Is the International Criminal Court a flawed …..

15/04/2014 at 10:10 am Leave a comment

Guest blog by Professor Ray Murphy of the Irish Centre for Human Rights, NUI Galway

When the International Criminal Court (ICC) was established in 2002, there was real optimism about holding those most responsible for genocide, crimes against humanity and war crimes to account.  Over ten years later, the Court is being criticised for having a racist agenda, a flawed investigation process and prosecutorial strategy, combined with interminable delays.  The current prosecutor, Fatou Bensouda from Gambia, has hit back at critics saying they are trying to protect the perpetrators of these crimes.

To date, the Court has convicted only two defendants, former Congolese warlords, Thomas Lubanga and Germain Katanga.  In December 2012, a Congolese warlord was acquitted when the Court rejected the prosecution evidence and testimony of a number of key witnesses.  Later, a judge reprimanded the prosecutor’s failure to investigate proper charges against Uhuru Kenyatta, the now president of Kenya.  Reference was made to the grave problems in the review of evidence by the prosecutor and lack of proper oversight.

Other international tribunals have not fared much better.  The special tribunal established to prosecute former Khmer Rouge leaders in Cambodia, with its mix of international and national staff, has stumbled from one crisis to another.  After seven years and just one conviction, states bankrolling this system are loosing faith. The International Criminal Tribunal for the former Yugoslavia has faced criticism of an anti-Serb bias.  Last November it overturned a number of trial decisions in circumstances that have raised serious disquiet.  It also acquitted the former Prime Minister of Kosovo for a second time raising question as to why the case was brought in the first place.

The situations and cases currently under review have a decidedly African focus. However, nearly all of the current investigations arise from referrals to the Court by the African countries themselves. In Kenya, a commission of inquiry recommended the establishment of a Special Tribunal to deal with the post election violence.  However, it soon became clear that the political leadership in Kenya was not committed to accountability.  As a consequence of the failure to take any action, the prosecutor at the ICC commenced an investigation.

There is no doubt but that the tension between the Court and some African states has been heightened by the fact that the Sudanese and Kenyan presidents are on the current list of wanted persons. The plea for UN Security Council intervention to terminate the ICC proceedings in respect of Kenya was misjudged and legally questionable.  Kenya must co-operate with the ICC while still pursuing national prosecutions against less powerful political figures.

The cases that are being prosecuted also involve a range of individuals that in some way or another have incurred the wrath of Europe and North America.

Politics and law, especially at an international level, will always be intertwined.  The atrocities committed in the course of the conflict in Sri Lanka did not lead to any commission of inquiry or tribunal, let alone a referral to the ICC.  The Sri Lankan government had powerful friends in Europe and elsewhere.  The UN Security Council has referred the situation in Darfur and Libya to the court.  However, the situation in Syria has not been referred to the court owing to disagreement among the permanent members of the Security Council, in particular, opposition from Russia.

How the Court manages the Kenyan dilemma will test its credibility.  Navigating the political and diplomatic storm will prove difficult.  The court should be above all this when pursuing those responsible for atrocities.

All this points to the defects in the provision of international justice.  Central to this process is the role of prosecutors.  The recently appointed ICC prosecutor has inherited a prosecutorial legacy that will take some time to overcome. The prosecutorial strategy adopted by the ICC under its first prosecutor, Moreno Ocampo, has left a challenging legacy to follow. The ICC does not replace national jurisdictions; it only complements them when necessary. National prosecutions are generally preferable, but few have confidence in the current Kenyan leadership and states such as Libya are dysfunctional.  Furthermore, navigating the political and diplomatic storm that situations such as Palestine present will prove difficult.  Libya and Kenya present interesting conundrums. Most commentators will agree that national prosecutions are preferable, but few have any confidence in the current Kenyan leadership.

The annual Summer School on the International Criminal Court at NUI Galway takes place from 16-20 June 2014. During the summer school expert presentations will be delivered on these and related topics by Professor William Schabas, Honorary Chairman of the Irish Centre for Human Rights and Middlesex University; Dr. Shane Darcy, Dr. Noelle Higgins and Professor Ray Murphy, Irish Centre for Human Rights, School of Law, NUI Galway; Mr. John McManus, Counsel /Avocat, Crimes Against Humanity and War Crimes Section, Department of Justice, Canada; Dr. Fabricio Guariglia, Head of Appeals Division of the Office of the Prosecutor of the International Criminal Court; Dr. Mohamed M. El Zeidy, Legal Officer for Pre-Trial Chamber II, the International Criminal Court; Dr. Rod Rastan, Legal Adviser in the Office of the Prosecutor, the International Criminal Court; Prof. Don Ferencz, Visiting Professor, School of Law, Middlesex University; and Prof. Megan Fairlie, Florida International University, USA; Dr. Mohamed Elewa Badar, Northumbria University and Dr. Kwadwo Appiagyei-Atua, University of Ghana and University of Lincoln.

 

For further information on the International Criminal Court Summer School hosted by the Irish Centre for Human Rights, School of Law, NUI Galway please visit http://www.nuigalway.ie/irish-centre-human-rights/summerschools/iccsummerschool/

 

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