It has been suggested that the ICC has made a positive impact on the global community. First is the claim that the Rome Statute is a major instrument in the ‗constitutionalization‘ of international relations and that the process of establishing the Court hastened the departure from power politics to the realization of common ethical goals.784 It is also argued that given the growing consensus that atrocities should be punished; the ICC has significant advantages over ad hoc criminal courts in doing so. On the other hand, opponents of the ICC regime have advanced the argument that the Court is expected to be the missing link in the chain of human rights enforcement, aiming to deter atrocity and bring about peace and justice, by rising above international politics; and by prosecuting any, and all individuals guilty of the worst atrocities.
The argument centres upon the extent to which the ICC is undertaking the political task of disciplining some States while insulating others using the language of law.
783 < http://www.icc-cpi.int/kenya> accessed on 2nd September 2016
784 K Ainley, ‗The International Criminal Court on Trial‘ (2011) Vol. 24 No. 3. Cambridge Review of International Affairs, 309.
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Murphy has stated that politics and law will always be entwined and that the atrocities committed during the conflict in Sri Lanka led to neither a commission of inquiry or tribunal, let alone, a referral to the ICC. However, the UN Security Council had referred the situation in Darfur and Libya to the Court. But the situation in Syria has not yet been referred to it, owing to the disagreement among the permanent members of the UN Security Council.785 This view has been articulated especially by African leaders due to an alleged disproportionate focus of the Court on Africa. While it claims to have a global mandate; to date, all eight situations which the ICC has investigated are in African countries. Furthermore, despite the fact that over two-thirds of the members of the African Union (AU) are parties to the Statute of Rome, nevertheless, over the years, the Assembly of the AU has adopted various resolutions critical of the ICC and its practice.786
The tension between the two bodies led the AU to amend the Protocol on the Statute of the African Court of Justice and Human Rights to incorporate the core international crimes within the jurisdiction of the ICC,787 and to immunize Heads of State and senior officials from criminal prosecution.788 It would appear that this conflict came to a head in June 2015 when the Sudanese President, Omar al-Bashir, visited South Africa. On 4th March 2009, the ICC issued an arrest warrant against Omar al-Bashir for crimes against humanity and war crimes. On 12th June 2010, the ICC issued an additional warrant for genocide for the ethnic cleansing of the Fur, Masalit, and Zaghawa tribes.789 Omar al-Bashir had to leave South Africa hurriedly and
785 R Murphy, ‗Many Criticisms of International Criminal Court have Validity‘ The Irish Times, June 6, 2013.
786 M du Plessis et al, op cit, p. 2.
787 Article 28A to 28M of the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights.
788 Article 46A bis of the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights provides that: ‗No charges shall be commenced or continued before the Court against any serving African Union Head of State or Government, or anybody acting or entitled to act in such capacity, or other senior state officials based on their functions, during their tenure of office‘.
789 ‗Stop Bashir. End Genocide‘. < http://www.bashirwatch.org > accessed on 13th August 2015.
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surreptitiously while a court decided whether to enforce the ICC warrant. His case was a clear example of the paradox of the politics of international criminal justice as the South African executive arm of government ignored South African law, which the judiciary had sought to enforce.790 A South African high court had ordered him to remain in the country pending its final decision on whether to execute the ICC warrant.791
The ICC is not a court of general jurisdiction. Its subject matter jurisdiction is restricted to only four crimes: genocide, crimes against humanity, war crimes and the crime of aggression.
In reality, however, the Court can exercise jurisdiction over only three crimes since a consensus has not yet been reached over the definition of the crime of aggression.792 Crimes like terrorism, corruption, unconstitutional change of governments, and drug trafficking are excluded from the remit of the Court. Alubo and Lar observed that the ICC has been criticized because its jurisdiction does not extend to internal disturbances such as riots, religious and communal crises, and some military expeditions within the territory of States Parties.793 Expectedly, the authors cited the Odi massacre of 20th November 1999 as well as the Zaki Biam massacre of 2001, both perpetrated by the Nigerian army.794 Yet, as we bear in mind the resource constraints of the ICC, it is necessary to point out that its Statute is not cast in stone.795 The ICC itself was originally
790 ‗Five of the World‘s Most Wanted for Crimes against Humanity‘. <
http://www.euronews.com/2015/07/17five-of-the-worlds-most-wanted-for-crimes-against-humanity/ >
accessed on 13th August 2015.
791 Q Hunter et al, ‗How Zuma and Ministers Plotted Omar al-Bashir‘s Escape‘. Mail & Guardian, June 19, 2015. < http://mg.co.za/article/2015-06-18-how-zuma-and-ministers-plotted-omar-al-bashirs-escape >
accessed on 13th August 2015.
792 Paragraph 2 of Article 5, ICC Statute: ‗The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with Articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime…‘
793 A A Alubo and O Lar, ‗The International Criminal Court: Towards the Proposed 2010 Review of the Statute‘ (2009) Vol. 8. No. 1. University of Jos Law Journal, 266.
794 ‗Nigeria massacres blamed on soldiers‘. BBC News. October 24, 2001. <
http://www.news.bbc.co.uk/2/hi/africa/1616598.stm > accessed on 28th May 2015.
795 Article 121, Statute of the ICC: ‗After the expiration of seven years from the entry into force of this Statute, any State Party may propose amendments thereto. The text of any proposed amendment shall be submitted to the Secretary-General of the United Nations, who shall promptly circulate it to all States Parties‘.
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conceived as a means to combat the crime of drug trafficking. Although the motivation for the campaign to establish the ICC was the desire to create an international tribunal to try drug traffickers, the result of the campaign deprived the Court of jurisdiction over drug trafficking offences.796
Another criticism is the insufficiency of checks and balances on the authority of the ICC prosecutor and judges. Marc Grossman; US Under Secretary for Political Affairs, opined that the UN Security Council has the primary responsibility of maintaining international peace and security, but the ICC Statute removes this existing system of checks and balances, and places enormous unchecked power in the hands of the ICC Prosecutor and judges. The treaty has created a self-initiating prosecutor, answerable to no State, or institution, other than the Court itself.797
Furthermore, funding remains a major problem plaguing the ICC.798 The Court‘s finance is derived from voluntary contributions from Governments, international organizations, individuals, and corporations.799 The Court is also funded by contributions made by States Parties and the United Nations, especially for Security Council referrals.800 However, a former Second Vice President of the ICC, Hans-Peter Kaul had remarked that some States Parties are trying to restrict funding for the Court through demands for zero-nominal growth, alongside sweeping demands for more outreach, more situations, and more referrals to the Court.801
796 H L Kiefer, ‗Just Say No: The Case against Expanding the International Criminal Court‘s Jurisdiction to Include Drug Trafficking‘ (2009) Vol. 13. Loyola of Los Angeles International and Comparative Law Review, 165.
797 M Grossman, ‗American Foreign Policy and the International Criminal Court‘ Remarks to the Centre for Strategic and International Studies, Washington, DC. May 6, 2002.
798 E A Oji, Responsibility for Crimes under International Law (Lagos: Odade Publishers, 2013) p. 250.
799 Article 116, Statute of the ICC.
800 Article 115, Statute of the ICC.
801 H. E. Judge Hans-Peter Kaul, ‗The International Criminal Court-Current Challenges and Perspectives‘
Lecture delivered at the Salzburg Law School on International Criminal Law, Salzburg, Austria, 8th August 2011, p. 9.
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As earlier stated, the ICC Statute is silent on amnesties. Indeed, the issue of how to deal with national amnesties and national truth and reconciliation efforts was raised in the ICC negotiations, but was not explicitly dealt with in the Rome Statute.802 Amnesties provide opportunities for dealing with the varied and complex situations facing democracies in transition.
Amnesty is defined as a pardon extended by the government to a group or class of persons, usually for a political offence; or the act of a sovereign power officially forgiving certain classes of persons who are subject to trial but have not yet been convicted.803 According to Professor Azinge, amnesty allows the government of a nation or state to forget criminal acts, usually before prosecution has occurred.804 If all amnesties were to be considered as invalid and never accorded international recognition, this might seriously blunt a useful tool for ending or preventing civil wars, facilitating the transition to democratic civilian regimes, or aiding the process of reconciliation.805
Challenging the view that international law prohibits amnesty, Dugard stated that State practice is replete with examples of cases in which successor regimes have granted amnesty to officials of the previous regime guilty of torture and crimes against humanity, rather than prosecute them.806 The ICC could defer to non-prosecutorial reconciliation measures by not exercising its jurisdiction to proceed with an investigation or prosecution under Article 53.
According to Article 53 of the ICC Statute, the Prosecutor shall…initiate an investigation unless he or she determines that there is ‗no reasonable basis‘ to proceed. On an even stronger note,
802 D Robinson, ‗Serving the Interest of Justice: Amnesties, Truth Commissions and the International Criminal Court‘ (2003) Vol. 14. No. 3. European Journal of International Law, 483.
803 B A Garner, Black’s Law Dictionary (9th edn, St Paul MN: Thomson Reuters, 2009) p. 99.
804 Epiphany Azinge, ‗The Concept of Amnesty and Its Place in Human Rights Discourse, Paper
presented at the Nigerian Bar Association, 53rd Annual Conference. Tinapa, Calabar, Nigeria. 27th August 2013, p. 2.
805 Y Naqvi (2003), ‗Amnesty for War Crimes: Defining the Limits of International Recognition‘ (2003) Vol.
85. International Review of the Red Cross, 587.
806 J Dugard (1999) ‗Dealing With Crimes of a Past Regime. Is Amnesty Still an Option?‘ (1999) 12 Leiden Journal of International Law, 1003.
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Article 53 (1) (c) requires the Prosecutor to take into account the ‗gravity of the crime committed and the interest of victims,‘ where ‗there are substantial reasons to believe that an investigation would not serve the interest of justice‘. Moreover, Article 16 of the ICC Statute allows the UN Security Council to request the Court to defer the investigation or prosecution of a situation. To a significant degree, the ICC Prosecutor is subject to oversight by the Pre-trial Chamber, which can review his decision whether or not to proceed with a case.807
Critics of the ICC, especially writers from the US, argue that it has refused to ratify the Statute of Rome because it lacks prudent safeguards against political manipulation; possesses sweeping authority without accountability to the U. N Security Council, and violates national sovereignty by claiming jurisdiction over the nationals and military personnel of non-party States.808 It must be stated however, that the US was one of the states which laboured very hard towards the establishment of the ICC, exemplified by her roles in the creation of the Nuremberg and Tokyo tribunals, the ICTY and ICTR, and the negotiations leading to the ICC.809
The hostility of the US towards the ICC is manifested in several ways: Security Council resolutions that block anticipated prosecutions by the ICC, adopted in response to threats to sabotage humanitarian mission by a perverse use of the veto;810 bilateral treaties concluded to shield U.S nationals and even some nationals of other States from the threat of transfer to the Court, and domestic legislation authorizing the U.S President to use military force to obstruct the operations of the Court.811 The America Service Members Protection Act 2002 deepens US
807 Article 53 (3) (a) and (b), Statute of the ICC.
808 B D Schaefer and S Groves, ‗The U.S. Should Not Join the International Criminal Court‘ The Heritage Foundation, Washington, DC. 18th August 2009. < http://www.heritage.org/research/reports/2009/08/the-us-should-not-join-the-international-criminal-court > accessed on 27th May 2015.
809 L O Taiwo, ‗International Criminal Court: The United States and the Fight against Impunity‘
(2007-2009) Vols. 2 & 3. Journal of Private and Public Law, 47.
810 UN Doc. S/RES/1422 (2002); UN Doc. S/RES/1487 (2003).
811 W A Schabas, ‗United States Hostility to the International Criminal Court: It‘s All About the Security Council‘ (2004) Vol. 15. No. 4. European Journal of International Law, 702.
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refusal to cooperate with the ICC and authorizes the executive branch of government to ‗use all necessary means‘ to free members of the US armed forces detained by the ICC.812 By doing these, Ojukwu-Ogba believes that the USA has attempted to break the rank of States that are parties to the ICC Treaty, as a way of frustrating the laudable objectives of the Court.813