Managing Diversity: the ICC Ato Kwamena Onoma ISS

Background The world system is an anarchy not a hierarchy Main principle of international relations is that of state sovereignty/non-intervention Sovereignty in the area of criminal justice – Legislative – Judicial – Executive Outcomes are primarily determined by state interests and differences in power States generally pursue their interests

Some crimes that have shocked humankind

Origins Pre- WWI ideas of ICRC founders WW I Treaty of Peace called for international criminal tribunal for war criminals Post WW II Nuremburg and Tokyo tribunals Cold War defeat of efforts to establish permanent tribunal Nasty conflicts at end of Cold war and ad hoc tribunals Call to International Legal Committee of the UN for a permanent tribunal in 1992.

The long process ILC draft submitted in 1994 General Assembly discussions Statute approved at UN Conference in Rome on June 15-17, ratifications reached April 1, 2002 Rome Statute entered into force on July 1, 2002

The ICC in brief Has no retroactive jurisdiction (pre-2002) Cases brought by prosecutor or UN Security Council Opt out clause: can ratify and not recognize jurisdiction for seven years No reservations allowed US signed Impunity Agreements with states Three-Nine year elected term for 18 judges Prosecutor and investigators

Three offenses Deals with most serious international human rights offenses ONLY – War crimes: ‘any devastation (during wars that are) not justified by military, or civilian necessity’ (Solish: Law of Armed Conflict) Crimes against humanity: – Crimes against humanity ‘are particularly odious offenses in that they constitute a serious attack on human dignity or grave humiliation or a degradation of one or more human beings. They are not isolated or sporadic events, but are part either of a government policy …. Murder; extermination; torture; rape; political, racial, or religious persecution and other inhumane acts reach the threshold of crimes against humanity only if they are part of a widespread or systematic practice.’ (Rome Satute) Genocide – Genocide is ‘the deliberate and systematic destruction, in whole or in part, of an ethnic, racial, religious, or national group’ (Markus: Victim’s rights and advocacy a the ICC)

Some Limitations Complementarity: ICC can only prosecute only when states are unwilling or unable to prosecute – State-sovereignty is primary Court depends on policing and executing powers of state Collecting evidence and investigating crimes committed in difficult and distant zones is difficult State interests and realpolitik influences prosecution decisions

Selective prosecutions: All-African line-up – If you are going to commit crimes make sure you stay in power and be friend of mighty) Sacrificing peace-building and stability for justice – Bashir, Kony, Charles Taylor Overlooking some crimes in its prosecutions (GBSV) Repeated prosecutions and detention till death Paying greatest attention to rarest crimes Structural violence cannot be arrested and prosecuted

Potential benefit Ending impunity in poor and weak states Deterring crimes in poor and weak states