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The International Criminal Court: Challenges and Prospects, Annual Lecture on Human Rights and Global Justice, Center for International Law and Justice (CILJ), 6 Fla Florida A & M University Law Review Volume 6 Number 1 Social Justice, Development & Equality: Article 3 Comparative Perspectives on Modern Praxis Fall 2010 The nI ternational Criminal Court: Challenges and Prospects, Annual Lecture on Human Rights and Global Justice, Center for International Law and Justice (CILJ) Akua Kuenyehia Follow this and additional works at: http://commons.law.famu.edu/famulawreview Recommended Citation Akua Kuenyehia, The International Criminal Court: Challenges and Prospects, Annual Lecture on Human Rights and Global Justice, Center for International Law and Justice (CILJ), 6 Fla. A&M U. L. Rev. (2010). Available at: http://commons.law.famu.edu/famulawreview/vol6/iss1/3 This Lecture is brought to you for free and open access by Scholarly Commons @ FAMU Law. It has been accepted for inclusion in Florida A & M University Law Review by an authorized administrator of Scholarly Commons @ FAMU Law. For more information, please contact [email protected]. THE INTERNATIONAL CRIMINAL COURT: CHALLENGES AND PROSPECTS, ANNUAL LECTURE ON HUMAN RIGHTS AND GLOBAL JUSTICE, CENTER FOR INTERNATIONAL LAW AND JUSTICE (CILJ) by Judge Ahua Kuenyehia Appeals Division, International Criminal Court March 21, 2011 I. INTRODUCTION This past century has seen some of the worst atrocities in the history of humanity. These atrocities, often involving serious violations of inter- national humanitarian and human rights law, have often been committed on such a scale and in a context that national courts have not always been able to deal with such crimes effectively. In all too many cases, these crimes have been committed with impunity, which has only encouraged others to violate international humanitarian and human rights law. International tribunals set up to address some of these issues have been established on an ad hoc basis with limited temporal and subject matter jurisdictions. It is against this backdrop that the International Criminal Court (ICC) assumes its significance as the most ambitious development in the struggle against impunity. As noted above, the prosecution of war crimes internationally is not new. It dates back to the period after World War II when Allied Forces established the Nuremberg and Tokyo Tribunals to try the perpetra- tors of the heinous crimes committed in Europe and Asia. Regrettably, after these historic trials, the move towards creating international criminal tribunals stalled; the realities of Cold War paralysis quickly set in. Thus, although the International Law Commission (ILC) said in a 1950 report that a permanent international criminal court would be "possible and useful," it took another 50 years to make it a reality. The desire for an international criminal court was rekindled in the wake of the atrocities that occurred in the former Yugoslavia and Rwanda in the 1990s. It may be recalled that following the atrocities 89 90 FLORIDA A & M UNIV. LAW REVIEW Vol. 6:1:89 committed in the Former Yugoslavia and Rwanda, and the huge inter- national outcry against the international community for its slow response to the carnage that ensued, the United Nation (UN) set up the International Criminal Tribunals for the Former Yugoslavia and Rwanda (ICTY/R) in 1993 and 1995, respectively. These tribunals gave more impetus to the attempts to establish a permanent international criminal court capable of intervening in an on-going conflict or immedi- ately after a conflict rather than an ad hoc tribunal with limited jurisdiction established long after a conflict. Such an approach to inter- national justice was obviously not considered satisfactory not only because of the costs and effort involved in establishing these courts but also because of the difficulty in collecting evidence long after a conflict had ended. The ICC therefore owes a great debt to previous interna- tional tribunals, on a political, jurisprudential and symbolic level. At the same time, the ICC is unique. It has many characteristics that set it apart from any previous international criminal law institutions. II. THE ICC: AN OVERVIEW The ICC is a treaty based institution. The Rome Statute, which estab- lishes the ICC, came into force on July 1, 2002 following its ratification by 60 countries. The negotiation of the Statute had taken place in Rome at a meeting that was open to all member States of the UN. The Statute was adopted on the July 17, 1998 and came into effect on the 60th ratification. There are currently 114 States Parties to the Rome Statute. Out of the 114, thirty-one (31), the largest block, are African. a. Objectives of the ICC The objective of the ICC is stated in the preamble to the Rome Statute and reiterated in the Strategic Plan of the Court. According to the Pre- amble, the ICC aims to "put an end to impunity for the perpetrators of [serious crimes of concern to the international community] and thus contribute to the prevention of such crimes."' The ICC also seeks to "guarantee lasting respect for the enforcement of international justice."2 The Strategic Plan of the ICC re-echoes these ideals. It defines the ob- jective of the Court as follows: "to fairly, effectively and impartially 1. The Rome Statute of the International Criminal Court, Preamble, opened for signature July 17, 1998, 37 I.L.M. 1002 [hereinafter Rome Statute]. 2. Id. 2010 THE INTERNATIONAL CRIMINAL COURT 91 investigate, prosecute and conduct trials of the most serious crimes; to act transparently and efficiently; and to contribute to long-lasting re- spect for and the enforcement of international criminal justice, to the prevention of crime and to the fight against impunity."3 In short, the ICC seeks to secure international rule of law. b. Jurisdiction The jurisdiction of the Court is limited in the following way: * In terms of the material basis: to genocide, crimes against hu- manity and war crimes. While the ICC has jurisdiction over the crime of aggression, it was agreed at the time of the adop- tion of the Rome Statute that it would exercise jurisdiction over the crime of aggression only when the States Parties have adopted provisions defining this crime and sets out the conditions under which the Court shall exercise jurisdiction with respect to the crime. Such a definition and the frame- work on how the ICC will exercise its jurisdiction over this crime was adopted on June 11, 2010, at the first Review Con- ference of the Rome Statute held in Kampala, Uganda from May 31 to June 11, 2010. The definition contains a threshold requirement that the act of aggression must constitute a manifest violation of the United Nations Charter. It is impor- tant to note that the ICC cannot exercise jurisdiction over the crime until after January 1, 2017 when a decision will be made by States Parties to trigger its jurisdiction. * In relation to time, with respect to crimes committed after July 1, 2002. For conflicts that started before the Rome Stat- ute, such as the conflict in northern Uganda, the ICC may only exercise its jurisdiction in respect of crimes that were committed after July 1, 2002. In fact, Uganda when ratifying the Rome Statute submitted a declaration accepting the ICC's jurisdiction as of July 1, 2002. * In relation to persons, crimes committed either by a national of a State Party to the Rome Statute, or on the territory of a State Party (unless there has been acceptance by a non-State Party or a referral by the Security Council). The jurisdiction of the Court also only applies to persons aged 18 and above at the time of the alleged commission of a crime. 3. Assembly of States Parties, "Report of the Bureau on the Strategic Planning process of the International Criminal Court," ICC-ASP/5/30, The Hague, 5th Session, at 3 (Nov. 20, 2006). 92 FLORIDA A & M UNIV. LAW REVIEW Vol. 6:1:89 * In addition, under Article 27, immunity cannot be asserted on the basis of official capacity. Consequently, heads of states and governments and other high-ranking officials are subject to the jurisdiction of the ICC. Mr. Jean-Pierre Bemba, the for- mer vice president of the Democratic Republic of the Congo, who is currently on trial for crimes committed by troops under his command in the Central African Republic, is so far, the most senior leader to go on trial at the ICC. * Under Article 28, commanders and superiors can be held lia- ble for criminal offences by their subordinates. The Prosecutor has, as a matter of strategy, decided to limit his activi- ties to individuals who bear the greatest responsibility for the commission of crimes within the jurisdiction of the ICC.4 This is a pragmatic approach since it is obvious that the Court can investigate and prosecute only a handful of those responsible for such serious crimes in any situation. c. Exercise of jurisdiction The ICC may exercise jurisdiction through State Party or Security Council referral. The Prosecutor also has the power to initiate his/her own investigation subject to authorization of the Pre-Trial Chamber.5 As to the conditions for the exercise of jurisdiction, the ICC may exer- cise jurisdiction over a crime falling within its jurisdiction if the State in which the crime was committed is a State Party to the Rome Statute or the perpetrator is a national of a State Party. The Rome Statute also makes room for non-state parties to voluntarily submit to the jurisdic- tion of the ICC regarding a particular crime. 6 The Security Council is authorised by the Statute to refer a situation in a non-state party to the Court if it considers the situation to be a threat to international peace and security.7 This is how the situation in Dar- fur, Sudan, and Libya, which are not a State Party to the Rome Statute, came before the ICC.
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