Table of Contents
According to Schabas, the ICC was established when 120 countries agreed to become signatories to the Rome Statute, a treaty that instituted the international judicial body. Crimes against humanity, genocides, and war crimes had become rampant, and there was a need to create an authority that will bring justice to the perpetrators of these crimes. This was the main reason for establishment of the ICC. Schabas notes that the formation of the judicial body was not an easy process. This is confirmed by the fact that it took around 50 years for the international judicial institution to finally be unveiled. Through the achievement of its set objectives, the international court is able to bring to an end the impunity of those involved in such horrific crimes. The court commenced operations in 2003. However, the judicial body sometimes is unable to deliver justice and punishment to the perpetrators due to a number of reasons that will be discussed extensively in the paper.
This essay will investigate the effectiveness of the International Criminal Court in prevention of genocide, war crimes, and crimes against humanity. It will do so by evaluating the successes and failures of the international judicial body.
The International Criminal Court Debate
The relevance of the ICC has been a topic of discussion for some time already. The performance of the international court has also been criticized. The effectiveness of the court has been under scrutiny too. All this has led to development of two factions: those supporting the relevance of the court and those against the court. Those who argue for the relevance of the court present the following points.
One of the points supporting the existence of the criminal court is the fact that the court’s investigation has prevented further crimes against humanity. According to Wills,, the judicial body’s act on investigating genocides, war crimes, and other crimes against humanity has had an effect on the perpetrators of the said crimes who have become afraid of indictment and have thus put a stop to their crimes. A good example of this is the indictment of Thomas Lubanga who used children in the Democratic Republic of Congo (DRC) as soldiers to safeguard his power. His prosecution was one of the successes of the court and proved its effectiveness in prosecuting criminals brought before it. Sandholtz reiterates that the ICC’s investigation in the DRC prevented any further bloodshed in other parts of the world such as Sri Lanka and Colombia. Additionally, many of the perpetrators under investigation have abandoned their criminal acts against their people, a factor that has prevented and reduced various crimes violating human rights.
Secondly, the ICC has forced many of the signatories to make improvements to their judicial systems. Cases that come before the international judicial institution are those which cannot be handled by the judicial system of the country where the accused is from. In Schabas’ view, it is imperative to note that the ICC is considered as the last resort in bringing the perpetrators of crimes violating human rights to justice. Countries not wanting to suffer humiliation of failed judicial systems have embarked on improving their courts to prosecute perpetrators on their own without involving the ICC. Chingono indicates that a good example is Kenya which has made various changes to its judicial system after the intervention of the ICC due to the 2007 post-election violence.
Lastly, the international court extends its authority to almost all states around the world. The broad effect of the ICC’s authority has discouraged many perpetrators accused of war crimes from evading prosecution by the court. States that may try to ignore the authority of the ICC are equally affected. Wills asserts that even states that are not party to the international court have recognized its importance and have thus cooperated with it. An excellent example of this cooperation by a non-member state is the case of Rwanda aiding in the arrest of Bosco Ntaganda who was hiding in the country from the ICC.
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The poor performance by the ICC has induced other people to question its relevance to the world. Consequently, they have developed a number of arguments against the continuation of the international judicial institution as described below.
The fact that the international court lacks any power to enforce arrests has led to it being perceived as an irrelevant judicial institution. Sandholtz agrees that the ICC only has the authority to issue warrants of arrest and has to depend on its member states to enforce these arrests. However, there have been instances where such states have failed to pursue the indictments by the court on perpetrators of crimes against humanity. The case of Omar El Bashir, which will be talked about in detail in the discussion section of this paper, is an excellent example of the ICC’s inability to enforce its warrants of arrest.
Secondly, the fact that the ICC has had only one successful prosecution since its inception a decade ago has undermined its significance to a great extent. The case of Thomas Lubanga that was discussed earlier is the only successful prosecution by the ICC. Additionally, the light sentence given to Lubanga despite his committing such a heinous crime of turning children into murderers has had no impact on other warlords who has continued to pursue their war crime agendas. The irony is that despite the prosecution of Lubanga, the same country where the former warlord committed his crimes has continued to use children as soldiers. This has served to show the lack of effectiveness by the criminal court and a stronger argument against its existence.
Finally, the decision of the international court to extend prosecution to leaders of the crimes committed against humanity has undermined the authority of the court. This has caused those opposing the court to feel even more strongly about its relevance. They claim that by prosecuting only the leaders of the crimes, they leave lower level perpetrators of the crimes who continue to conduct their criminal activities with impunity. Sandholtz affirms that the distant ICC threats of punishing these low rank perpetrators have had no effect on them as they do not deter them from crimes. This is also caused by the fact that these low rank perpetrators of war crimes and other crimes against humanity have been manipulated by their leaders and are under their control. For instance, teenage soldiers are very vulnerable to manipulation and can easily be controlled by warlords to do their bidding.
The Effectiveness of the ICC
The effectiveness of the ICC has been difficult to determine. The court has been having a hard time in preventing genocides, war crimes, and crimes against humanity. There have been a number of factors that have contributed to its effectiveness and thus its success. Some of these factors are described below.
The effectiveness of the ICC is evident in its decision-making process which is implemented through the common law. The common law decision making means that it is the judges that make a ruling and not a jury. This goes a long way towards ensuring that the rights of the accused as well as the ruling of cases are handled by professionals. According to Chingono, this makes the court become more effective in delivering justice and making those who have committed atrocities to pay for their wrong-doings. The effectiveness of the international judicial body is further boosted by the court’s appeal system which creates an atmosphere of fairness in the proceedings of the court.
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Another factor that has shown the effectiveness of the court in combating and providing justice to the victims of genocide and other crimes against humanity is flexibility of the state’s party to the Rome Statute. Chingono states that in 2010, a conference took place in Kampala, Uganda, which inducted the definition of aggression by adding genocide, war crimes, and crimes against humanity to it. This definition also clearly indicates the possible types of crimes that can fall under the jurisdiction of the ICC. This flexibility by state’s party to the Rome Statute boosted the effectiveness of the international judicial body by granting it an ability to add amendments to the statute that will increase its jurisdiction. The expansion of the court’s jurisdiction equally increased its chances of bringing perpetrators of genocides, war crimes, and crimes against humanity to justice.
The effectiveness of the ICC in preventing genocides, war crimes, and crimes against humanity has also been heightened by its power to issue warrants of arrest. The case in Uganda involving the rebel group Lord’s Resistance Army (LRA) has been an excellent example of how the issuance of warrants of arrest has benefited the peace process in the East African country. The issuance of warrants of arrest has marginalized LRA by isolating the rebel group from its base in Khartoum. Wills is of the view that the need to see the warrants lifted has increased the rebel group’s interest in participating in peace talks like those held in Juba between the years 2006-2008. This indicated that peace talks can be conducted behind the shadows of warrants of arrest; thus, the effectiveness of the ICC in preventing further civil wars was achieved.
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The effectiveness of the ICC in prevention of genocide, war crimes, and crimes against humanity has been undermined in some aspects. It can be ascertained that the international judicial body is struggling in its endeavors to prevent various crimes under its jurisdiction in different parts of the world. The most pronounced instance when the effectiveness of this international court has been undermined is in the court’s failure to prosecute a number of perpetrators of the crimes. For example, Mills affirms that the court was unable to bring the Sudanese head of state Omar El Bashir to justice for the atrocities that he committed in his country. A number of crimes against humanity have prevailed in some countries across the world despite the existence of the court.
The decision of some countries to refrain from joining the ICC has contributed to the court’s failure to prevent genocide, war crimes, and other crimes against humanity. As a result, the ICC is unable to take any action to make the leaders of such countries that have committed atrocities pay for their crimes. Wills agrees that the Israel-Palestine war over Gaza Strip is an excellent example of the lack of effectiveness of the judicial body in preventing war crimes. Palestine is not a member of the ICC; therefore, the court has no authority in the country. It cannot investigate the violence taking place in Gaza Strip, making the perpetrators of this violence go free. The refusal of Palestine to enter the ICC is influenced by the country’s fear of the consequences of joining the international court. Additionally, it seeks to establish itself as an independent nation. The effectiveness of the court in settling the Israel-Palestine dispute over Gaza Strip has been challenged. It has been noted that the dispute between the two nations is becoming more serious, and it will eventually become too difficult for the ICC to handle.
The fact that the ICC largely depends on national governments and judicial systems in member countries to succeed has been a significant determinant of the effectiveness of the court in achieving its objective. The ICC can only bring the perpetrators of genocides, war crimes, and crimes against humanity to justice if the governments of the affected countries structure their judicial systems in a way that their laws conform to those of the ICC. Chingono states that the effectiveness of the ICC is undermined when states involved in atrocities do not align their laws with those of the international court. Such countries seem to have a free pass to expose their citizens to genocides, war crimes, and other crimes against humanity. This can perhaps explain why countries that have aligned their laws with those of the ICC experience less violence, while those who have not seem to be in turmoil all the time. The loop holes in the effectiveness of the ICC can therefore be linked to failure of some countries’ to collaborate with the international judicial body.
One of the key pieces of evidence of the ICC’s insufficient effectiveness in handling genocide, war crimes, and crimes against humanity has been the case of the Sudanese President Omar El Bashir. He has been one of the key violators of the Rome Statute, which, in turn, brought the ICC into existence. Mills is of the view that the Sudanese president committed atrocious crimes, such as mass killing of the country’s citizens and many other crimes against humanity, that have greatly affected the stability of the country. Today, Sudan is no longer a jubilant country that it used to be. Many Sudanese have been forced to become refugees. African heads of state under the African Union have further undermined the effectiveness of the ICC. They have done so by trying to withdraw from the Rome Statute, the treaty creating the international court, as they strive to defend Bashir. Mills continues with an assertion that Africa feels that the ICC is just another way in which the West is imposing its will on it. The continuous conflict of interests between Africa and Western countries concerning Bashir has weakened the functioning of the ICC. The concerns brought forth regarding the manner in which the international court is handling Bashir’s case have further weakened its effectiveness as the Sudanese president remains unprosecuted. Therefore, it goes without saying that Sudan will never ratify the Rome Statute in a bid to keep the Sudanese president free.
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The fact that the ICC has no mechanism to enforce the Rome Statute has dealt a big blow to the effectiveness of the judicial body. Despite having universal jurisdiction, the court has been unable to implement its decisions in areas affected by violence. Mills indicates that the court lacks necessary means such as armies or other types of law enforcers who can ensure that the decisions by the court are realized. As mentioned in the above case of Omar El Bashir, the court has been unable to arrest him due to the lack of law enforcers. His arrest depends on the signatories of the Rome Statute.
Overall, the effectiveness of the ICC has been questionable as it does not meet the expectations of the members. This has been a big danger to the relevance of the international court. The fact that the ICC has had more failures than successes has shown poor effectiveness of the court.
In conclusion, it is imperative for the international court to completely remove criminal leaders instigating crimes against humanity as the first step in the prevention of these crimes. This will be important in reinstatement of justice to the victims of the crimes.
Despite its efforts, the ICC has not been fully effective in prevention of war crimes, genocides, and other crimes against humanity occurring in different parts of the world. It is therefore critical for the international court to increase its efforts to ensure that the said crimes are prevented and the instigators are brought to justice as soon as this can be achieved. By taking this step, the potential of peace and stability in countries of conflict can become the reality.
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It is important to note that the successes of the ICC have mostly been on paper. The actual prosecution of war criminals has been almost impossible. This has affected the effectiveness of the court to deliver justice. It can therefore be said that the success of the court has not fully been realized.
The necessity to seek justice for brutal international crimes has never been more important. This was one of the main motives behind the creation of the ICC so that the court could bring national leaders who have committed human rights violation to trial. In order to guarantee its success and consequently become more effective, the court will have to become more flexible but at the same time maintain its relevance to the world.
Overall, the effectiveness of the ICC in prevention of war crimes, crimes against humanity, and genocides has been on the low side. The international criminal court has in many instances played a very feeble role in redressing the said crimes. The atrocities being experienced in Palestine and Israel are just some of the examples of the lack of effectiveness of the international court in overcoming violence.
The analysis of the effectiveness of the International Criminal Court in preventing genocides, war crimes, and crimes against humanity has enabled the formulation of the following recommendations for future actions.
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The first recommendation is for the court to make use of plea bargains not only to prevent the crimes but also ensure that justice is provided to the victims. In Chingono’s views, this will encourage the criminal leaders to cooperate in order to hasten the process of delivering justice.
The ICC should have clear standards and goals in order for the court to fully realize the potential that it possesses. This will go a long way towards showing the world that it can become a flourishing permanent institution of international law.
It is also recommended that the international court should first address its failures to be able to ensure its long-term success and stability. Schabas asserts that to be able to correct these failures, the ICC should be willing to make a number of adjustments which will eventually cement its position as a judicial institution of international law.
The court should shape its methods to be more tactical. The use of tactical methods is significant to prevent the judicial body from becoming too lenient in its quest of bringing the leaders committing atrocities to their people to justice.