambia and South Africa—signalled their intention to leave the International Criminal Court (ICC). 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. Political violence in many ICC cases has complex causes and origins. And the majority underway are not in Africa. A few better prepared cases might leave a larger imprint. There may be sometimes an attempt to try to do too much at the same time. Some believe the court has too little authority, making it inefficient and ineffective at putting away war criminals. Photo: Laurel Hart/Ntarama Genocide Memorial, Rwanda. 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. 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. 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). Second, the docket of the ICC has been full and rich in terms of crisis situations. With international support and backing, the ICC can continue to set a precedent; that atrocity crimes are unacceptable and justice will be dealt. This is unsatisfactory on the long term, and will need to be looked in the future. 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. 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. The ICC therefore takes away one of the States main functions; thir sovereignty, and as a result this undermines their authority. But it is also key to critically examine critiques of the ICC. 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. Or should it adopt an approach in which it goes deeper into specific conflict situations? Kenyatta accuses the tribunal of racism. The ICC’s success is not determined by how many people it indicts, how much it costs, or the outcome of high-profile cases. Laurent Gbagbo is the first-ever head of state to be handed over to the ICC.Â. But they mark only a tiny fraction of Court activity. 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.” 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. Third, what is presented as a tension might not always be a ‘negative’ tension. 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