If I am to advocate these are the three points I think I would like to raise:
1. If the central term of the title question is "justice" and we are being asked whether or not IT are an 'adequate' means to enforce then I would argue that the justice is a broad term, and even when restricted to its criminal sense refers to far more crimes than the ICC or either ad-hoc tribunal has jurisdiction over. Article 5 of the Rome Statue sets out that the only crimes over which the ICC has jurisdiction are:
- the crime of genocide
- crimes against humanity
- war crimes
- the crime of aggression (and no subsequent additonal provision has been adopted to create a defined form of jurisdiction over this).
This means that the ICC is unable to deal with a number of other issues of criminal justice. The point that highlights this best, is that the ICC is unable to deal with the crime Trindad and Tobago had in mind when they made the inital suggestion regarding the existence of an international criminal court. Trindad and Tobago wanted an international judicial body to be created that would be able to deal with the crime of narcotics trading - a matter of international criminal justice - but the ICC is unable to deal with this.
In limiing the nature of crimes against which it can prosecute, in order to insure state consent to its jurisdiction, the ICC has undermined itself as an enforcer of international justice.
This leads to my second point:
2. Both the ICC and the ICT Y and R face jurisdictional problems, although in the two cases the tension between state sovereignty and the enforcement of international justice pulls in opposite directions. The point here is that states are unwilling to submit to the jurisdiction of an international tribunal with regard to criminal matters, as jurisdiction with regard to crime is typically an area dealt with by a state, within its own borders. Submitting jurisdiction to an international court consequently means a loss of state-power. In the case of the ICC, as mentioned above, this tension has led to a limitation on the powers of the Court. Further to this however, it has also meant that the Court does not have univeral jurisdiction; a crime can only be considered it intially falls within the jurisdiction of a State Party to the Rome Statue (which states are not necessitated to be; a total of 105 states have assented) and if that crime has not, by reasons of choice or circumstance, been prosecuted in that national jurisdiction. Articles 1 and 17 sets out these parameters,, and a wide margin (somewhat mitigated by the role of the Prosecutor) is given to states, in terms of the expectation that they will prosecute the crime within their own borders. The lack of universal jurisdiction of the ICC due to concerns regarding state sovereignty, undermines its claims to 'adequate' provision with regard to international justice, where international justice is considered a concept which is not defined within state borders. From the opposite perspective, the nature of the ICT Y and R are problematic, as if state sovereignty is viewed as a concern, the imposition of a compulsory war crimes tribunal on a state, by the SC can be seen as an impostion on this sovereignty, as there is considerable debate as to whether the creation of these tribunals is within the SC's Article VII powers; the question is, in what way does is the creation of an international criminal tribunal a genuine counteraction to a 'threat to international peace and security'?
3. On a more pragmatic note international tribunals (both the ad-hoc tribunals and the ICC) are inadequately funded to enforce even the limited notion of international justice for which their statutes provide. The cases that run in the courts are notoriously long running, as the Milosevic case in the ICT Y - which remained unconcluded at his death -proves. The ad-hoc tribunals are also unable to hear the vast number of cases that could possibly be heard before them. Given the notion of secondary liability enshrined in the Celadic and Akeyasu cases, and the resource contraints the focus has been on prosecuting those in command of regimes under which criminal acts have been committed; large numbers of those who followed the orders of commanders however, remain unprosecuted. This does not paint a picture of an 'adequate' system of international justice. Further to this, the ICC has heard very few cases since its inception (a total of 9), again pointing towards a body unable to take on the expansive role that its own statue appears to imply. Arguably more than 9 cases of crimes of the form listed in the Article 5 of the Rome Statute, and which have not been fully investigated by states, have occurred since the court's inception.
Hope that's OK!
Zoe
Friday, 14 March 2008
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