The Universal Declaration of Human Rights at 70 and Global Power . Taking forward the UNâs fight against racism . Can a convention eliminate racial discrimination? 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. The colonial legacy of the right to self-determination . Part II. A few better prepared cases might leave a larger imprint. It seems that the many of the core issues are developed through practices, policies, and procedural decisions that aren’t in the limelight. 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. The struggle to eliminate racial discrimination . Second, the docket of the ICC has been full and rich in terms of crisis situations. To take the air out of the perception of an African bias, it is crucial that the ICC investigates core crimes in other regions of the world – surely and regrettably, there are prosecutable crimes elsewhere. . Fifty years of fighting for a better future . Intervention in ongoing conflict remains a problem for the ICC and is likely to remain a challenge in the future. While these procedures are taking place, which may take years, the accused will be under some restraint and certainly under grave public shadow. Sometimes, different Chambers seem to re-invent the wheel. The International Criminal Court (ICC) has come in for strong criticism - most recently from the United States, but also from many African nations. Meanwhile, impunity still reigns despite equally shocking violations of international law occurring in countries like Myanmar and Cameroon, Yemen and Syria. 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. We will only use your personal information to register you for OUPblog articles. I would like revisit some of these critiques. 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). Three have declared their countries’ intention to cease being ICC members. 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. 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. But they mark only a tiny fraction of Court activity. The ICC is also overseeing 9 preliminary examinations âprecursors to potential investigations. This fear of political manipulation appears to be a … 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? It is uncertain if States are willing to use their military or economic force to extricate an oppressive … In that sense, ICC practice may be emblematic of the transformation of international law, which develops increasingly bottom-up, rather than top-down. The court is currently investigating 11 situations: 10 of which are in Africa. The ICTY alone has seen ninety individuals sentenced for genocide, crimes against humanity or other crimes. Ultimately some of these tensions may be ‘positive’ rather than ‘negative’ tensions. Another criticism of the ICC refers to the fact that the ICC is predominately engaged with situations in African countries. Letâs not forget the ICC has come a long way. 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. Carsten Stahn is Professor of International Criminal Law and Global Justice at Leiden University and Program Director of the Grotius Centre. Lack of executive/enforcement power: Apart from the post-trial enforcement issue, the ICC also suffers from pre-trial enforcement problem as it depends completely on member states to arrest and transfer defendants. How does the International Criminal Court answer criticisms that it is illegitimate? 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. The main purpose of the ICC … ICC practice is characterized by overreach and under-reach. 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. While political expediency remains lâordre du jour, we have seen forward strides in international justice. Attacking the ICC takes the attention away from where it should be focused: on states themselves. In environments such as Ukraine, Palestine or Syria, there is a risk that the ICC turns into an instrument of lawfare. politically self-serving African criticisms of the ICC by powerful elites motivated by collective protectionism, some of whom are the very leaders responsible for the crimes in the first place. The ICC’s definition and interpretation of gender has a direct impact on case selection and jurisprudence and was controversially debated (Oosterveld 2005). Indeed, African support was central to the establishment of the International Criminal Court (ICC). Fatou Bensouda: I am glad that they are praising the ICC because I think the ICC is doing phenomenal work. On 11 June 2020 the Government of the United States announced new measures against the International Criminal Court (ICC). But without the ICC, would there not be a piece of the puzzle missing (e.g., Colombia)? Improvements to the court’s effectiveness and credibility may be possible without amending the treaty incorporating the ICC Statute. Laurent Gbagbo is the first-ever head of state to be handed over to the ICC.Â. Oxford University Press'sAcademic Insights for the Thinking World. 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. Review of âThe Oxford Handbook on the United Nationsâ. 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. 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. It has become topical to say that the International Criminal Court (ICC) is in crisis. But it is also key to critically examine critiques of the ICC. Second, it is becoming clear that whatever international justice institutions do, the ICC is likely to disappoint one constituency or another. Others think it has too Weaker states, vulnerable to violence, have opened themselves up to the courtâs jurisdiction. Criticisms generally come from two directions. ICC prosecutor Bensouda has to-date refused to act on the Palestine filing. This is unsatisfactory on the long term, and will need to be looked in the future. 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. It forces international criminal justice to re-think its identity, and articulate its space in the context of mass violations, also vis-à-vis human rights law and transitional justice strategies. 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. These measures are unprecedented. In practice, critiques have arisen in relation to almost each situation: impartiality and peace and justice dilemmas in Uganda, evidentiary and performance problems in relation to the DRC (e.g., provider confidentiality, intermediaries), enforcement dilemmas in Darfur, politicization and sustainability issues in Libya, inaction critiques in relation to Colombia, and evidence and cooperation problems in Kenya. The International Court has been criticized with respect to its rulings, its procedures, and its authority. He is the author of The Law and Practice of the International Criminal Court and The Law and Practice of International Territorial Administration: Versailles to Iraq and Beyond. One of the most fundamental criticisms of the ICC is that it would apply international criminal law selectively and focus on Africa. So, rather than demanding that the ICC not pursue justice, primarily requested by Africans, in Africa, critics should be demanding that investigations elsewhere not be blocked. In the case of Cote dâIvoire, it accepted the Courtâs ad hoc jurisdiction. 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. 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. Take the debates on ‘peace and justice’ for instance. This trend may be shifting. Some believe the court has too little authority, making it inefficient and ineffective at putting away war criminals. One of the challenges is to mitigate the risk that Hague justice promotes predominantly global justice, rather than regional or local justice. 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. 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. More fundamentally, there is the existential question: How can the ICC leave a lasting impact although it has to be selective by definition? Critique is often a reflection of deeper frictions that the Court itself is unable to solve: historical inequalities, geo-political frictions, or tensions between global, regional, and local interests. I deeply regret measures targeting Court officials, staff and their families. A popular criticism of the International Criminal Court (ICC) is that, by focusing solely to date on African conflicts, it represents a neo-colonialist intervention in the affairs of African states. In April it will be 16 years since the Court’s first prosecutor was sworn in. And the majority underway are not in Africa. Can a convention eliminate racial discrimination? The ICC has been subject to criticisms since its establishment. Yet many stronger states that use violence against civilians have protected themselves from the courtâs jurisdiction. Criminal Court and Africa and focus on demystifying some of the criticisms levied against the Court in the exercise of its mandate particularly in the African situation countries. It might be counterproductive to present it as a source of salvation. 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). Indeed in its two decades of operation the court has mounted investigations in 25 countries, 12 have been African. With international support and backing, the ICC can continue to set a precedent; that atrocity crimes are unacceptable and justice will be dealt. 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. 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. 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. Featured image: Windows: International Criminal Court, The Hague. Structurally, international criminal justice in The Hague is somewhat introverted. And states that have not joined are protected by veto-wielding powers at the UN Security Council. The Court is fallible, like any institution. 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