Structural Impracticalities of the Icc Affecting Prosecution of Sitting Heads of State: a Case Study of Kenya and Sudan

Abstract

The International Criminal Court as 'giant without arms and legs' who 'needs artificial limbs to walk and work .... "1 In 1998, a groundbreaking idea turned into reality, and 50 years of debate ended as the first International Criminal Court (lCC) was established as a result of the Rome Statute. This judicial body took shape and created the foundation of a permanent COI:rt to prosecute persons that committed war crimes, crimes against humanity and genocide. The idea of an international criminal court came about from many factions. At the end of World War IT the Allied Powers responded swiftly after the discovery of crimes committed by the Axis Powers. They therefore created the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis and the Charter of the International Military Tribunal (IMT). The TMT contained the first definition of crimes against humanity, which would later be included in the Rome Statute and fall under the jurisdiction of the ICe. Specifically in Article 6(c) the definition was as follows: "Crimes against humanity: murder, extermination, enslavement, deportation, and other inhumane acts committed against civilian populations, before or during the war; persecution on political, racial or religious grounds in execution of or in connection within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated." Shortly after, a similar document was drafted in response to the crimes committed by the Far East Axis powers, namely Japan, labeled the International Military Tribunal for the Far East. These two tribunalsIaid the groundwork for the prosecution and convictions of soldiers and commanders that committed crimes in World War II. The importance of these tribunals comes in its direct definition of crimes against humanity and war crimes, and the initial recognition for the need of a global criminal system. Finally in 1998, a Conference was called in Rome tc discuss the possibility of a permanent International Criminal Court. Many struggles and oppositions needed to be overcome in order lAntonio Cassese. 'When May Senior State Officials be Tried for lnternational Crimes') Some Comments on Congo v. Belgium Case"(20~2) 859 European Journal ofJnternational LaIl'J3,853. v adopt the Rome Statute and create the lCC. Despite all of these differentiating opinions and opposing views several compromises were made, and in the end the treaty passed with a lopsided vote of 120 to 7, with 21 countries abstaining. The most remarkable thing about the Rome Statute and the creation of the TCC was the tact that the treaty required sixty of the signees to ratify it before it would be entered into agreement, and the ICC could be created as an international entity of criminal law. Many speculated that it would be a decade before this judicial body could be created. but a mere four years later, the 60th state ratified, ancl the ICC was created. It opened its doors in July of 2002, and by the following March eighteen judges were nominated and the first international prosecutor, Luis Moreno Campo, was elected. The ICC is currently working on seven open cases in Sudan, Uganda, the Democratic Republic of Congo, the Central African Republic, Kenya, the Republic of Cote d'Ivoire and Libya, with many more situations being monitored for possible further indictments. It took many years of law evolution, and a series of horrendous events to justify establishment of an international criminal court, however, based on the support it received, not only at the Rome Conference, but also the continued ratification by nations, it is evident that the need for the court is considered important by many nations. At the time of its creation, observers were hopeful that rule of law could help constrain humanity's worst impulses, a sentiment that, today, may seem foolhardy. Yet, where else would victims turn? Ruthless tyrants and their henchmen have killed, raped, and tortured innocents, and few, if any. international institutions have been able to stop them or provide justice after the fact. The ICC has very real and sometimes infuriating limitations. Convictions are too few. cases are too long, and the backlog is too high; frustrations inside and outside the court grow. But so does the demand for the lCC's help. Whether it be in Syria, Palestine, North Korea, Sri Lanka, or in reaction to U.S. ancl British activities abroad, the ICC's problems have not kept governments and people from urging it to get involved in more and more places. Thus, the promise of the ICC remains intact, despite the challenges it faces. This paper looks at the conceptual theories in customary international law and how they have sneaked into the international criminal justice system despite the tact that the Rome Statutes was VI · set up for the sole purpose of accelerating justice for the victims by legally avoiding the rules of customary practice such as absolute immunity or functional immunity.