International Criminal Court

International Criminal Court


The International Criminal Court (ICC) is the foremost internal tribunal dealing with criminal activities considered “crimes against humanity” in regards to trying perpetrators accused of committing grave international crimes within its legally defined jurisdiction.  From the time of its creation through the Rome Statute, the ICC has successfully prosecuted a number of cases especially in Africa like the Charles Taylor. However, as evidenced by one of the of the on-going cases-The Kenyan Case after the aftermath of the post-election violence that ensued after the results of the 2007 December elections-there is growing concern that the case is  a puppet of the West. In this regard, many see the Court’s actions as selectively targeted at Africa.  This research paper critically appraises the court’s role in in ensuring that universal implementation of human rights is realized.



            In the Kenyan case in currently under way at the ICC, the first case involving the current president was terminated due to lack of evidence while the current case against the current deputy and a radio announcer is obviously headed the same way (Materu 2014). These two cases and its inability to effectively deal with the crisis in Syria have led many to question the relevance of court in regards to whether or not the court is indeed adept to ensuring the universal enforcement of human rights argues (Nichols 2015).  Additionally, the criticism of its role in international justice dispensation has been heightened by the lengthy investigations as well as prosecutions in addition to overreliance on evidence without critically interrogating the same from third parties like in the Kenya case notes (Materu 2014). The exercise will examine three principle reasons present the principle reasons for the Court’s establishment with to accepting or rejecting the hypothesis- the International Criminal Court is a significant innovation that ensures the universal enforcement of human rights.

Principle Reasons for The International Court’s Establishment

The aspect of international law developed to promote as well as safeguard human rights within domestic, regional and domestic levels is stipulated by the International Human Rights Law (Moravcsik 2000). This law is primarily comprised of different treaties between nations and it is thus designed to avail binding legal effects between parties that have ratified and domesticated the same in their respective jurisdictions.  It is on this background that the International Criminal was founded in 1998. During the summer of this year, the United Nation’s General Assembly assembled its members in Rome for the famous Rome Conference. The aim of the conference was to informed by the crucial need to create a global body to deal with “crimes against humanity” given the ethnic cleansing that occurred in the Former Yugoslavia and the Rwanda Genocide  writes (Kirsch 2007).

Unlike previous cases where the international community created ad-hoc tribunals to deal with the rising violations of the Geneva Convention, the International Criminal Court was the first of its kind created through international treaty that effectively allowed all sates in the world to partake in its creation (Cassese 2015).  During this period, there was a genuine initiative by all members that indeed the court would finally ensure the universal enforcement of human rights in a manner consistent with the needs of a dynamic world.  In this research article, an overview of the Court will be provided in regards to its effectiveness in promoting universal enforcement of human rights, by focusing on the primary reasons informing its creation with a view to justifying its continued existence.

The main reasons informing the courts establishment are varied but largely encompass: the need to realize just for everyone; to effectively end impunity; help in ending conflicts; to address deficiencies inherent in the workings of the ad hoc tribunals; to assume responsibility in matters national jurisdictions are ill-equipped or unwilling and/or unable to prosecute; and to act as a deterrence to potential war crimes (United Nations 2016).

Ensuring Justice for All

Going back to the Kenyan court, it is evident that the court lacks or is unable to guarantee that all parties will receive justice. This case will form a critical focal point for this research exercise given the ramifications it holds in terms of the continued existence of the court. As a result of the shoddy nature the Court has handled the case, the African Union as well as Civil Society assemblages are convinced that the Court is inept to fulfilling its primary mandate of “ensuring justice for all”. In the Kenyan Case, the focus has been on the accused persons at the expense of the victims. With the last case now heading for termination given the prosecutor’s insistence that recanted evidence should be used despite the “the Assembly of State Parties” passing resolutions to the contrary indicates that the court is selective in its enforcement of global human rights for both the perpetrators as well as the victims. In law, recanted evidence cannot be used as it will it disadvantage and prejudice the accused and therefor limit the chances of the victims getting justice.

Victims of crimes considered violations against basic humanity tenets are people who have suffered violations of their basic human liberties during sate or international conflicts. These include the most susceptible members of the society such as women and children. Despite the fact that history notes that the court has succeeded in prosecuting perpetrators of heinous crimes, this has not always been the scenario in instances where government or senior officials are involved like in the Kenyan case where the primary suspects have been Kenya’s President and Deputy President.  Cases of this nature are referred to the court in instances where national justice systems are ether ineffective or else more likely to conduct bias proceedings which will in turn result in the disfranchisement of victims (United Nations 2016).

Though an event that took place prior to establishment of the Court, the events that followed the end of the first World War in regards to allegations that German officials had committed  crimes regarded as crimes against humanity exemplifies the limitations an international approach to addressing the needs of victims in such instances surmise (Kaleck et al 2006).

Despite the overriding presence of the Court coupled with its broad jurisdiction reach, mass atrocities still persist since the conclusion of World War I effectively escalation the number of victims affected by the aptly referred to crimes against humanity (Reidy & Sellers 2010). Its role in regards to ensuring that victims receive justice questions its ability to enforce universal human rights considering the fact that conservative estimations place the number of victims of heinous crimes since the creation of the ICC at 170 million at the least (Casseset 2015).  In other words, the court has not achieved much in terms of protecting civilians against genocide and war crimes as evidenced by the ethnic cleansing taking place in Iraq and Syria led by the Islamic grouping- the Islamic state. Further, Burundi is currently facing a civil strife largely perpetuated   by the current regime with the potential; of turning into genocide. The ICC is surprisingly silent on these happening despite Burundi being a signatory to the statue that established the Court- the Rome Statute (Bailliet & Aas 2016).

A critical look at the provisions of the Rome statute indicate that the court is supposed to play the role of a deterrent to such crimes as this is the only way it can effectively ensure justice is delivered and seen to be delivered to the victim. The reality is however that the courts deal with such grave matters as an afterthought thereby bringing into disrepute its ability to effectively enforce universal human rights (Hafner-Burton 2012).

It must be appreciated that prosecution of perpetrators in a timely manner is the first step in ensuring that justice is served to victims as well as ensuring that the accused to receive judicious trials in line with international agreements on the same. Given the situation currently, the court is overly concerned with providing just trials to criminal as opposed to victims writes (Nichols 2015). This in turn affects the Court’s ability to end impunity in the world.

Ending Impunity

In responding to the role of the ICC in regards to ending impunity, the immediate former Secretary to the United Nations, Kofi Anna retorted: “For nearly half a century — almost as long as the United Nations has been in existence — the General Assembly has recognized the need to establish such a court to prosecute and punish persons responsible for crimes such as genocide. Many thought . . . that the horrors of the Second World War — the camps, the cruelty, the exterminations, the Holocaust — could never happen again. And yet they have. In Cambodia, Bosnia and Herzegovina, in Rwanda. Our time — this decade even — has shown us that man’s capacity for evil knows no limits. Genocide . . . is now a word of our time, too, a heinous reality that calls for a historic response” (United Nations 2016, Para 8).

            The findings if the Nürnberg Tribunal considered the mandate the ICC holds in regards to effectively ending impunity. In their ruling, the tribunal judges noted that crimes committed against humanity are in the real sense committed to by individuals (men) as opposed to abstract entities. It thus follows its only by prosecuting these individuals that the Court can enforce universal human rights  through the “principle of individual accountability”  as this is the cornerstone of the Courts establishment (Griech-Polelle 2009).

Going back to the Kenyan case, it is evident that this ruling envisaged a situation where the Court would appear to be prosecuting the government as opposed to the accused individuals. This case has turned out to be a process pitting the Kenyan government on the one hand and the ICC prosecutor on the other (Materu 2014). It therefore follows that the ICC has failed in ending impunity and therefore its responsibility to enforce human rights as leaders continue to commit wanton crimes against populations as shown by the current situation in Burundi where the current president has led the killing of opponents in their thousands.

This inability is also ability to prosecute criminals is also influenced by the inaction of different sates to provide the requisite support to help the court to end impunity (Nouwen & Werner 2010). Taking the case of the renowned dictator Pol Pot, who killed in excess of 1 million people during the 1970s, it is clear that the court cannot be considered a final resort for enforcing human rights and thereby ending impunity. Although the Cambodian government did hand to the International Tribunal on Cambodia-a part of the ICC, the Canadian government which a signatory to the Rome statute was not interested in conducting the prosecution despite the existence of sufficient evidence. Consequently, the former dictator has never been prosecuted despite the existence of the ICC (Rotblat 2001).  One of the principle reasons adduced to account for the failure of the court to end impunity is the lack of adequate capacity to address the inefficiencies in the ad hoc tribunals that preceded the creation of the court.

Deficiencies in Ad Hoc Tribunals

            In the wake of genocides Yugoslavia as well as Rwanda, the United Nations Security Council created ad-hoc committees to prosecute individual perpetrators. The creation of these tribunals was informed by the absence of judicial mechanism to prosecute perpetrators in the nation, which were characterised by a widespread ethnic and religious hatred. There was therefore need to create a mechanism that would deliver justice in affair manner irrespective of ethnic, religious and or political standing (Moravcsik, 2000).  These tribunals  were however limited in terms of jurisdiction as their mandate was limited to specific regions in addition to limited timeframes (Cassese 2015).  This limitation to particular territories meant that the tribunals could not prosecutor perpetrators of global crimes in other territories as they were immune to prosecution. While the Rome Statute effectively widened the Court’s jurisdiction, it did little to address the challenges the compounded the ad-hoc tribunals (Hafner-Burton 2012).

The ICC still faces the same challenges, which limit its ability, enforce universal human rights. The United States has been increasingly cited by various bodies in the world such as Amnesty International as one of the principle violators of human rights and therefore the Geneva Convention but the court cannot act as the country is not a signatory (Moravcsik 2000). The funny things is that the U.S is a key member of the Security Council which effectively means that it  is crucial in the running of the Court yet it cannot be held accountable by an organization it helped create. Further, the court cannot act in the Syrian case as the country too is not a signatory. In addition to the fact that the court relies on countries to forward or arrest suspects is another aspect that demonstrates the Court is unable to adequately enforce human rights as it is limited in its functionality (Bailliet & Aas 2016).

In recent times, the South African Supreme Court ruled that the government erred in not arresting Sudan’s President Omar El Bashir during a recent visit. The fact is that the country could not enforce the arrest warrant as it was not obligated in any way or form to assist the Court in its primary mandate (Bailliet & Aas 2016).

Although the Court enjoys a wider jurisdiction scope than the ad-hoc tribunals, the Court’s focus in terms of geography is still restricted to particular regions of the world especially Africa, This then means that the International Criminal Court has not addressed the challenges that bedevilled the tribunals and as such cannot be considered as an effective player in the enforcement of universal human rights.


This research paper has critically examined the International Criminal Court in regards to its effectiveness in promoting universal enforcement of human rights, by focusing on the primary reasons informing its creation with a view to justifying its continued existence. The exercise has examined three primary reasons informing its creation and concludes that the International Criminal Court as currently constituted is not a significant innovation that ensures the universal enforcement of human rights. This is largely due to its inability to end impunity, guarantee justice for all in addition to addressing the challenges that faced ad-hoc tribunals.  The implication of this is that the Rome Statute needs to be repealed and a new one created that will widen its jurisdiction mandate and limit political interference. The Court is merely a representation of selective application of justice as well as human rights often underlined by self-serving interests among by powerful members of the United Nations Security Council as well as the “Assembly of State Parties”.

List of References

Bailliet, C., & Aas, K. F. (2016). Cosmopolitan Justice and Its Discontents. London: Taylor & Francis.

Cassese, A. (2015). On the Current Trends towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law. European Journal of International Law, 15(1), 2-17.

Griech-Polelle, B. A. (2009). The Nuremberg War Crimes Trial and Its Policy Consequences Today. Nomo’s.

Hafner-Burton, E. M. (2012). International Regimes for Human Rights. Annual Review of Political Science, 265-286.

Kaleck, W., Ratner, M., Singelnstein, T., & Weiss, P. (2006). International Prosecution of Human Rights Crimes. London: Routledge.

Kirsch, P. (2007). The Role of the International Criminal Court in Enforcing International Criminal Law. International Law Review 2, 22(4), 539-547.

Materu, S. F. (2014). The Post-Election Violence in Kenya: Domestic and International Legal Responses. London: Springer.

Moravcsik, A. (2000). The Origins of Human Rights Regimes: Democratic Delegation in Post-war Europe. International Organization, 54(2), 217-252.

Nichols, L. (2015). The International Criminal Court and the End of Impunity in Kenya. London: Springer International Publishing.

Nouwen, S. M., & Werner, W. G. (2010). Doing Justice to the Political: The International Criminal Court in Uganda and Sudan. European Journal of International Law, 21(4), 941-965.

Reidy, D. A., & Sellers, M. N. (2010). Universal Human Rights: Moral Order in a Divided World. Rowman & Littlefield.

Rotblat, J. (2001). The Long Roads to Peace. World Scientific.

United Nations. (2016). International Criminal Court. Retrieved March 26th, 2016, from United Nations:

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