Download Managing Diversity: the ICC

Managing Diversity: the ICC
Ato Kwamena Onoma
ISS
Background
• The world system is an anarchy not a hierarchy
• Main principle of international relations is that of state
sovereignty/non-intervention
• Sovereignty in the area of criminal justice
– Legislative
– Judicial
– Executive
• Outcomes are primarily determined by state interests and
differences in power
• States generally pursue their interests
Some crimes that have shocked
humankind
Origins
• Pre- WWI ideas of ICRC founders
• WW I Treaty of Peace called for international criminal tribunal for
war criminals
• Post WW II Nuremburg and Tokyo tribunals
• Cold War defeat of efforts to establish permanent tribunal
• Nasty conflicts at end of Cold war and ad hoc tribunals
• Call to International Legal Committee of the UN for a permanent
tribunal in 1992.
The long process
• ILC draft submitted in 1994
• General Assembly discussions
• Statute approved at UN Conference in Rome on
June 15-17, 1998
• 60 ratifications reached April 1, 2002
• Rome Statute entered into force on July 1, 2002
The ICC in brief
• Has no retroactive jurisdiction (pre-2002)
• Cases brought by prosecutor or UN Security Council
• Opt out clause: can ratify and not recognize jurisdiction for seven
years
• No reservations allowed
• US signed Impunity Agreements with states
• Three-Nine year elected term for 18 judges
• Prosecutor and investigators
Three offenses
• Deals with most serious international human rights offenses ONLY
– War crimes: ‘any devastation (during wars that are) not justified by military, or
civilian necessity’ (Solish: Law of Armed Conflict)
• Crimes against humanity:
– Crimes against humanity ‘are particularly odious offenses in that they
constitute a serious attack on human dignity or grave humiliation or a
degradation of one or more human beings. They are not isolated or sporadic
events, but are part either of a government policy …. Murder; extermination;
torture; rape; political, racial, or religious persecution and other inhumane
acts reach the threshold of crimes against humanity only if they are part of a
widespread or systematic practice.’ (Rome Satute)
• Genocide
– Genocide is ‘the deliberate and systematic destruction, in whole or in part, of
an ethnic, racial, religious, or national group’ (Markus: Victim’s rights and
advocacy a the ICC)
Some Limitations
• Complementarity: ICC can only prosecute only when states
are unwilling or unable to prosecute
– State-sovereignty is primary
• Court depends on policing and executing powers of state
• Collecting evidence and investigating crimes committed in
difficult and distant zones is difficult
• State interests and realpolitik influences prosecution
decisions
• Selective prosecutions: All-African line-up
– If you are going to commit crimes make sure you stay in power and be
friend of mighty)
• Sacrificing peace-building and stability for justice
– Bashir, Kony, Charles Taylor
• Overlooking some crimes in its prosecutions (GBSV)
• Repeated prosecutions and detention till death
• Paying greatest attention to rarest crimes
• Structural violence cannot be arrested and prosecuted
Potential benefit
• Ending impunity in poor and weak states
•
• Deterring crimes in poor and weak states