Thomas Corcoran

The ICC: Legitimacy and Sovereignty

Unquestionably, the International Criminal Court or the ICC as it is widely known, has the potential to be one of the most important actors in International Criminal Law. It fundamentally aims to trial and prosecute those who are responsible for crimes against humanity, like genocide, ethnic cleansing, aggression and other crimes of war. However, like the majority of human rights regimes, it has been subjected to certain criticisms since its establishment in 1997.

For many developing nations, the International Criminal Court is seen as yet another Western imperialist mission, this is no truer than in Africa, where the African Union (the AU) has hit out at the ICC by suggesting that it is primarily an “African Court”(Goldstone 2009: 1), which deals with prosecuting only Africans. This has been echoed by many African leaders including the recently assassinated ex president of Libya Muammar Gaddafi, who accompanied by his son and chief spy, were also indicted by the court for crimes against humanity in 2011, just at the beginning of the Libyan uprising.

What makes the court even more interesting is the simple fact that it can still undertake investigations into crimes of war and genocide in countries that have not signed up to it, once it is recommended to do so by the UN Security Council. The Security Council can make the recommendation if they see the atrocity in question as a threat to “regional or international peace and security” (The Economist 2011; pp 1). Unsurprisingly, this is not a rare phenomenon, and there have been instances like Darfur and Libya, where the Security Council has recommended an investigation into goings on in each country.

According to The Economist (2011), Africa is one the courts biggest critics because it provides the court with the biggest block of members at 31 out of 114 states in total. More significantly, most of the cases currently under investigation by the court are also instances of African atrocities. This has lead to a continuous debate between the United Nations and the African Union, who call for an “African Solution to an African problem”(Ibid; pp 2). In an effort to elude the ICC, the African Union merged both the African Court of Justice with the African Court of Human’s and Peoples Rights, which is now known as the African Court of Justice and Human Rights. This itself has been open to a certain amount of criticisms because the majority of global legal systems argue, “standards of justice in Africa are often poor. Courts …are packed with pliant judges keen to do their masters’ bidding” (Ibid).

Leaving the alleged indiscretions of the African Judicial system aside, one can certainly see why the African Union posits certain criticisms against the International Criminal Court. The Court, like the United Nations is highly interconnected and depended on certain nations, like the United States, China and Russia who in the past have all committed atrocities against their own citizens and citizens of other countries. I posit this question, how can the International Criminal Court really be a trusted international judicial regime if it fails to prosecute all those that are responsible for violations regardless of their status within the United Nations and the P5 (Permanent members of the UN Security Council)? If the ICC was a truly fair and just system, why were both George W. Bush and Tony Blair not indicted for their roles in the ‘War on Terror’, which was responsible for the extermination of hundreds of thousands of innocent civilians and are also guilty of the practice of ‘enhanced interrogation’ methods, which is a direct violation of the Geneva Convention of 1986.

Unsurprisingly, Justice Luis Moreno – Ocampo, the chief prosecutor for the International Criminal Court refused to prosecute George W. Bush on the grounds that the United States had not signed up to the ICC, but either was Sudan when they indicted the Sudanese President Omar al – Bashir. Once more, what we can see in the International system is what Aryeh Neier refers to as the “The New Double Standard” (1997). Neier suggests that the human rights “… movement needs to develop the argument that the promotion of human rights should not be weighed against competing concerns”(Neier 1997: pp 95). Neier’s argument is not only concerned with the abuses of the United States, he suggests other significant human rights abusers like China, Russia, Brazil, India and Indonesia. He further points out that these states are also some of the most populous countries in the world and hold some form of significance for the developed world, like either China and India’s vast export markets, which are important to the developed world for trade reasons. Neier’s argument is simple, he suggests that Western or developed states like the United States and their allies, be it economic or for some strategic one, quite often have their human rights violations ignored because of some form of interdependence, like China or India (Ibid; pp 95-97)

This hypocrisy, or ‘double standards’ as Neier refers to it is one of the central criticisms associated with the ICC and outweighs Mendes (2010) argument regarding the lack of proper structure in the African Judicial system to deal with Human Rights atrocities. Ultimately, the practice of ‘double standards’ is incredibly damaging and undermines the legitimacy of the Court throughout the international community. The argument is quite simple, how can the ICC expect to rule fairly if it only rules over a select few that do not significantly contribute to the developed world in some way or another. Unquestionably, one can see how the ICC is used as yet another tool of Western Imperialism, to impose us on the developing world.

The ICC, like the United Nations has very similar issues when it comes to sovereignty. Realistically speaking, neither institution is truly sovereign because they are both highly dependent on individual states. The ICC is not only made up of individual member states that have adhered to the court, but it also relies heavily on these member states to take any individual indicted by the court into custody.

Ultimately, I would argue that in order for the ICC to become a truly legitimate entity. It needs to become a sovereign one, free from the shadow of the United Nations and the developed world. Obviously, this would involve ruling fairly and justly to all states and not just a select few and maybe that way, entities like the African Union may be more willing to embrace it, as opposed to pulling against it.

2 thoughts on “Thomas Corcoran”

  1. Thomas makes a strong argument regarding the ICC’s shortcomings. African countries have every right to look at it with a certain amount of cynicism. There does seem to be a certain degree of bias against African countries inrelation to prosecutions against human rights abusers. I don’t buy the argument that the reason there is a disproportionate number of people from Africa facing prosecution by the ICC because “standards of justice in Africa are often poor. Courts …are packed with pliant judges keen to do their masters’ bidding”. The same can be said for the US, specifically the court-martial of Marine Staff Sgt. Frank Wuterich, who was involved in the Haditha massacre in which 24 people were killed, he received a sentence of 3 months for these killings. Surely this is a case of judges doing their Masters bidding.
    The ineffectiveness of the UN because of the P5 Security Council’s veto has been seen this week in China and Russia vetoing a resolution urging Syrian President Bashar al-Assad to relinquish power. Just as the US and other members of the P5 do regarding their interests, both China and Russia are putting an obstacle in the way of a resolution to what has become a massacre because of their own self interests be it trade or politically motivated.
    The conclusion Thomas comes to is detrimental to the ICC obtaining any form of credibility and usefulness and not suffering from the same constraints as the Security Council. It must become a sovereign entity without western influence. If the ICC is unable to hold the P5 members accountable for their violations why should any other state give any weight to ICC indictments?

  2. Thomas Corcoran’s response to the focal paper raises some very important questions relating to the International Criminal Court and the application of universal jurisdiction. His analysis of the ICC’s ruling in relation to its refusal to prosecute George W. Bush, while pursuing al- Bashir, does highlight a clear case of double standards which should not be ignored. However, I would disagree with Thomas that this hypocrisy, or double standard, outweighs Mendes’s argument regarding the lack of proper structure in the African judicial system to deal with Human Rights atrocities. In contrast, I believe that both should be equally considered.

    In terms of addressing the issue of double standards, it appears that this can only be achieved if the ICC prosecutor ‘gives serious attention to utilizing his unique powers under the Rome Statute’ (Goldstone 2009: 4). The utilization of this power may however take time to wield, though we should not conclude from this that it is beyond the realm of possibility.

    So we can ask ourselves the question whether or not the practice of double standards has undermined the legitimacy of the ICC as proposed? The answer is yes in the case for those countries in the African Union (AU), but are its reasons for accusing the Court of unfairly targeting African countries legitimate?

    Evidence from the economist article suggests that ‘African countries are before the court because the standards of justice in Africa are often poor’. This is further evidenced by the attempts of the AU to circumvent the ICC by establishing the African Court on Human and Peoples’ Rights, where only 26 of the 54 member states have so far ratified the protocol to set up this Court, and only five AU members have issued the necessary declaration granting the Court jurisdiction in cases brought against states by individuals or NGOs.

    In light of this evidence a few points may be noted. First, it seems more plausible to suggest that African dictators make accusations against the ICC as a means of deflecting attention away from their actions. Secondly, though the majority of cases before the ICC at present are from Africa, it does not follow from this that it will always be the case that African countries are in the spotlight. Finally while I would also like the ICC to become a sovereign entity, I do not believe that it is possible to achieve this considering it relies on its members for funding.

    In the short term, the international community would be better served by the ICC if it fulfils the principle of complementarity, exercises the provisions set down in the Rome Statute, and focuses on its mandate which is ‘to provide justice for victims of unimaginable atrocities that deeply shock the conscience of humanity, many of whom happen to be in Africa’ (Goldstone 2009: 4).

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