International Criminal Courts: Prosecution of War Crimes, Genocide & Beyond - Essay Sample

Introduction

International criminal courts involve formed treaties between nations under the jurisdiction of an international organization like the United Nations that includes permanent institutions and ad hoc tribunals. The International Criminal Tribunals operate in the principles of prosecution of individuals with serious crimes of international humanitarian laws, among other war crimes, genocides, crimes against humanity. The tribunals run parallels with the court system as the former are formed to deal with specific matters, helps to solve disputes by decision making, and are not part of the court system. The latter deals with all types of cases and involves trials before a judge or panel of judges like the jury and magistrates court. The UN has a vast number of international courts and tribunals with varying degrees, ranging from the ICJ as the principal organ to the ad hoc criminal tribunals that were established by the councils of security. They also have the ITLOS and ICC that were conventionally built and drafted by the UN and are currently independent entities. The criminal tribunal s and the courts have therefore been competent over the years in settling legal disputes and diving advisory opinions on legal issues.

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Theoretical Perspectives on the Effectiveness of the International Criminal Courts and Tribunals

The aspect of the sanctioning of international law by international politics does not go well with lawyers as such political influences should never be entirely refuted or overlooked. Politics and the international rules are viewed in the realms of pursuance of divergent agendas owing to its forces in conflict resolutions in the international arenas. That informs the conflicting views on their conflicting roles, albeit their respective schedules do not always overlap. That is since both politics and laws can never be immune from influences from various players, thus informing their share of fascinating, complex relationships.

In the realism and idealistic perspectives, there is fundamental regard in the separation between politics and law with the relation to fair and just legal system. Hankins portrays it as the distinction between politics and law is only part of the truth, and doctrine is regarded as politics in a more tremendous, more profound sense as political actors formulate law through their political ends and procedures. Therefore the new regulations are owed to political forces that influence the state's behavioral law (Akhavan 2019:648).In realism perspectives, there is no dismissal of the indisputability of the international law as an instrument of politics and power as its appearances can be viewed in the aspects of either nemesis of power or its handmaiden.

However, contrary to realist perspectives, there exists liberalism and idealisms in the international arena owing to the focus of the international criminal courts on individuals portrayed as political enemies and tried according to their criminal acts before they are purged. That influences the stigmatization of actions committed by such individuals and not the individuals themselves. The acts committed are usually universally portrayed offensive in various positive law modes like statutes and international treaties of international courts through domestic legislations. The modern ICC ensures that the criminal is acquainted in the scenarios where cases against them do not receive enough evidential proof or if it is an unfair trial or ruined by the prosecution. Most tribunals and courts have seen a vast majority of acquittals as proof that the acquittal prospects are not just theoretical possibilities but indeed exist.

Additionally, there exist dominant powers by the state in the international community, on state actors, and international order in pushing for idealism in international relations. That has been evidenced by the non-governmental organizations, who, since 1960, have achieved success in pressure application, coupled with the persuasion of states in cooperation with the efforts of the international criminal justice (Rodman 2008: 540). Besides, idealism has also been filtered by the human rights movements through the international order. That has ensured that there is consistency and insurance and international human rights recognition by the international criminal tribunals and courts, coupled with the competency of candidates in the realms of international law like human rights law and international humanitarian law. Lastly, in spite of power influence resulting from idealism, the international criminal tribunals and courts are founded based on sovereign independence, equality of states, together with the provision of counterweight to abuses of power hence its declination to granting formal recognition to superiority structures.

The International Criminal Court

The ICC was created in 2002 to end the impunity of the most severe crimes that affect the national community, coupled with the prevention of such crimes. It can persecute individuals all over the world so long as the suspected criminals are citizens of states with the ratified ICC states (Jowad 2015:164). The court is only mandated to investigate crimes that were committed after 1 July 2012 when it came into force (Jowad 2015:164). In spite of its agendas of the ethics and human nightspots, the main ambition is for the punishment of individuals and crime prevention per the international organizations', states,' and peoples' subscriptions.

Background

The ICC involves and intergovernmental organization and international tribunal based at The Hague, Netherlands. Its functioning began on 1 July 2002 when it entered into force in the Rome Statute (Jowad 201:165). The Rome Statute serves the ICC's fundamental and governing document as a multilateral treaty. It states that are parties to the Rome statute automatically become member states of the ICC. The total number of member states by November 2019 was 123, with 42 sates presented as non-party and non-signatory states. It constitutes four principal organs; the judicial divisions, the presidency, the registry, and the prosecutor(Jowad 2015:169). The presidents portrayed as the most senior judge chosen by the legal division, who are his/her peers that hears cases before the court. The prosecutor is involved with the investigation of crimes and initiation of proceedings before the judicial division ad he heads the office of the prosecutor. The registrar directs the registry and is mandated to manage all the ICC's administrative functions in the detention unit, headquarters, and the public defense office.

So far, there have been 14 official investigations by the prosecutor's office, coupled with an additional ten plemininery examinations, with the indictment of 44 individuals (Jowad 2015:169). The individuals indicted among others include Omar Al-Bashir, former Sudanese president, Joseph Kong, Ugandan rebel leader, Uhuru Kenyatta, the Kenyan president, Muammar Gadhafi, Libyan leader, Jean Pierre Bemba, D.R.Congo vice president and the Ivorian president Laurent Gbagbo. However, it has been criticized by civil society. It states on the realms of its objectives on accusations, jurisdictions, questioning of fairness of the selection of cases, bias, and doubts on its effectiveness.

The International Criminal Court in Retribution

The ICC, through symbolism, has enhanced retributive justice in the quest to address the concerns of the victims. They have managed to bring he idea of justice into local and political arenas like in the case of Namibia, where it used by the domestic actors to advance reconciliation claims on the victims of crime. In Zimbabwe, where it has important grassroots support. Additionally, some victims have always preferred retribution to justice restoration (Gegout 2013:811). However, the ICC has not been sufficient injustice retribution owing to its non-determination, bias, and failure to provide protection. It has failed to ensure justice and addressing the needs of the victims, and the few sentences provided are limited and bias. Since its enactment in 2002, the ICC has only indicted 30 people, making the victims have preferences for the local justice systems to the justice meted by the international court (Gegout 2013:811). Most victims are in favor of justice restoration through reconciliation, a notion not spelled in the ICC, which as a preference for punishment, thereby informing its consideration as a neocolonial body. Additionally, many victims in conflicted areas underscore ICC's detachment from their welfare and concerns of living peacefully and insecure environments. They feel that the ICC has parallel priorities to theirs owing to the ICC's worries on the fights for justice rather than the victims'' struggles against poverty.

The International Criminal Court and Deterrence

The ICC has been effective in the deterrence and prevention of future crimes. That is evidenced by the indictment of state heads in the quest of ending impunity among leaders who do not protect their citizens. They do this through their implementation of the concept of "responsibility to protect" that they enacted and agreed upon in 2005 by the General assembly of the UN (Gegout 2013:809). The existence of the ICC has also discouraged the militia from exercising violence and encouraging the national courts to act against criminals and politicians as they change politics within member states. That has been observed through the Ivorian head of state Laurent Gbagbo who stopped violence in his country for fear of the ICC (Goldsmith & Krasner 2003:52). However, its effectiveness of deterrence of crime can, at times, be thus not guaranteeing its effectiveness in crime deterrence. That is since some heads of state with authoritarian regimes are still in power as Laurent Gbagbo of Ivory Coast, albeit the offer of the amnesty and the threats of the ICC did not step down from office and Robert Mugabe was also officially reelected as the Zimbabwean president in spite of his authoritarian regimes. Similarly, Syrian leader, Asaad, albeit the issued report on their abuses by the UN, continued with violence in his state. As if that is not enough, Mali ratified the ICC treaty in 2000, yet the rebels and troops of government could not be prevented from the crime commission in Northern Mali in 2002 (Geguet 2013:809).

Similarly, some indicted people by the court have continued with their criminal activities, as evidenced by Omar Bashir in Sudan and Moammar Gadhafi of Libya as the rebels continued committing crimes. The indictments have always discouraged peace negotiations. Since potential criminals are never legitimate actors and are not able to travel abroad without arrest attempts. Many actors like the Arab League AU And group of 77 are always afraid of the consequences of the ICC's investigations. Moreover, the state actors may fear the arrest of the rebel leaders in their countries if the latter knows the crimes that the former supported. Like in the case of Basco Nangana of Rwanda whereby Rwanda was afraid of his arrest for fear that he could confirm the confidential UN reports of October 2012 that indicated that Uganda and Rwanda supported the M23 rebel movement. The arrest, albeit maybe positive for justice it would deter peace (Geguot 2013:810).

The International Criminal Court and Conflict Termination/Prevention

Over the years, the international court has been ambitiously aimed at establishing peace through the insurance of global justice. Any peacebuilding that ignores the truth is likely to fail; it is no wonder the ICC was created. Sentence forms a fundamental democratic foundation, coupled with international democratic institutions in conjunction with the local peace and negotiations. However, the in...