The International Criminal Court was created with the noble goal of prosecuting the worst imaginable crimes, including genocide and crimes against humanity. However, the events of recent years have shown that it simply did not meet such expectations. This is reflected in the growing number of voices questioning the ICC on two main grounds: legitimacy and effectiveness.
Since the creation of the ICC, critics have questioned its legitimacy as a global, impartial body because of the perceived hegemony of the West over the ICC’s proceedings, which stems from the appeals of the UN Security Council. Over the past two decades, the ICC has been repeatedly criticized for mainly targeting Africans and turning a blind eye to atrocities that occur outside of Africa. Most of the current cases are focused on African countries. The leaders of these countries have denounced this apparent bias for exposing them to excessive harassment. The ICC’s apparently narrow and possibly biased focus on Africa significantly undermines its legitimacy, especially since the Court is supposed to embody the principles of internationality and universality.
In addition to criticizing the ICC’s focus on Africa, the referral procedure that powers the Court’s jurisdiction has also raised accusations of illegality. Two forms of referral of cases to the Court have caused the greatest controversy: those received from the UN Security Council and those received from participating States. The UN Security Council’s referral powers have come under serious attack, as three of its five permanent members-Russia, China and the United States – have not signed the Rome Statute. However, the Council states have the right of veto and the right to decide when the Court may conduct an investigation, even though they themselves are not subject to the ICC’s jurisdiction. Another problem arises from the recusal of Participating States, which are open to abuse by countries seeking to distract from their own crimes and use the ICC as a means of discrediting the opposition and promoting their own political agenda. Ultimately, the referral system to the ICC leaves too much room for exploitation and abuse by several states. The ability of these states to exercise significant control over referral systems to the ICC when they are not themselves parties to the Rome Statute undermines the Court’s legitimacy and perceived impartiality.
When it comes to initiating and executing trials before the ICC, there are recurring practical problems that hinder the Court’s mission in two ways: by delaying the administration of justice, or by denying it any chance of achieving justice at all.
The ICC proceedings are clearly moving slowly. Investigations can last for years or even decades; for example, the Uganda-Case, which began in 2004,is still being proceeded. Such delays are a major challenge to ensure that victims receive the justice they deserve.
In addition to these administrative shortcomings, the ICC’s reliance on the cooperation of member states in the enforcement of warrants and the extradition of fugitives may pose an even greater threat to the organization’s effectiveness. Any court that must rely on the tacit consent of a third party to initiate proceedings cannot truly be considered an effective judicial body. Since individual states can simply ignore the ICC’s request, they have the potential to significantly interfere with the effective administration of justice.
JONDE.W- Baudouin NYOBE