In Search of Hard Evidence for the International Criminal Court's Significant Contributions to International Law

Introduction

If one considers the current U.S. policy towards the International Criminal Court (ICC) by the current administration, it becomes apparent that the ICC is subjected to an ordeal of fire. It is also evident that there is a discrepancy between the depiction of the administration - of the ICC being an international threat and the self-perception of the court as a "court of last resort" that is "capable of punishing perpetrators of the worst offenses known to humankind." Furthermore, the harsh political rhetoric from the U.S. as well as Burundi's withdrawal and South Africa's declaration to leave imply an increasing discontent with the ICC and raise doubt as to the effectiveness, legitimacy and overall necessity of the court. It is the position of this paper to counter this notion of dissatisfaction by drawing attention to the contributions of the ICC on international law (Cakmak, 2017). Chiefly, the ICC significantly contributes to the institutionalization of International Criminal Law (ICL) and thereby has a positive impact on international law (IL).

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To substantiate this claim, the focus of this paper is on the ICC's jurisprudence and assessment of its impact and shortcomings on IL. In this regard, it should be noted that it is not the purpose of this work to deliver a comprehensive analysis of all the decisions of the court. Given the constraints of the paper, the scope of analysis is limited to two major arguments which are bolstered with case studies. First is the examination of the extent to which the ICC's jurisprudence expanded upon or clarified substantive and procedural law matters, even though I acknowledge that the performance of the court has left much room for improvement. Hence, the basic premise institutions associated with treaties, including domestic ratification processes and the default rules of treaty interpretation, can provide valuable information that improves cooperation and coordination between states Thereby, this paper encourages a paradigm shift by converting the perspective and assessing the important role of the court. In this regard, this paper is constructivist.

First, it is important to understand what international criminal law is (ICL). International Criminal Law is a branch of public international law which criminalizes the most extreme violations of international humanitarian law and human rights (Vos, n.d.). What it gives criminal suctions that apply to all perpetrators, from planners of such crimes to those who authorize them. In this regard, persons holding office in the highest military levels and political offices can be held liable in such accounts ("International Criminal Law - Diakonia," n.d.). For example, the 2007/2008 post-election violence in Kenya witnessed the massive violation of human rights and the international humanitarian law. As a result, the ICC prosecuted six persons responsible for the violence. Among them were Francis Muthaura, the head of the civil service and Hussein Ali, a former Police commissioner in Kenya (ANTHONY KARIUKI, 2010). These are just examples of people held liable for such violations.

Notably, not all violations of international law are considered as a criminal (Claus, 2009). Examples of most of these violations considered as international crimes include crimes against humanity, genocide and war crimes (Henriksen, 2017). The sources of this law used by international and criminal courts are treaty law, general principles of law, subsidiary source, customary international law, and judicial decisions (Sivakumaran, 2018). In this sense, the international criminal court has many treaty sources that guide the international criminal court in its proceedings. These conventions include the Rome Statute of the International criminal court, the 1977 Additional Protocol II to Geneva conventions (AP II), European Conventions on Human Rights, the Great Lakes Pact and Protocol, and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (New York, 10 December 1984) ("International Criminal Law," 2009). These treaties can act as direct sources of international criminal law in different states. These treaties have led to the institutionalizing of international law.

Before the establishment and the enactment of the Rome Statute, different institutions of international criminal law had been established to deal with specific cases that have been characterized by the massive violation of human rights ("Rome Statute of the International Criminal Court, 1998," n.d.). The tribunals were established to deal with specific occurrences in different regions in the world. They include the International Criminal Tribunal for the former Yugoslavia, International Criminal Tribunal for Rwanda among others. These countries have historically witnessed injustices and massive violation of human rights ("Conclusion," n.d.). Also, different domestic tribunals have been established to handle cases on international crimes such as the International Crimes Tribunal (Bangladesh).

The International Criminal Tribunal for the former Yugoslavia was established under the United Nations to prosecute criminal cases during the Yugoslav war. The tribunal was located in The Hague, the Netherlands as an ad hoc court (Tochilovsky, n.d). The court was established under the United Nations Security Council. It tried cases that included genocide, war crimes and crimes against humanity. The institution existed up to November 2017 with the final judgment made. The International Criminal Tribunal for Rwanda was similarly established in 1994 to handle criminal proceedings following the Rwandan genocide. These tribunals have been crucial in the realization and protection of international law.

The Rome Statute of International Criminal Court established the international criminal court. Also referred to as the International Criminal Court Statute, it was adopted after the conference held in Rome on 17 July 1998 ("Rome Statute 20th anniversary 2018 | Coalition for the International Criminal Court," n.d.). The enforcement of the law was effective from 2002 when the international criminal court was officially established. The treaty went along was in the institutionalization of international criminal law ("Rome Statute at Twenty (1998-2018): 10 Challenges to an Effective and Independent International Criminal Court," n.d.). Though the statutes were signed by 123 states at its inception, it spelled out the functions and the structure of the court. The court's jurisdiction of the court was spelled out according to the statute ("UNTC," n.d.). It establishes the core international crimes; war crimes, genocide, crime aggression and crimes against humanity. The court was limited to only investigate and prosecute the four crimes on condition that the member countries were unable to deal with them by themselves ("Rome Statute of the International Criminal Court, 1998," n.d.). Also, the jurisdiction of the court is limited to only those countries that are committed to the statute.

Secondly, the European Convention on Human Rights was adopted in 1950 as an international treaty to allow the protection of political freedoms and human rights among the European Union member countries. It was enforced in 1953 and became a requirement to ratify it before joining the union ("What Is The European Convention on Human Rights?" 2018). The treaty was drafted after the end of the Second World War to promote democracy, the rule of law, and human rights which were highly violated during the war period. Chiefly, the convention guarantees specific rights among the 47 member states of the Union. It was instituted to give effect to some rights provided for by the Universal Declaration of Human Rights by making them abiding ("What is the European Convention on Human Rights?" n.d.). These rights include freedom from torture, the right to a fair trial, the right to life, the abolition of the death penalty among others. Also, the convention gave room for the establishment of the European Court of Human Rights. The court applies the guarantees provided for by the treaty. The treaty is one of the sources of International Criminal law in legal proceedings by the international court of justice.

The Convention on the Prevention and Punishment of the Crime of Genocide identifies Genocide as one of the international crimes. It gives a clear definition of the term genocide which is later borrowed in the Rome Statute ("Treaties, States parties, and Commentaries - Convention on the Prevention and Punishment of Genocide, 1948," n.d.). The crime is defined as any act intended to destroy in part or whole, a religious, national or racial group. According to the statute, it is not only the acts that are punishable but also the conspiracy to commit the crime, public incitement, the attempt or complicity in the offense ("United Nations Convention on the Prevention and Punishment of Genocide << World Without Genocide -," n.d.). What differentiates the crime from crime against humanity is the destruction of an identified group either as a part or as a whole. The treaty institutionalizes the crime which warrants for prosecution either by the International Criminal Courts or the local tribunals which borrow from the treaty.

Further, the Rome Statute defines crimes against humanity in article 7. The notion refers to crimes that include extermination, persecution, rape, murder, or other similar acts. They are characterized by willful cause of suffering to an individual or serious injury inflicted to him/her either mentally or physically. The acts are directed against a civilian population ("International Criminal Law," 2009). Also, the crime is characterized by a widespread or systematic attack of such civilian groups. For example, the mass forced deportation from Katanga Province in 1993 of Kasaians committed without armed conflict does not amount to the crime. The massacre of Hutu refugees in 1996-1997 was committed within the armed conflict, and such are categorized as war crimes. Therefore, the crime is majorly characterized by the use of armed conflict against a civilian population.

To What Extent Has the Existence of the Icc Prompted Domestic Legal Reform? In What Sense?

Despite the establishment of the international criminal court to interpret, make and apply international law, the ICC relies on the domestic political structures and legal systems for implementation. The ICC hence depends heavily on domestic legal institutions in crucial ways. First, it exercises "complementary" jurisdiction. This concept implies that the ICC only prosecutes individuals when the member states are not in a position to do so. Secondly, the court depends on the cooperation with the domestic institutions and officials in the implementation of its decisions. These decisions include gathering evidence, securing witnesses to gaining custody of the victims (Kleffner & Nollkaemper, 2004). To effectively carry out their role in the ICC, member states should enact legislations to address the aspect of complementarity and cooperation.

Before the enforcement of the Genocide Convention, the enforcement of international criminal law was entirely under the jurisdiction of the domestic legal and judicial systems. There were no international legal tribunals in existence at the time, and this called for the domestic courts to perform the duty. The Convention against Torture (CAT) requires each state to establish a system of domestic legal prosecution to ensure that under the law, all offenses of torture are illegal ("OHCHR | Convention against Torture," n.d.). The states are supposed to make sure that these offenses are p...