The International Criminal Court (ICC) was established on July 1, 2002 and it works as a permanent tribunal to prosecute criminals that have been charged with war crimes, crimes against humanity, genocide, and crime of aggression. It was founded under the treaty known as the Rome Statute of the International Criminal Court. The official seat of the ICC is in The Hague in Netherlands, however, its proceedings can take place anywhere in the world. Some of the most pressing issues that the ICC has been faced with include human rights and war crimes (such as torture and genocide). Yet, even though this court has been established and it serves as an important part of the legal aspects of the world, many questions have been raised about its role and potential as an instrument of global justice. This has been mostly because of sovereignty issues and conflict over jurisdictions with various countries.
It would be useful to note that before the set up of the ICC, various international crimes were handled by nation-states. These were responsible in trying to capture and punish the perpetuators of the most heinous of crimes. However, it was noticed that this earlier system did not work too well, as the crimes flourished and did not abate. This can be seen from several genocidal campaigns that the world has seen in the past few years. There have been much more massive killings of ethnic and national groups and numerous situations in which war crimes have been extensively committed, such as in Sudan . "In particular, the genocidal attempts in the former Yugoslavia and Rwanda are clear examples worth mentioning in this regard. Even though the international community has developed legal instruments to prevent those occurrences, it is evident that they did not succeed. The Genocide Convention of 1948 and the Geneva Conventions of 1949 (hold the states responsible with regard to the rights they guarantee. In addition, especially in case of the crime of genocide, it is generally accepted that it is an international customary rule that any state is responsible for its prevention and for its punishment in case it has been committed in its own territory, even if it is not bound by a treaty requiring doing so" . Looking at such scenarios, we find that it were such problems that supported the idea of the ICC even more. This led the international community to develop a permanent body of law that would work only to address international criminal matters. This led to the creation of the ICC.
It would be useful to consider the role of the ICC in dealing with various international crimes. The ICC deals with some of the most severe and serious crimes that are purporting on the world. One of the reasons why the ICC was established was that there had been a lot of conflict over who was accountable and for whom and the perpetuators mostly went unpunished. "Although the idea that a permanent international criminal court is strongly needed, and therefore, should be created, lingered for a very long time. The realization of that idea has come quite recently. Nation-states, the major and primary actors of the international system, have generally been lenient, if not reluctant, in addressing those kinds of acts. Particularly, concerns over sovereign rights of the states have made them reluctant to get together to discuss the issue up until 1998. Since sovereignty has been the underlying principle in the operation of the international system that is generally believed to be built by sovereign nation-states, states have long refrained from dealing with the issues pertinent to even the gravest crimes in order to show their tribute to the principle of non-intervention. As a consequence, apart from a few examples, human rights issues in general, and international crimes that are the most serious violations of human rights in particular, have not adequately been addressed by the state-based international system" .
The Court, as established by the Statute, is complementary to national criminal justice systems. The principle of complementarity resolves the fundamental problem caused by, say, trying to obtain personal jurisdiction over an alleged terrorist from an overprotective home state. The home state, regardless of whether it is a party to the Statute, first has a chance to prosecute. If the state refuses both prosecution and extradition, under the current enforcement system, justice slowly stops. The consent of the home state is not necessary, however, for the Court to prosecute. If national efforts fail to bring an individual to trial, prosecution can still take place, provided that the alleged offense occurred in the territory of a state party or the U.N. Security Council refers the case to the Court. The jurisdiction of the Court is not concurrent, but rather is subordinate; a default jurisdiction for cases where national courts are unwilling or unable to prosecute. Allowing the Court to exercise jurisdiction over issues such as catching terrorists and genocidal mass murderers will alleviate states' nationalistic and sovereignty concerns, as they will not be required to cede jurisdiction to a requesting state. Sending an accused to the Court does not constitute extradition, because the accused is being given over to a supranational body, not another sovereign state. The Court reduces the international tensions currently generated when a state refuses to turn over an accused for prosecution by another state, and especially when a requesting state resorts to kidnapping and torturing an individual. The need for self-help tactics will diminish, as states can simply refer cases to the Court. Although obtaining physical custody over the individual will still be necessary, the Court can issue an international arrest warrant based on evidence presented by the Prosecutor, obligating all state parties to the Statute to arrest that individual. The Court provides a mechanism for resolving jurisdictional disputes, an institution with the resources to try cases that many states lack, and a means to streamline the complexities of existing international arrangements. It also facilitates the investigation and discovery of evidence located in different countries.
Many problems have plagued the ICC ever since its conception. Even though it was established in 2003, it did not enter into full force until 2003. It took a very complex and yet relatively democratic process to ensure for a more and balanced gender, geographic and cultural representation, to elect and appoint judges and the independent prosecutors for the Court. "The Court's involvement with a criminal matter could be activated in three ways. First, the United Nations Security Council is given the authority to refer situations to the ICC. Second, as stated in the Statute, any State Party to the ICC is also authorized to refer a situation to the Court. And finally, the independent prosecutor has the power--although subject to some certain pre-conditions and limitations--to initiate an investigation for the events, in case the chief prosecutor believes that the reluctance, unwillingness or the inability of the national authorities in adequately addressing them have been evident ".
One of the areas where the ICC has come under much pressure is on the front of drug trafficking, especially with the relationship of the court in terms of its dealing with the United States . There had been ideas about establishing an international court for drug trafficking for years before the ICC and they were discussed in several papers . Several suggestions have been made to include drug trafficking as part of the Court's jurisdiction, however, many people feel that this might be too taxing for the Court. The establishment of the ICC made such an international court possible for the law. One of the most important things to realize is that it is in crucial interest of the United States in order to enforce efforts against drug trafficking, especially given the US' position as the world leader. The United States has a strong interest in seeing that more international drug traffickers are brought to justice, whether in the United States, in other national justice systems, or in an international court. Expanding the jurisdiction of the ICC to prosecute drug trafficking offenses will advance the drug policy objectives of the United States and help stem the growing threat of crime in the twenty-first century. The problem of international drug trafficking has particular emphasis on the United States. It would be useful to focus on why international prosecution furthers the drug policy goals of the United States, and on why the current system of enforcement is inadequate to keep pace with the burgeoning drug trade.
The existence of an International Criminal Court with jurisdiction over drug trafficking would advance all of these: policy objectives, beyond what nations can achieve under the current enforcement system. First, the U.S. should support this proposal because it will mean a greater certainty of prosecution and punishment for suspected drug traffickers. The Court would provide another forum for prosecution, in addition to the criminal justice systems of the U.S. and other countries. More alleged offenders would be prosecuted, punished, and consequently removed from existing drug production and distribution networks. The disruption of organized drug trafficking organizations and their loss of drug proceeds could help reduce political corruption, as well as protect the rule of law, social institutions, and democracy from destabilizing influences. The United States would thus benefit from the resulting increase in international security. Second, the Court would likely make international law enforcement more efficient and effective. It will provide mechanisms for resolving jurisdictional disputes between nations and for extraditing offenders to the Court rather than to another sovereign nation. Third, the United States should support the aggressive prosecution of drug trafficking in the Court because it would help reduce the quantity of drugs supplied to U.S. markets. Consequently, benefits flowing to the U.S. could include reductions in drug-related domestic crime, violence, and dependency .
Yet, even with so many apparent benefits of the ICC, its creation has worked to create a major controversy between the European Union and the United States . It is believed by many critics that this conflict between these two major powers of the world might affect the effectiveness of the ICC. It is also believed that this conflict might undermine the future role of the ICC and make it more politically involved than it should be. The role recognized to the Prosecutor of the Court under the Rome Statute also raises a great political debate as to whether this position is likely to be politicized or a necessity for the realization of global justice. In short, in addition to its legal roles, it is an important political actor as well .
However, it should be noted that the establishment of the ICC could be considered a revolution in international law and politics. This is because it had led to the transition from the "state-centered model of the world to a post-internationalist world order that is based less on the principle of state sovereignty, and more oriented and sensitive to the protection of individuals' fundamental rights and freedoms from the abuse of power-and-interest-based intergovernmental relations . At the same time, the ICC has seen unprecedented support and growth in terms of the various NGOs of the world coming together in a coalition in order to support the development of an international law that would punish the perpetuators of various heinous crimes. The ICC is also the first organization of its kind that works to hold powerful people, who are above the law within their own states, responsible for such crimes as war crimes and genocides. The Court can not only prosecute such people but also punish them.
Many people feel that the ICC is nothing special and its role is not as important, as there are many other international courts. They believe that this makes the ICC an old and unoriginal concept. However, even though there are two permanent international courts in existence - The European Court of Human Rights, and the Inter-American Court of Human Rights - these do not try individuals. The job of both these Courts is to receive the complaints from various individuals around the world and then make judgments against the concerned State Party. Thus, the individual who has made the complaint remains under the jurisdiction of the State. This means that the State can end up punishing the complainer (whether legally or illegally) and the perpetuator escape justice . Aside from these two big Courts, some smaller ad hoc tribunals have also been set up in the past, including the Nuremberg and Tokyo Tribunals, and these have worked to try individuals for such crimes as war crimes and genocides. However, these tribunals have always had jurisdiction problems and they have not been able to work effectively.
This is not to say that the ICC has not had its share of problem regarding the jurisdiction of the ICC and its potential threat to the international system that is based on the principle of national sovereignty. Many countries have been afraid of the fact that the implementation of the ICC would work to undermine their sovereignty. In addition, many observers agree that the central issue that faced the ICC is its effect on sovereignty. In such a case, people have sought out the answer to the question of whether the national sovereignty of a country would be sacrificed in the face of the ICC. It would be important to assess the role of the Prosecutor of the ICC as provided in the Rome Statute in order to analyze whether the ICC can in fact work to undermine a country's sovereignty.
Many people have criticized the elected Prosecutors of the ICC in that they are given various liberties and discretion that can work to give them more power over the defendants than legally allowed. However, even though there might be some truth in the exaggerated powers of the Prosecutor, it is important to realize that the Prosecutor's role is not so significant to cause problems with sovereignty. For example, "a Chinese representative that participated in the Rome Conference responded to the UN Chronicle's invitation for making a comment on the adoption of the Rome Statute of the ICC in the following fashion: ???Granting the Prosecutor the right to initiate prosecutions placed State Sovereignty on the subjective decisions of an individual .'"
Various scholars have also criticized the role of the Prosecutor. A professor from Tufts University, Alfred P. Rubin, states that "one key aspect is the authority of the prosecutor to initiate the process of the tribunal by charging particular individuals with violations of the law set out in the statute .... the discretion given to the prosecutor is enormous. Thus, the potential abuse of that discretion is also enormous ." Yet, even though the role of the Prosecutors in the proceedings of the ICC can be greatly politicized, it has been noted that it is highly unlikely that his actions would in any way work to undermine the country's sovereignty.
If we are to look at the role of the Prosecutor, we find that even though he has the authority to initiate an investigation that occurs inside the boundaries of any country, the Prosecutor is not a threat to the country's sovereignty. This means that in some of the cases, the country for which the trial is being conducted might fall into the competence of the Prosecutor. The same applies to the cases where the State Parties refer a situation to the Court. That is to say, a situation referred to by a State Party to the Prosecutor may involve a non-party state's national. This was one of the major controversies during the Rome Conference. "For instance, the US strongly opposed the automatic jurisdiction of the Court and insisted that it would have optional jurisdiction with respect to war crimes and crimes against humanity. In case of the referral by the Security Council to the Court, there are no jurisdictional conditions. In that case, the Court is authorized by the Council to investigate a situation which is related to even non-party states and nationals. Since a Security Council resolution is binding over both the UN members and non-members, once the Council adopts a resolution authorizing the Court to investigate the situation concerned, the Court is granted a universal jurisdiction over the crimes concerned ."
Thus, we find that even though the ICC is an extremely useful instrument for criminal justice, especially in crimes regarding genocide and war, where the perpetuators are seemingly above the law of their own states, it has met with its share of problems, undermining its capacity to operate functionally. Various scholars are against the ICC and many countries have developed various conflicting ideas regarding the court, especially when it comes to the idea that the ICC might be interfering with their sovereignty. These problems have worked to undermine the working of the ICC in many ways, however, the Court is still active and it has been working to alleviate such crimes in the world as genocide, and war crimes. The ICC can be much more effective given that the various countries in question, including the U.S., Sudan, and the E.U. do not concern themselves with ideas regarding their loss of sovereignty and rather let the ICC conduct its business without any qualms. Many people feel that the fact that the Court is authorized to exercise its jurisdiction over the situations involving nationals of non-party states to the Rome Statute is of greatest relevance to the debate on whether or not it has been a successful venture so far. Even though it might seem that this authority of the Court is an important step in becoming a right-based world order rather than the one based on national interests, the Court continues to be undermined.
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