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Critical Perspectives on the ICC PDF Print E-mail

 by Youssef Wardany
Exclusive for Al Waref

In light of the rising debates about the crisis in Darfur and the latest request from the International Criminal Court (ICC) to arrest the Sudanese President Omar Al Bashir, it is necessary to discuss the various criticisms laid against the court and its jurisdictions from non-member countries, particularly China, Russia, United States, and Israel.

This analysis will provide insight into the logic of power politics, which dominate our world today, and their selective application of justice, especially in the case of weak and underdeveloped states.

The ICC was criticized for its institutional framework and its practical discourse. The Rome Statute has been seen as a tool for the infringement of national sovereignty. It gives the court the power to reexamine the actions taken and results reached by sovereign states with respect to the investigation and prosecution of the crimes they handle. In reality, this gives the court judges the right to override their national counterparts in the cases concerned. Moreover, the statute does not differentiate between the treaty member states and other states that have not agreed to its terms. Its newly added crimes, are binding to all non-signatory countries despite their refusal to sign, while its signatory parties receive full freedom either to accept, reject, or make reservations to new crimes.

Despite the fact that the Rome Statute states in Article 5 that the Court has jurisdiction with respect to the “crime of genocide,” “crimes against humanity,” “war crimes,” and the “crime of aggression,” the last phrasing had not entered into force yet, reflecting a fear from the U.S., China, and Russia that the inclusion of the “crime of aggression” would weaken the power of the UN Security Council in this regard. This matter was highly condemned in the Middle East as it gives Israel a carte blanche to pursue its discriminatory and barbarous acts against Palestinians.

In addition to these institutional weaknesses, the powers of the court are vague, broad, and unaccountable. According to John Bolton, the former U.S. Ambassador to the United Nations in 2002, the ICC was not a court of limited jurisdiction as he says, “The Court’s discretion ranges far beyond normal or acceptable judicial responsibilities, giving it broad and unacceptable powers of interpretation that are essentially political and legislative in nature.” This has been validated by the unreasonable powers of the General Prosecutor with regard to the crimes committed. He or she has the power to initiate any investigation on his own, depending on his personal judgment and ability to persuade two judges from a three-judge panel of his cause.

These excessive powers of the prosecutor, which lack any external check has been severely criticized by U.S. officials on the basis of its contradiction to the checks and balances of the American constitutional system.  For Mr. Bolton, “The Rome Statute creates a self-initiating prosecutor, answerable to no state or institution other than the Court itself and without such an external check on the prosecutor, there is insufficient protection against politicized prosecutions or other abuses.”

The reality has legitimized these fears, even more so than in the initial estimation of the U.S. While the General Prosecutor opened an investigation against the rebels in Sudan who attacked peacekeepers in Haskanita in September 2007 saying, the “Gravity in this case is not a matter of Numbers, but a matter of impact,” he absolutely neglected the Israeli attacks on civilians in Gaza and the UN building there, despite numerous calls for treating these attacks a “crime against humanity.” The last of which was the report presented by Mr. Falk, the UN expert on the Palestinian territories on March 24, 2009 at the Geneva UN Human Rights Council.

These main criticisms of the infringement on states’ sovereignty, the broad powers of the court, and the excessive powers of the prosecutor were accompanied by other specific reservations from the three permanent members of the Security Council, namely the U.S., China, and Russia. The former, under the Bush administration, feared the submission of U.S.  peace-keeping and humanitarian missions working abroad to the court's jurisdiction in the countries that were court-members. On the other hand, China and Russia rejected allowing crimes of internal armed conflicts to fall under the jurisdiction of the ICC; believing that “crimes against humanity” are prohibited in time of peace. It is easily to explain the two latter fears especially with regard to their poor human rights records, especially in issues related to minorities.

The leaders of developing countries also have additional reasons for not supporting the ICC. The first related to the absence of any agreement among the members of the international community on how to reach the proper balance between achieving justice and attaining peace; for instance, the hard debate between judicialization of politics and politicization of the judiciary. The second reason relates to the double standard of the UN Security Council in using its powers under Article VII of the Charter of the United Nations to refer cases mentioned under Article 5 of the Rome Statute to the court. The third reason pertains to the resistance to any changes that can undermine the underpinnings of the traditional international law, especially the principle of states’ sovereignty, which had been developed by the Treaty of Westphalia in 1648.

From the above mentioned criticisms, we can reach a conclusion that both Sudan and other countries refusing to sign the Rome Statute share the same fears towards the powers of the ICC, with the existence of two main qualitative differences. First, that lack of political power worldwide and the support of the major powers in the UN. Second, its failure to deal efficiently with the crisis, which was considered among the worst since the Second World War and its tendency not to use international media to explain its position from the rebels and how the government would deal with them.

 

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