THE RELIABILITY OF INTERNATIONAL CRIMINAL JUSTICE SYSTEMS

INTRODUCTION.

“Our expectations of international criminal justice will eventually come more into line with what it can actually
accomplish. It can’t put societies back together, it can’t bring closure to those who have suffered horrible losses and
it can’t rid the world of international crime, any more than domestic courts have been able to abolish ordinary
crimes. It can make modest contributions to each of these things, and that’s all to the good. I think we will see new
ways of intertwining international and national prosecutions, supporting the national courts and linking reparations
and structural reform to justice efforts…”

-Naomi Roht-Arriaza.

The International Criminal Justice systems have been built over time in order to ensure
accountability for some of the most atrocious crimes such as genocide, crimes against humanity,
war crimes, torture and enforced disappearances. The idea to establish such systems was
conceived way before the Second world war by proposals from Gustav Moynier in response to
the devastation occasioned by the Franco-Prussian war and later by the negotiators of the Treaty
of Versailles in order to try the Kaiser and German war criminals. However, the birth of the
systems in place today is highly credited to the Nuremberg and Tokyo trials that held after the
Second World War between 1945 and 1946 as they confirmed that it was possible to hold
individuals liable for their criminal actions regardless of their official positions. 1

Among the mechanisms in place are Ad Hoc Courts such as the International Criminal Tribunal
for the Former Yugoslavia. It was established after the United Nations Security Council passed
resolution 827 which established the statute of the ICTY. 2 Under this statute the tribunal was
empowered to prosecute persons responsible for serious violations of international humanitarian
law committed in the territory of the former Yugoslavia since 1991. 3 The ICTY inspired the
creation of another ad hoc court known as the International Criminal Tribunal for Rwanda
(ICTR) which was created after the UNSC passed the resolution 955. The tribunal was
responsible for the prosecution of persons responsible for serious violations of international

1
Amnesty International, ‘ International Justice’ <https://www.amnesty.org/en/what-we-do/international-justice/ >
(accessed 27th September 2022).
2
International Criminal Tribunal For the Former Yugoslavia, ‘ State of the Tribunal’ <https://www.icty.org/>
3
Updated Statute of the International Criminal Tribunal for the Former Yugoslavia 2009
humanitarian law in the territory of Rwanda and Rwandan citizens responsible for such
violations committed in the territory of neighboring states.4

Hybrid courts also fall under international criminal justice systems. They have components of
both domestic and international legal systems. Unlike purely international courts like the ICC,
hybrid courts have legitimacy in the eyes of the stakeholder since they are established either by
an agreement between states and the United Nations or by bilateral agreements. Examples of this
courts include; The Kosovo Specialist Chambers and the Special Prosecutor’s Office and the
Special court set up for the Sierra Leone. 5

The final court under these mechanisms is the International Criminal Court which came into
existence with the establishment of the Rome Statute which was adopted in 1998. However, it
began its operations after the 60th country had ratified the treaty in 2002.6 Under Article 5 of the
Roman Statute, the jurisdiction of this court is limited to the most grievous crimes affecting the
international community at large. These crimes include; genocide, crimes against humanity, war
crimes and the crime of aggression.7

Beyond the courts mentioned above there have been other mechanisms such as human rights
monitoring and documenting initiatives and commissions that have included international
criminal investigation which was evident in 2016 when the United Nations General Assembly
established one such mechanism and tasked it with collecting evidence of violations in the Syrian
Civil War so as to support criminal proceedings in national, regional or international courts in
accordance with international law. 8

Finally, there is the principle of universal jurisdiction under which a national court may in some
circumstances prosecute individuals for crimes under international law wherever they happened.

4
Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other
Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens
responsible for Genocide and Other Such Violations Committed in the Territory of Neighboring States 1994
5
Suprateek Neogi, ‘ Hybrid Courts’( Penn Undergraduate Law Journal, 9/25/2019)< https://www.pulj.org/the-
roundtable/hybrid-courts >( accessed 27th September 2022)
6
ICC Project, ‘ Evolution of International Criminal Justice’< Evolution of International Criminal Justice |
International Criminal Court Project> ( accessed 27th September 2022)
7
Rome Statute of the International Criminal Court
8
Ibid
This is based on the principle that such crimes harm the international community or international
order itself which individual states may protect. This principle came to be with the adoption of
new conventions containing explicit or implicit clauses regarding the same. The Geneva
Convention of 1949 provided for universal jurisdiction over grave breaches of those conventions.
It further required a number of steps so as to make it an operative legal norm which are; the
existence of a specific ground for universal jurisdiction, a sufficiently clear definition of the
offence and its constituent elements, and the national means of enforcement allowing the
national judiciary to exercise their jurisdiction over these crimes.9

While so many institutions have been founded, there are equally as many questions arise as to
their impact on the international society. They have been lauded for their exemplary successes
yet they still remain on the receiving end of a lot of criticism. Issues such as bias towards African
states and their reliance on international politics as well as the will of states in issues of
jurisdiction have come to play while weighing the overall performance of international criminal
justice mechanisms. It is undeniable that these systems have a number of chinks in their armor
and it is these flaws that question their reliability.

The performance of the international criminal justice systems.

9
Xavier Phillipe, ‘The principles of universal jurisdiction and complementarity: how do the two principles
intermesh?’ (2010)< https://www.icrc.org/en/doc/assets/files/other/irrc_862_philippe.pdf > accessed 27th September
2022.
The impact that these systems have had on the international community is exemplary. Huge
strides towards a more peaceful and cohesive global society. Punishing violations of
international legal norms and promoting adherence has promoted the rule of law thus ending
impunity. Violators have been put on notice that they will not remain scot- free after going
contrary to the norms that are aimed at preventing norms that threaten peace, security and well
being of the world at large. The judicial interventions of the ICC have contributed to the
establishment of lasting peace which is a key element in reconciling societies and ending
recurrence of conflicts and repetition of violence.

They have also laid a strong emphasis on the position of the victims by allowing them to
participate in judicial proceedings as well as application for reparations. In the states with
ongoing judicial proceedings they help them by educating the citizens on their rights. This has
enabled them to empower victims and bring retributive and restorative justice closer together. A
trust fund has been created for the victims to implement court mandated reparations which is
aimed at helping them to reclaim their place in society and rebuild sustainable livelihoods.

In addition to that they have continuously codified acts that have particular expertise on violence
against women and children such as the Convention On The Elimination Of All Forms of
Discrimination Against Women. It has also handled cases relating to the use of child soldiers as
was seen in the Lubanga case where children under the age of fifteen were conscripted, enlisted
and actively participated in hostilities in DRC. The Special Representative of the United Nations
Secretary General for Children and Armed Conflict has assessed that the indictments have served
as a deterrent against the use of children in armed conflict situations. The ICTY also paved way
for the effective prosecution of wartime sexual violence.10

Lastly, the principle of Universal Jurisdiction has ensured that there are no safe havens available
for people who commit crimes that are of grave implications to the international community. 11
An example of this is the Spanish prosecution of Guatemalan officials related to the Guatemalan
genocide case where members of the Ixil Maya faced extreme torture, mutilation, sexual
violence and violence against their children.12

10
Sang- Hyun Song, ‘ The Role of The International Criminal Court In Ending Impunity and Establishing the Rule
of Law’ (2012)< https://www.un-ilibrary.org/content/journals/15643913/49/4/3> (accessed 27th September 2022)
11
Ibid
Targeting of African states by the International criminal justice systems.

The allegation that the international criminal justice system, especially the ICC is inappropriately
targeting African states is often heard. Following the indictment of Sudanese President Omar Al
Bashir, the African Union (AU) Peace and Security Commissioner communicated his concern
over the conduct of the prosecutor by stating that it represented a glaring practice of selective
justice. Over the years many critics of the ICC have expressed similar concerns. To counter these
allegations several explanations have been put forward have stated that it has limited options due
to incidence of conflict on a global scale and the jurisdiction limits imposed. They further
expound this by pointing out that more than a quarter of countries that have ratified the Roman
Statute are African. Secondly, African states are distinguished by the gravity of the crimes
committed there and the reluctance or lack of capacity to prosecute and properly investigate
these crimes. Lastly, African states have submitted themselves to the jurisdiction of the ICC
since half of the situations in Africa over which the ICC has expressed jurisdiction were the
result of self-referrals. This gives the court legitimacy to exercise its mandate since Article 14 of
Roman Statute provides for referral of a situation by a state party where the prosecutor is
requested to investigate certain crimes.

While these seem like good enough reasons to claim that the target on Africa is not
inappropriate, a more critical evaluation of these situations suggest a neo colonial agenda. Most
African heads of states are mere puppets of neo colonial interests which has helped them
eternalize power in exchange for defending the neo- colonial economic agenda of Western and
Emerging Eastern countries. It is under these circumstances that crimes falling under the
jurisdiction of the ICC are perpetrated and insulated from the selective and discriminatory
investigations at the ICC. 13 Powerful individuals close to the neo colonial interests have not been
prosecuted instead those who are in the periphery with regards to these situations have been
prosecuted as was seen in the case of DRC in the case concerning four rebel commanders
including Thomas Lubanga Dyilo from the Ituri Region. It was argued by the ICC prosecutor

12
The Centre for Justice &Accountability, ‘The Genocide of Mayan Ixil Community’< The Guatemala Genocide
Case – CJA> (accessed 27th September 2022)
13
Chief Charles Achaleke Taku, ‘Has the International Criminal Court Inappropriately Targeted Africa?’ (ICC
Forum), <https://iccforum.com/africa > (accessed 27th September 2022)
that this where the most grievous crime were committed. Equally atrocious crimes have been
committed in the Kivu provinces yet the ICC has been reluctant to delve into these areas since
Congolese government officials may be implicated.14

Other incidences that show that African states are being targeted inappropriately are seen where
the ICC has received numerous claims to investigate other nations with equally atrocious crimes
yet they have not done so. This is depicted in the case of Israel where mass atrocities were
committed during the Operation Cast Lead 2008-2009 in occupied Palestinian territories. It has
also failed to open investigations against British forces in Iraq and Afghanistan15

The complementarity principle.

This principle is established under Article 1 of the Roman Statute. It basically grants jurisdiction
to a subsidiary body where the main body fails to exercise its primary jurisdiction. Within the
context of international criminal justice systems, they should only exercise jurisdiction where the
states are unwilling or unable to using their national criminal justice systems. While
strengthening national courts to carry out investigations and proceedings on their own may be a
step in the right direction, there are certain challenges that arise based on this principle.

The obstacles towards the implementation of this principle include a myriad of questions on what
happens if a state chooses to prosecute for an ordinary crime such as murder? Is it possible for
the case to be brought forward for prosecution to the ICC under the crimes against humanity of
murder? Should the case meet the jurisdictional threshold of the ICC, does the issue become one
of double jeopardy? What constitutes unwillingness or inability to prosecute? These questions if
not properly looked into may be the course of inefficiencies in the criminal justice systems. 16

14
Rachel Goodman & Nokukhanya Mncwabe, ‘International Criminal Justice in Africa: Neocolonial Agenda or
Strengthened Accountability?’(2011)< https://au.int/web/sites/default/files/documents/30188-doc-
atjrn_brief_oct_2011_-_international_criminal_justice_in_africa_0.pdf> (accessed 27th September 2022)
15
Dr Mwiza Jo Nkatha, ‘Is ICC targeting African countries?’ ( The Nation, 20/11/2013) <https://mwnation.com/is-
icc-targeting-african-countries/> (accessed 27th September 2022)
16
Ibid
CONCLUSION.

The International Criminal Justice Systems were established with the collective aim to ending
impunity by ensuring that the most wicked crimes committed which had an effect on members of
the international community as a whole received retribution. It has since then done so by
instituting criminal proceedings and expanding the international criminal jurisprudence. These
attempts have helped to sustain peace and the general well being to a certain degree.

I believe that these systems are indeed reliable even though they may have failed and fallen short
of our expectations, the systems are not incorrigible and that there is room for review and
rectification.
 REFERENCES.
International Instruments.
1. Rome Statute of the International Criminal Court
2. Statute of the International Criminal Tribunal for the Prosecution of Persons
Responsible for Genocide and Other Serious Violations of International Humanitarian
Law Committed in the Territory of Rwanda and Rwandan Citizens responsible for
Genocide and Other Such Violations Committed in the Territory of Neighboring States
1994
3. Updated Statute of the International Criminal Tribunal for the Former Yugoslavia 2009

Journal Articles.
4. Chief Charles Achaleke Taku, ‘Has the International Criminal Court Inappropriately
Targeted Africa?’ (ICC Forum), <https://iccforum.com/africa > (accessed 27th
September 2022)
5. Rachel Goodman & Nokukhanya Mncwabe, ‘International Criminal Justice in Africa:
Neocolonial Agenda or Strengthened Accountability’(2011)<
https://au.int/web/sites/default/files/documents/30188-doc-atjrn_brief_oct_2011_-
_international_criminal_justice_in_africa_0.pdf> (accessed 27th September 2022)
6. Sang- Hyun Song, ‘ The Role of The International Criminal Court In Ending Impunity
and Establishing the Rule of Law’ (2012)<
https://www.un-ilibrary.org/content/journals/15643913/49/4/3> (accessed 27th
September 2022)
7. Xavier Phillipe, ‘The principles of universal jurisdiction and complementarity: how
do the two principles intermesh?’ (2010)<
https://www.icrc.org/en/doc/assets/files/other/irrc_862_philippe.pdf > accessed 27th
September 2022.

Websites
8. Amnesty International, ‘ International Justice’ <https://www.amnesty.org/en/what-we-
do/international-justice/ > (accessed 27th September 2022).

9. Dr Mwiza Jo Nkatha, ‘Is ICC targeting African countries?’ (The Nation, 20/11/2013)
<https://mwnation.com/is-icc-targeting-african-countries/> (accessed 27th September
2022)
10. ICC Project, ‘ Evolution of International Criminal Justice’< Evolution of International
Criminal Justice | International Criminal Court Project> ( accessed 27th September
2022)
11. International Criminal Tribunal For the Former Yugoslavia, ‘ State of the Tribunal’
<https://www.icty.org/>( accessed 27th September 2022)

12. The Centre for Justice &Accountability, ‘The Genocide of Mayan Ixil
Community’<The Guatemala Genocide Case – CJA> (accessed 27th September 2022)
13. Suprateek Neogi, ‘ Hybrid Courts’( Penn Undergraduate Law Journal, 9/25/2019)<
https://www.pulj.org/the-roundtable/hybrid-courts >( accessed 27th September 2022)