ABSTRACT

The International Criminal Court is a judicial body that entered into force in July 2002 as the first permanent international criminal court to prosecute individuals for the most serious crimes including genocide, war crimes, and crimes against humanity and aggression that threaten the peace, security and wellbeing of the world. It plays an important role in promoting accountability. The ICC is the first and only permanent international court with jurisdiction over individuals, regardless of their official capacity and is based in The Hague, Netherlands. The Rome statute is the treaty that established the court. Though notable progress has been made since the court’s inception, the court faces several challenges that undermine its credibility. Despite the role it plays in investigation, arrest and prosecution of perpetrators of international crimes in an attempt to maintain peace, there are still cases of violation and commission of acts of aggression jeopardizing world peace. This research question how effective my ICC is in promoting peace. Thus, it is for this reason this research tries to critically examine the role of the ICC in promoting peace and security. To achieve this, the doctrinal research method was adopted. After analyzing the role of ICC in promoting peace, the research found out that the ICC plays a crucial role in promoting peace but requires further support from the international community to achieve its objectives. It was equally discovered that the ICC has faced challenges in securing cooperation from states and achieving universal participation which have limited its effectiveness in promoting peace. It is recommended that states increase their Cooperation with the ICC and work to overcome barriers of universal participation to guarantee a better promotion of peace by the international criminal court in Africa and the world.

Keywords: Promotion of peace, The international criminal court

GENERAL INTRODUCTION

0.1 Background to the Study

The setting up of the International Criminal Court (ICC) entered into force in July 2002, though established in 1998. It was hailed as one of the fundamental revolutions in the history of international criminal justice with its main role being putting an end to impunity for the perpetrators of the most serious crimes of concern to the international community‟. The establishment of the ICC had been intensively deliberated upon after the First Word War (WWI) and before the Second World War (WWII). However, in 1989, the clamor for the establishment of ICC gained momentum when Trinidad and Tobago called on the United Nations General Assembly to establish an international court to support international efforts to prevent drug trafficking‟.^[1] The world had before that experienced the horror of three genocides that shocked the conscience of humanity, for example the Greek genocide 1914, Rwandan genocide in 1994 and the Cambodian genocide in 1979. The conflict in the former Yugoslavia and the Rwandan genocide left millions of people dead. The Holocaust genocide in Germany had earlier killed more than six million Jews leading to public outcry and demand for justice.

The world could no longer watch helplessly as victims were being senselessly massacred. Justice for victims of atrocities was the main driving force in the founding of the ICC.^[2] The establishment of the ICC revived hope that peace would prevail in the world irrespective of one’s status in society as the Court sought to prosecute perpetrators of international crimes irrespective of their status in the society. The Rome Statute gives the Court jurisdiction over genocide, war crimes, crimes against humanity and aggression. The Court enjoys complementary jurisdiction and is therefore a court of last resort. The Court only exercises its jurisdiction if a deserving case has not been prosecuted by a national court which has primary jurisdiction to prosecute.^[3] Such a case must either be referred to the Prosecutor by a State Party, or by the United Nations Security Council under Chapter VII of the UN Charter or the Prosecutor initiates investigations proprio motu as authorized by the Court’s Pre-Trial Chamber.

The complementarity principle which requires ICC to be a Court of last resort limits its jurisdiction. The ICC cannot investigate or prosecute a case unless it is demonstrated that the case is not being investigated and prosecuted by a national court where the crime occurred or unless it is proved that the initiated investigations and prosecution are a cover up to protect the suspect.^[4] Apart from limited jurisdiction, ICC also faces the challenge of carrying out investigations and enforcing its decisions. In order for ICC to play its role in promoting peace, the Rome Statute under Part 9, requires the Member States to fully cooperate with the Court’s investigations and prosecutions.^[5] Oosterveld argues that State cooperation is a key element and tantamount to the mandate of the ICC because the ICC has no police force, military or territory of its own. It has to rely on the cooperation of States to investigate, arrest, collect evidence and protect key witnesses and sentence individuals who commit international crimes.

The Rome Statute requires State Parties in accordance with the Statute to fully cooperate with the Court in its investigation and prosecution of crimes within its jurisdiction.^[6] The responsibility of State Parties to cooperate with the ICC is two-fold; firstly, it is the general commitment to cooperate through investigation, arrests and surrendering of suspects and secondly, it is the obligation to ensure that cooperation provisions under the Statute are domesticated under their national laws. ICC has also expounded some rights previously unheard of in criminal justice system such as the rights of victims’ participation in the proceedings, reparations and has also created awareness on its functions and influenced domestic legislation.^[7]

Many countries especially African countries have in the recent past threatened to withdraw from the jurisdiction of ICC over allegations of bias. The threat by African countries to withdraw from the ICC warrants an assessment of the Court’s role and future strategy if it has to remain relevant. The Court has been accused of being biased against Africa and this was heavily witnessed during the trial of the Kenyan cases. So far Kenya, South Africa, Burundi, Gambia, Namibia, and Uganda spearheaded by the AU have called for a collective withdrawal from the ICC.^[8] This is a clear indication of how international justice can be compromised on the grounds of political expedience.

The ICC in its quest to achieve universal peace adopts a retributive approach through prosecution of suspects and restorative approach through reparation and victims’ participation in the proceedings. Unlike earlier tribunals which did not recognize reparation and victims’ participation in proceedings. The ICC has been celebrated for taking this innovative approach by ensuring that the victims access justice and are restored to the position they were before the atrocities occurred. Reparation for harm suffered by victims is alien to international criminal justice system.^[9] The establishment of ad hoc tribunals such as the International Criminal Tribunal for former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR) in 1990’s did little to change the place and role of victims in the international criminal justice system. The ICTY and ICTR only included victim protection measures, with no provisions for victims either to be part of proceedings or to claim reparations.^[10] Critics of ICTY claim that victims testifying before the Tribunal far away from their homes and places where the crimes were committed were traumatized by the experience. Despite the notable adoption of reparation and victims’ participation, ICC has faced various challenges in ensuring that peace prevails in the world. Moffet argued that even though the ICC provides for the recognition, protection, participation and reparation of victims to enhance victim’s justice, it remains merely symbolic.^[11]

Since its establishment, ICC has only been able to make one decision on reparation in the Lubanga Case and that decision came after a long wait. In October 2016, the Trial Chamber II in the Lubanga Case approved and gave the Trust Fund for Victims the go ahead to implement the reparation plan. In the Kenyan Situation, the ICC declined to hear the application for Kenyan victims requesting the Court to order the government of Kenya or the Trust Fund for Victims for reparation. The Court argued that it had no jurisdiction since the cases had been closed without any conviction and therefore no one could be held responsible. Though, ICC faces various challenges in achieving universal justice, there is still hope in the potential of the Court. Stromseth argued that international criminal courts and tribunals must focus on post-conflict justice to reinforce international peace and security. Another argument which has gained momentum is that of strengthening of national capacity to prosecute international crimes as the national courts enjoy original jurisdiction. In instances where countries lack the capacity, ICC should come in and provide assistance.^[12]

Despite the challenges ICC faces, as an international Court of criminal justice, it must focus on its key objectives of ensuring that peace prevails. This can be done through prompt prosecution of suspects, protecting the rights of the accused persons, ensuring transparency, and maintaining peace through deterrence and embracing impartiality in its investigations.^[13].

0.2 Definition of Key Terms

The International Criminal Court (ICC)

The ICC is the world’s first permanent independent tribunal established to end impunity for the worst crimes under international law: genocide, war crimes, crimes against humanity and the crime of aggression. The ICC started its operations in 2002 and has quickly become the centerpiece of international peace. It is currently conducting trials, investigations and preliminary investigations in situations on four continents.

The ICC is based in The Hague, a city in the Netherlands that hosts many international institutions, and has field offices in several countries. The court carries out its investigative work through the office of the prosecutor, led since 2021 by British lawyer Karim A.A. Khan, who previously served as Assistant Secretary-General of the United Nations.

The court has eighteen judges, each from a different member country and elected by the member states. It requires its members to seek a gender-balanced bench, and the judiciary must include representatives of each of the United Nations’ five regions. Judges and prosecutors are elected to nonrenewable nine-year term. The president and two vice presidents of the court are elected from among the judges; they, along with the registry, handle the administration of the court.^[14]

International Peace  

International peace refers to a situation of absolute serenity in the international community and the situation where there is no war or conflict between countries or armed groups. The preamble of the Rome Statue recognizes that grave crimes threaten the peace and wellbeing of the world. It also affirms that the most serious crimes of concern to the international community as a whole should not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation determined to put an end to impunity for the perpetrators of those crimes and thus contribute to the prevention of such crimes. The purpose of the UN as stated in Article 1 of its charter is the maintenance of international peace and security and the international criminal court has a part to play as far as promoting this peace is concerned. To this end, it is required to take effective collective measures to make sure that perpetrator of crimes under its jurisdiction, are being Put to Justice.

0.3 Statement of the Research Problem

The International Criminal Court having been in the justice system for two decades has defined its role and strategies in the global system. ICC as a court of last resort is the last hope for those who cannot find justice in their own countries. The Court’s establishment was meant to deter perpetrators of crimes against humanity by expeditiously trying the perpetrators while at the same time restoring the victims. Though notable progress has been made since the Court’s inception, the Court faces several challenges that undermine its credibility.

Despite the role the ICC plays in the investigation, arrest and prosecution of perpetrators of international crimes and in an attempt to maintain peace and security as stipulated in its preamble, there are still cases of violation and commission of acts of aggression, genocide, crimes against humanity and war crimes jeopardizing world peace like the war in Syria, Sudan, Israel and the Russia-Ukraine war.

0.4. Research Questions

This study sets out to answer the following research questions.

0.4.1. Main Research Question

• How effective is the International criminal court in promoting international peace?

0.4.2 Specific Research Questions

• What are the challenges faced by the International Criminal Court in its pursuit for international peace and security?
• What is the legal framework governing the role of the International Criminal Court in promoting peace?
• How can the challenges faced by the International Criminal Court in promoting peace be curbed?

0.5. Research Objectives

0.5.1. Main Research Objective

The main objective of this study is:

• To critically examine the Role of the International Criminal Court in promoting international peace and security.

0.5.2. Specific Research Objectives

The specific objectives include the following:

• To explore the legal framework governing the role of the International Criminal court in promoting peace.
• To examine the challenges faced by the international criminal court in promoting international peace.
• To recommend mechanisms that can be implemented to overcome the challenges faced by the ICC in promoting international peace.

[1] RS Clark, “The International Criminal Court and the crime of Aggression” Journal of Internat (2009) Pp 273-274.

[2] Marta Bitosorli, “The Syrian situation: International Humanitarian Law violations and call for justice (ALMASARD 2015). P. 203.

[3] Article 17, Rome statute of the ICC 1998.

[4] Valerie Oosterveld, Mike Perry and John McManus, “The cooperation of States with the International Criminal Court” Fordham International Law Journal. 25(3), 2001, p.767.

[5] Article 86, Rome statute of the ICC 1998

[6] Article 87, 88, Rome statute of the ICC 1998.

[7]Vahakn N. Dadrian, “The Historical and Legal Interconnections between the Armenian Genocide and the Jewish Holocust: From impunity to retributive justice and peace” YALE J INT’L L Vol 23, 1998,503.

[8] Claire de Than and Edwin Shorts. International Criminal Law and Human Rights (Sweet and Maxwell 2003, P. 32.

[9] Godfrey Mukhaya Musila, “Restorative justice in international criminal law: The rights of victims in the international criminal court’ (Doctor of philosophy thesis, University of Witwatersrand 2009). Pp 21 & 22.

[10] Carsten Stahn, Hector Olasolo and kate Gibson, ‘Participation of victims in pre-trial proceedings of the ICC (2006) 2, journal of international criminal justice Vol. 2, 2006. P. 3.

[11] Luke Moffet, ‘Realizing Justice for Victims before the international criminal court’ International crime data Base Briefs,Vol.6(6) 2014 p. 31.

[12] Jane E Stromseth, ‘Justice on the ground: can International Criminal Courts Strengthen Domestic Rule in Post Conflict Societies;, Hague Journal on the Rule of Law 87. (2009). P. 13

[13] The prosecutor v. William Samoei Ruto and Joshua Arap Sang situation: situation in the Republic of Kenya ICC-01/09-01/11-2038, 01 July 2016, Trial Chamber V (a) | Decision. P. 214,

[14] Lawaal Olawale. The International Criminal Court, and the National Judicial system in African states: Analysis of the Failsafe Judicial system and the definition of the status and structure of international criminal court (Lagos University 2013). P 78.