The Ineffectiveness of the Rome Statute

Syria. Egypt. Libya. The Democratic Republic of Congo. These are just a few of the countries where international crimes continue unabated. Nations where the perpetrators of impunity continue with their activities confident that there is little that the international community can do. In Kenya, two international crime suspects were elected to the two highest offices in the land[1]. Which then begs the questions: What went wrong with the enforcement of the resolutions of the Diplomatic Conference of Plenipotentiaries convened in Rome in 1998? [2] Apart from creating an administrative body based at the Hague and thousands of well paying jobs for the boys what else is there to celebrate about this treaty? 

For a treaty whose stated aim is to ensure “that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured”[3] and “to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes”[4], one would be tempted to state that the treaty has failed. More than a decade afterwards, and with one sole judgment at hand, it is not all bright for the ICC.

First, the major world powers are not yet signatories to the Rome Statute. China, Russia, Israel, and most of the Arab world remain uncommitted to the Rome statute. Even the USA-the leader of the free world-is surprisingly still not a State Party to the Rome Statute. These countries thus remain outside the jurisdiction of the International Criminal Court. Without such world powers one would be forgiven to sneer at the thought that the Court is the world court it is made out to be.

Secondly, the African countries-which comprise majority of the State parties to the Statute-have had a well documented fight against the ICC. The Court, they say, is perpetuating neo-colonialism. The evidence for this is the uncomfortable truth that all the perpetrators are Africans. Not a single non African has been charged before the ICC. Not one. Yet, as any honest observer would agree, the situations where international crimes have occurred have not been localized to the continent. This, by itself, is not to say that the court is anti African; only that this argument will continue to gain traction as the Court loses the PR fight in a huge portion of the membership. Again, the Rome statue, under the principle of complementarity, only gives the court the jurisdiction to deal with international crimes where the host state is unwilling or unable to investigate or prosecute these crimes. In a resource poor country –as most are in Africa-where even the right to counsel remains a mirage the ‘inability to investigate/prosecute’ is a given.

Third, most of the major crimes still remain outside the jurisdiction of the ICC. Terrorism, for example, is an offence that would be more easily recognizable by half of the world’s population than, say, a war crime. The court however cannot adjudicate the former but it has powers to hear cases involving the latter. Cyber crimes, piracy and child trafficking are more crimes that will help the court gain more traction with the ordinary world citizen.

Fourthly it still does not make sense that there has only been one judgment since the court was formed. Just one! Granted, prosecuting international crimes is not a walk in the park. But even so, ten years is an unacceptably long time for a world court-with all the resources at its disposal. It makes the courts in most developing nations look very efficient. The effects of the delay has been well enumerated as follows:

Delays in bringing perpetrators to justice can diminish the deterrent value of such prosecutions, undermine the quality of the evidence in the case, allow perpetrators to continue living in impunity and continue committing crimes, discourage and marginalize the victims, and lead to a squandering of the world’s interests and attention which will, in time, be diverted to other crises[5].

Little wonder that the victims of these crimes have lost hope on ever getting justice from the ICC. Justice delayed is justice denied.

Lastly, the lack of an independent enforcement mechanism has left the court at the whims of the leaders of its member states. This, in turn, means that the effectiveness of the court is dictated upon by the politics of the day. The arrest warrants issued against President Al Bashir are a good example where the dignity of the ICC has been severely eroded. Without an independent police force of its own the ICC has remained a paper tiger and all bark but no bite at all[6]. An international court surely deserves a better status than this.


[1] For reference on the impact of this event to the effectiveness of the court  go to http://chicagomonitor.com/2013/03/kenyatta-and-the-ineffectiveness-of-the-icc/

[2] At this conference the Rome Statute of the International Criminal Court was adopted and the International Criminal Court provided with the necessary jurisdiction.

[3] Preamble to the Rome Statute of the International Criminal Court

[4] Ibid

[5] Whiting Alex, In International Criminal Prosecutions, Justice Delayed Can Be Justice Delivered, 50 Harv. Int’l L.J. 323 (2009) at 326

[6] Article 86 of the Rome Statute obligates the State parties to co-operate with an ongoing investigation or prosecution. However, this provision has been routinely ignored by some State parties with little repercussions.

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One thought on “The Ineffectiveness of the Rome Statute

  1. Really interesting discussion, thanks for sharing. The real litmus test at the moment seems to be the conflict in Syria, which demonstrates the Court’s extremely weak position. I don’t see how the Court can remain a credible legal institution charged with the prosecution of international crimes in the face of extreme acts of violence targeting civilians in Syria. No doubt the issue will be discussed for some time to come.

Thoughts

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