ICC Forum

A Single Comment — Permalink

Comment on the Withdrawal Question: “In recent weeks, the governments of the Republic of Burundi, the Republic of South Africa, and the Islamic Republic of the Gambia have announced their intention to withdraw from the ICC. How will this affect the emerging system of international criminal justice in the short and long term? What steps might be taken to strengthen that project?”

Exercising Restraint: ICC Cooperation with the Security Council and Regional Courts

While the International Criminal Court (ICC) can be construed as a unifying institution to investigate and prosecute crimes at an international level, many countries believe that the ICC is inherently biased in favor of Western countries, leading to possible defection from the ICC. To minimize defection and perceived bias, the ICC can bind its jurisdiction specifically to referrals from the United Nations Security Council (UNSC). Moreover, rather than moving forward with more investigations, the ICC could instead focus on coordinating with regional courts to address crimes.

To dispel notions that the ICC is biased against certain countries, the Court can limit its investigations to referrals by the UNSC. Since the ICC’s inception in 2002, many African leaders now distrust the Court due to a perceived bias against African countries. Indeed, every one of thirty-two publicly issued indictments are of African individuals.1 Moreover, African leaders note that while the ICC has indicted numerous African individuals, the Court has not been involved with recent atrocities outside of Africa, such as war crimes during the Syrian Civil War, which began in 2011.2 Rather than focusing on indictments or opening more investigations, the Court can exercise restraint and rely instead on UNSC referrals. The UNSC requires a level of precision and consideration not present in a state party referral or the Prosecutor’s proprio motu power.3 Indeed, the UNSC must first determine that a “threat to the peace” exists under article 39 of the Charter of the United Nations and only then can it proceed to take action under either article 41 or 42, which governs whether to use force.4 Given the UNSC’s referral to the ICC and implicit agreement that an international response is required in a situation, the UNSC would likely be more willing to cooperate with the ICC to impose sanctions against the offending state party.5 By exercising restraint and deferring to the UNSC’s referrals, the ICC would be able to counter states’ beliefs that the Court is simply an extension of Western imperialism.

Expand

In addition to greater coordination with the UNSC, the ICC can simultaneously pursue cooperation with regional courts, such as the East African Court of Justice. The ICC can combat possible criticisms of bias and impunity by working closely with regional courts, which would allow the Court to be more attuned to regional beliefs and to consider the nuances of issues, such as human rights, within a specific country’s sociopolitical framework.6 Further, with greater cooperation, the ICC would likely bolster the legitimacy of the regional courts, while also diminishing the perception that the Court is simply imposing its own values on any state party.

In deferring to UNSC referrals and working closely with regional courts, the ICC would be able to strike a balance between granting an exemption from punishment and being perceived as overly aggressive or biased towards certain states parties. Additionally, greater cooperation between regional and international institutions can result in greater efficiency in addressing wrongful conduct, as well as a better understanding of the political and cultural nuances within each country.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

  1. 1.

    Adam Taylor, Why so Many African Leaders Hate the International Criminal Court, Wash. Post, Nov. 6, 2016, available online. ↩

  2. 2.

    Id. ↩

  3. 3.

    Rebecca Bowman, Lubanga, the DRC and the African Court: Lessons learned from the first International Criminal Court case, 7 Afr. Hum. Rts. L.J. 412, 443 (2007), available online, archived. ↩

  4. 4.

    Id. ↩

  5. 5.

    Cooperation and the International Criminal Court: Perspectives from Theory and Practice 167 (Olympia Bekou & Daley J. Birkett eds., 2016). ↩

  6. 6.

    Tatiana E. Sainati, Divided We Fall: How the International Criminal Court Can Promote Compliance with International Law by Working with Regional Courts, 49 Vand. J. Transnat’l L. 191, 236 (2016), available online, archived. ↩

Collapse