i

A CRITICAL APPRAISAL OF INTERNATIONAL CRIMINAL

COURT, ITS INFLUENCE ON THE DEVELOPMENT OF
INTERNATIONAL LAW

A RESEARCH PROJECT

BY

NTIBI, JOY UMO-EDEM

MATRIC NO: 10/61074

SUBMITTED TO

THE FACULTY OF LAW

UNIVERSITY OF CALABAR,
CALABAR - NIGERIA

IN PARTIAL FULFILLMENT OF THE REQUIREMENT FOR THE

AWARD OF BACHELOR OF LAW (LL.B) DEGREE.

AUGUST, 2015.
 CERTIFICATION

This is to certify that this research project titled: A CRITICAL

APPRAISAL OF INTERNATIONAL CRIMINAL COURT, ITS INFLUENCE

ON THE DEVELOPMENT OF INTERNATIONAL LAW was conducted by

NTIBI, JOY UMO-EDEM with Matric No: 10/61074 of Faculty of

Law, University of Calabar, Calabar.

…………………………….. Sign:………..……...……
DR. JAMES ARCHIBONG Date:
…………………....
(Supervisor)
Faculty of Law
University of Calabar,
Calabar.

…………………………….. Sign:……….…..……….
NTIBI, JOY UMO-EDEM Date:
…………………….
(Project Student)
Faculty of Law,
University of Calabar,
Calabar.
 iii

DEDICATION

To the one who knew me before I was formed and who has

been everything to me. To God who has been awesome and

faithful despite my unfaithfulness. How great thou art.

And to my beloved father, Etiyin Edem Edet Ntibi who left

this world at a time he was really needed. Dad, you left us too

soon but God knows the end of a thing right from the beginning.

Our consolation lies in the fact that you lived a good life What

more could a child ask for? You were just too compassionate. Your

memory lingers on. We still miss you, dearest Dad.

 ACKNOWLEDGEMENT

My successful sojourn on campus would not have been but

for the tender mercies of God. He has been my strength, shield,

refuge and pillar. My generation will continually serve you. For

being the Father to those who have none and the husband of those

who have lost theirs, I say you are indeed the living God.

Mma, words cannot begin to express the love I have for you.

You are a symbol of all that is good about family. I thank you for

the love you have for me and for all you have done for me and my

siblings from the very first day we were with you. All good and

perfect things come to those who love God and the care you have

shown to me cements that you love God. May all your needs be

met according to his riches in Christ Jesus.

I cannot thank God enough for my family, Mrs Vera Benjamin

and Dr Joseph Ntibi. Gods blessing is all I can give to you. May the

love that binds us wax stronger and may all your heart desires be

fulfilled. May your family grow from strength to strength. My heart

bubbles for you.

 v

My gratitude goes to my caring and lovely mother, Mrs Helen

Kaisah Keouvikpe Ntibi. Mum, you weathered the storm and here
we are today. Even when it seemed all hope was lost, you forged
ahead and you have consistently sacrificed a lot just for us to fulfill
our purpose. To every person, his mother is the best but I say you
are the best among the very best. For the prayers, support, love
and encouragement, I cannot thank you enough. You are indeed a
mother and you will definitely enjoy your labour. I love you so
much.
My sincere appreciation goes to Engr. Vincent Sodje for being
a father. Daddy despite all odds, you have consistently believed in
us. For everything, I can only say thank you sir. Only God can
repay you for all you have done. Your reward will not be lost.
I really appreciate my amiable supervisor, Dr. James
Archibong for painstakingly and analytically guiding me through
this work. He made everything easy and was really
accommodating. Sir, you are a father in the true sense of the
word. Your children will be favoured in their endeavours.
May God reward Engr Ariyo Oniyelu and family, Engr. Doyin
Orekoya and Family, Pst. Obi Matthias, Pst. Timothy Jaiyeola,
Mummy Tammy Irisominabo and Pst KC Bright for being helpful to
me.Your prayers helped to where I am today.
 Midibhar, Debby, Anthonia and Osamede (Simple) remain
unforgettable. Your friendship means a lot to me. We are going
places. I love you all.
I appreciate Grace, Christopher, Esther, Maxwell and Uncle
Rex for being there. You are loved.
Mboutidem Marcus was indeed of great help while this work
was on. I have a friend indeed in Temple Amadi. It was indeed
great meeting Anita Briggs, Nworgu Beyita and Anna-Lois Ugbaka.
My roomies (Ifunaya, Mildred, Becky and Amy Chris) will be
greatly missed. My Cornamate and friend Esty. Thanks for making
Room 115 fun. Not forgetting our very own Chynnie, I love you
plenty. My wonderful typist Lydia Timothy thanks a lot.
To all megalious Clasfonites, my classmates, the Omega
Church (BLW) and RCF it was nice meeting you all.
To my point of view and the one whose name I will bear,

thoughts of you make my heart glow. I will always love you.

 vii

TABLE OF CONTENTS

TITLE PAGE - - - - - - - i

CERTIFICATION - - - - - - - ii

DEDICATION - - - - - - - iii

ACKNOWLEDGEMENTS - - - - - - iv

TABLE OF CONTENT - - - - - - vii

TABLE OF CASES - - - - - - - xii

TABLE OF STATUTES - - - - - - xiv

TABLE OF TREATIES/MODEL LAW - - - - xv

TABLE OF ABBREVIATIONS - - - - - xvi

ABSTRACT - - - - - - - - xvii

CHAPTER ONE: GENERAL INTRODUCTION

1.1 Background of the Study - - - - 1

1.2 Statement of the Problem - - - - 4

1.3 Objectives of the Study - - - - 4

1.4 Significance of the Study - - - - 5

1.5 Scope of the study - - - - - 5

1.6 Methodology - - - - - - - 6
1.7 Literature Review - - - - - 7

1.8 Definition of Terms - - - - - 10

1.9 Plan of the Study- - - - - 11

CHAPTER TWO: AN OVERVIEW OF THE OPERATIONS

OF THE INTERNATIONAL CRIMINAL COURT (ICC)
2.1 Introduction - - - - - - 13

2.2 Historical Background - - - - - 14

2.3 The Rome Statute - - - - - 16

2.4 The Jurisdiction of the Court - - - 16

2.4.1 Territorial Jurisdiction - - - - 18

2.4.2 Temporal Jurisdiction - - - - 19

2.4.3 Complementarity - - - - - 20

2.5 Membership of the Court - - - - 21

2.6 Structure of the Court - - - - 22

2.6.1 The Presidency - - - - - 24

2.6.2 The Judicial Division - - - - - 25

2.6.3 The Office of the Prosecutor - - - 27

2.6.4 The Registry - - - - - - 29

 ix

2.7 Procedures of the Court - - - - 30

2.7.1 Rights of the Accused - - - - 30

2.7.2 Participation of Victims - - - - 32

2.7.3 Reparation for Victims - - - - 35

2.8 Co-operation by States that are not Parties

to Rome Statute - - - - - - 37

2.9 Referrals of the Court - - - - - 38

2.10 Referrals by State Parties - - - - 41

2.10.1 Uganda - - - - - - - 41

2.10.2 Central African Republic - - - - 43

2.10.3 Mali - - - - - - - 47

2.10.4 DR Congo - - - - - - 48

2.11 Referrals by UN Security Council - - - 53

2.11.1 Libya - - - - - - - 53

2.11.2 Sudan - - - - - - - 55

2.12 Initiated Proprio motu by Prosecutor - - 59

2.12.1 Cote d’lvoire - - - - - - 59

2.12.2 Kenya - - - - - - - 61
2.13 The Court and the General Principles of

Criminal Law - - - - - - 64

2.14 Domestication of the Rome Statute in Nigeria 67

2.15 Contributions of the ICC to the Development

of International Law - - - - - 70

2.16 Conclusion - - - - - - 73

CHAPTER THREES: AN APPRAISAL OF THE COURT

3.1 Introduction - - - - - - 75

3.2 Achievements of the Court - - - - 76

3.3 Challenges of the Court - - - - 81

3.4 The Future of the Court - - - - 87

3.5 Conclusion - - - - - - 89

CHAPTER FOUR: SUMMARY, CONCLUSION

AND RECOMMENDATIONS

4.1 Summary - - - - - - 91

4.2 Conclusion - - - - - - 92
 xi

4.3 Recommendations - - - - - 93

Bibliography - - - - - - 98
 TABLE OF CASES

Prosecutor v. Joseph Kong, Vincent Otti and Okot

Odhiambo ICC-PIDS-(IS-UGA-001-001/10 42

The Prosecutor v Dominic Ongwen ICC-02/04-01/15 42

Prosecutor v. Thomas Lubanga Dyilo ICC-01/04-01/06 48

Prosecutor v Bos co. Ntaganda ICC-01/04-02/06 48

Prosecutor v. Germain Katanga ICC-01/04-02/07 48

Prosecutor v. Mathieu Ngudjolo Chui ICC-01/04-02/12 48

Prosecutor v. Callivte Mbarushimana ICC-01/04-02/10 48

Prosecutor v. Sylvestre Mudacumura ICC-01/04-02/12. 48

Sanni Abacha V Fawehinmi (2000) 4 Sc (pt 11) 1 68

Prosecutor v. Harun & Ali Abd-A; Rahmen

ICC-02/05-01/07 57

Prosecutor v. Omar Al-Bashir ICC-02/05-01/09 57

 xiii

Prosecutor v. Abdallah Banda ICC-02/05-03/09 57

Prosecutor v. Abdel Rahaem Muhamed Husein

ICC-01/05-01/12 57

Prosecutor v. William Ruto & Joshua Sang

ICC-01/09-01/11 63

Prosecutor v. Uhuru Kenyatta ICC-12/09-02/11 63

Prosecutor v. Walter Osapiri Basara ICC-01/09-01/12 64

Simone Gbagbo - ICC-02/11/-01/12 61

Prosecutor v saif Al-Islam Gaddafi ICC-02/11/-01/11 58

Prosecutor v Jean Pierre Bemba Gombo 45

Laurent Gbagbo 60
 TABLE OF STATUTES

Nigeria

Constitution of the Fed Rep of Nigeria 1999 cap 24 LFN 2004.

 xv

TABLE OF TREATIES/MODEL LAW

Rome Statute of the International Criminal Court 1998

Vienna Convention on the Law of Treaties 1969

United Nations Charter 1945

Resolution 1593

ICC Rules of Procedures & Evidence

Nuremberg Charter 1945

Nuremberg Principles 1950

 TABLE OF ABBREVIATIONS

AU - African Union

Cap - Chapter

ED - Edition

ICC - International Criminal Court

ICJ - International Court of Justice

LFN - Laws of the Federation of Nigeria

LRA - Lord’s Resistance Army

OPCD - Office of Public Counsel for the Defence

PT - Part

SC - Supreme Court

UN - United Nations

US - United States

WLR - Weekly Law Report

 xvii

ABSTRACT

The traditional focus of International Law has been upon the rights
and obligations of states while International Criminal Law regulates
the conduct of individuals and also punishes those who commit
heinous and barbaric crimes against others. The most prevalent of
these crimes include genocide, crimes against peace, war crimes
and crimes against humanity.
After the end of World War II, the Allies tried Nazi leaders
responsible for the massacre to demonstrate that such would not
be permitted in future. In the absence of a permanent criminal
court, ad hoc tribunals were established. Unfortunately, in the
succeeding years, the world sustained atrocities without having
recourse to any permanent global mechanism for the prevention
and punishment of such crimes.
Consequently, a treaty establishing the International Criminal
Court was adopted in Rome on July 17, 1998 at the Rome
Conference. The court came into being on 1 July, 2002 as that was
the date its founding treaty, the Rome Statute entered into force
and it can only prosecute crimes committed after that date.
Despite the court’s various achievements, it still faces some
challenges. These include the refusal of the United States to ratify
its treaty, the non-cooperation of states that are not parties, lack
of universal ratification of the Rome Statute and a host of others.
In spite of all these, the International Criminal Court promises a lot
because it seeks to deter other war criminals from committing
inhumane crimes against others. The court is widely acknowledged
as the missing link in the international legal system.
On the whole, this long essay seeks to examine the International
Criminal Court, tracing its evolution from the post-World War II era
to the present. The Court's position in the development of
International Law in addition to The Court’s achievements and also
the challenges undermining its successes will be discussed.
 CHAPTER ONE

GENERAL INTRODUCTION

1.1 Background of the Study

The modern state of international law began after the 2 nd

World War. In a bid to make sure the events of the War did not

happen again and to ensure the punishment of offender’s

measures were put into place by the international community.

These measures include tribunals that were set up to ensure

the punishment of violators of the international law and to further

deter others due to the measures and punishment available.

Tribunals were set up by the United Nations General Assembly and

the victorious Allied powers i.e. United States of America, France,

Britain etc; these tribunals were located in places where

international crimes were committed such tribunals include the

Nuremberg Tribunal, Tokyo Tribunal.

 xix

These tribunals under international law kick started the

position of individual responsibility for international crimes and

criticisms of these tribunals brought forth a clamor for the

establishment of a permanent mechanism to punish offenders of

international humanitarian law generally.

After series of negotiations, the Untied Nations General

Assembly convened the Rome Conference on 17 July, 1998 where

the Rome Statute was adopted and the International Criminal

Court was adopted. This is a permanent court which prosecutes

and punishes individuals for the most serious offences of global

concern ie. Genocide, War crimes and Crimes against humanity.

The mandate of the Court is to ensure that violators of

international criminal law do not go unpunished. The Rome Statute

sets out the Court’s jurisdiction, structure and functions. This

statute is not retrospective but will be in effect for crimes

committed after 1 July 2001 after the Rome Statute was entered

into for on that day.

 The major incentive behind this topic is to critically appraise

International Criminal Court, and its influence in the enhancement

of international law.

The establishment of the international criminal court was

considered a right step into the prevention of inhumane acts and

the punishment of offenders in situations where crimes that are

intrinsically contrary to international law were committed.

This topic was borne out of the need to understand the

activities of the court viz a viz its challenges and its achievements

in the development of international law in a bid to achieve it

mandate and to make the world a community a peaceful one to

live in.

1.2 Statement of the Problem

The problems to be addressed in this work deals mostly with

the International Criminal Court. The ICC since its inception has

been faced with major challenges even with this, it has achieved a
 xxi

lot. The challenges achievements and measures that should be put

in place for effective and more efficient operation of the court.

It also seeks to understand the role the International Criminal

Court has played in the development of international law.

1.3 Objectives of the Study

The cardinal reason for undertaking this research is to

critically and analytically examine the operations of the

International Criminal Court.

It is also to explore the evolution of the International Criminal

Court. Its activities and the achievements will be brought to the

fore including the numerous challenges of the court.

It would also recommend measures that can be used to

battle these challenges.

1.4 Significance of the Study

 This work will be valuable to students of international law. its

value will also be felt by institutions and in the event of it’s a

completion, research can be made into the issue of the

internationals criminal court and the ways that these issues can be

dealt with.

1.5 Scope of the Study

This long essay will focus on the International Criminal Court

and international law.

The efforts of the International Criminal Court in guarding

against the commission of crimes will be examined. This is in

addition to the situations the court has dealt with. Also, the

achievements of the court will be considered in addition to the

setbacks that are being faced.

The court has influenced the development of international

law and this will be considered in addition to recommendations as

to the challenges of the court.

1.6 Methodology
 xxiii

In this research, primary sources and secondary sources in

information will be relied upon majorly. The primary sources are

judicial decisions and legislations which include the Rome Statute

(2002), the Untied Nations Charter (1945), Vienna Convention on

the Law of Treaties (1969) and the Constitution of the Federal

Republic of Nigeria.

Secondary sources are articles in journals, articles on the

internet, books, dictionaries and newspaper reports.

1.7 Literature Review

The information used for used for this essay will be sourced

basically from the internet, law journals and textbooks.

Umozurike in his book1 opined that the widespread massacre

and ethnic cleansing experienced all over the world made up the

UN Security Council set up some ad hoc tribunals to prosecute

persons responsible for some of the crimes committed in armed

1
U. O, Umozurike “Introduction to International Law (2008 spectrum Publishers, Ibadan) p.
conflict, whether international or National in Character and

directed against any civilian population. The crimes include

murder, extermination, enslavement, deportation, imprisonment,

torture, rape, prosecutions on political, racial and religious, bus

grounds and other inhumane acts.

They impacted international humanitarian law as they

focused on compliance with the accepted humanitarian principles

and punishment for their Violations. They reaffirm the principle of

individual responsibility for war crimes even if committed within

the framework of municipal law2

The International Criminal Court in their information book let 3

explained the purpose of the court and the position of the Rome

Statute. It was able to establish that the ICC is a permanent

autonomous court as opposed to the ad hoc tribunals for former

Yugoslavia and Rwanda.

2
Ibid 86
3
ICC Publications, “Understanding the International Criminal Court p. 8
 xxv

Schabas in his work4 commented on the Rome Statute when

it was effected into international community and the different

articles therein enabled the growth in the approach to grievous

crimes and crimes against humanity.

In another of his work 5, Schabas explained more on the

background of the ICC, the ICC prosecutes genocide, crimes

against humanity when the national justice systems are either

unwilling or unable to do so themselves. The principle of the ICC,

its scope of jurisdiction and the procedural regime is considered by

Schabas and it offers an inside look into the difficulties the court

has due to US opposition.

Malanczuk6 posited that the establishment of a permanent

international criminal court would overcome the problems arising

from the efforts and the required creating ad hoc tribunals.

4
Schobas William, The International Criminal Court: A commentary on the Rome Statute (Oxford: Oxford
University Press, 2010.
5
Schabas William: Introduction to the International Criminal Court (Cambridge: Cambridge University
Press, 2007 3rd ed).
6
Malanczuk, P Akehursts’ Modern Introduction to International Law (Routledge, London & New York
1997) 360.
 Udiugwomen7 on international law and its concept asserted

that international law is one that deals with treaties, between

different countries usually with a view to enforce peace among the

countries in respect of their economic, commercial, military, and

other relationships.

1.8 Definition of Terms

For the purpose of clarity and better understanding, it is

apposite to provide full meaning of some concepts that will be

consistently used in this essay. This is because words have

meaning in the context they are used.

 International Criminal Court

It is a permanent court situated in the Hague to try

individuals for genocide, crimes against humanity and war

crimes8
 Jurisdiction

7
Udiugwomen A.F; Studies in Philosophical Jurisprudence (vital is Books 2006 3rd edition pg.
8
Woodley M. Osborn’s Concise Law Dictionary, (Sweet & Maxwell, London 2005) 10 th ed 225.
 xxvii

Osborn’s concise Law Dictionary 9 defines it as the power of a

court of judge to entertain an action, petition or other

proceedings. It is also defined as the power of courts to

inquire into facts, apply the law, make decisions and declare

judgment.10
 Complementarity principle
It is a term under international law wherein; the doctrine that

a country with control of a person accused of violating

international criminal law has the jurisdiction to charge and

try a person.11

1.9 Plan of the Study

This research work centres on International Criminal Court

bearing in mind their influence and contribution to the

development of international law.

Chapter one discusses the general introduction of the research,

the reasons that facilitated the choice of this topic and the focus of

the work. The textbooks used are reviewed and some of the words

which are to be consistently used are defined.

9
Ibid p. 232.
10
Black’s Law Dictionary (west Publishing Co, ST. Paul Minn 1990 6 th ed pg 853.
11
Black’s Law Dictionary 9th ed p. 324.
Chapter two examines an overview of the International Criminal

Court extensively. It deals with the background structure and

functions of the court. It also deals with its jurisdictions and the

investigations carried out by the court.

Chapter three is an appraisal of the Court. It discusses the

numerous achievements of the Court and the challenges militating

against its efficiency. It also deals with a new perspective on the

way forward in response to the challenges of the court and with

the International Criminal Court’s contribution to international law.

Chapter four is about the general conclusion and the further

recommendations that will assist the court in functioning

effectively and efficiently.

 xxix

CHAPTER 2

AN OVERVIEW OF THE OPERATIONS OF THE INTERNATIONAL

CRIMINAL COURT

2.1 Introduction

The clamour for the establishment of an international

tribunal to prosecute political leaders accused of war crimes was

first made during the Paris Peace Conference in 1919 by the

Commission of Responsibilities. The issue was raised again at the

Geneva Conference of 1939. However, nothing came out of these

conferences. In 1948, following the Nuremberg and Tokyo tribunals

set up after the Second World War, the United Nations General

Assembly recognized the need for a permanent international court

to deal with the kind of atrocities that had recently taken place.

The atrocities that occurred subsequently in many parts of the

world gave the impetus to creating a permanent mechanism to

bring to justice the perpetrators of such crimes as genocide, ethnic

cleansing, sexual slavery, maiming (including amputation of limbs

of non-combatants) and also to finally put an end to the impunity

so often enjoyed by those in positions of authority 12

2.2 Historical Background

The international community established ad hoc tribunals to

try offenders, further highlighting the need for a permanent

international criminal court. In 1950, at the request of the United

Nations General Assembly, the International Law Commission

drafted two statutes but the Cold War made the establishment of

an international criminal tribunal unrealistic.

On 17 July 1998, at the United Nations Diplomatic

Conference of Plenipotentiaries on the Establishment of an

International Criminal Court also known as the Rome Conference,

the Rome Statute of the International Criminal Court was adopted

by an affirmative vote of 120 countries against 7 countries that

opposed it, with 21 countries abstaining.13

12
http://www.un.org/law/icc> accessed on 21 January 2015
13
Ibid.
 xxxi

The International Criminal Court commonly referred to as the

ICC is a permanent tribunal to prosecute individuals for genocide,

crimes against humanity, war crimes and the crime of aggression

(although it cannot currently exercise jurisdiction over the crime of

aggression).14 The court is designed to complement existing

national judicial systems so, it can only exercise jurisdiction when

national courts are unwilling or unable to investigate and

prosecute such crimes.15 The ICC is an independent international

organisation which differs from the International Court of Justice

(ICJ) because while the ICC has jurisdiction to prosecute individuals

responsible for the commission of war crimes, the ICJ resolves

disputes among governments. The official seat of the court is in

The Hague, Netherlands but its proceedings may take place

anywhere.16

2.3 The Rome Statute

14
Article 5 of the Rome Statute (the statute that established the Court).
15
Ibid. Article 17 and 20
16
Ibid. Article 3.
 The Rome Statute is the statute that established the ICC and

it also regulates its operations. It was adopted on 17 July 1998 and

became a binding treaty on 11 April 2002, when the number of

countries that had ratified it had reached 60 but it legally came

into force on 1 July 2002 and the ICC can only prosecute crimes

committed after that date17. This means that it is neither

retroactive nor retrospective.

2.4 Jurisdiction of the Court.

Article 5(1) of the Rome Statute provides that:

The jurisdiction of the Court shall be limited to the most

serious crimes of concern to the international community as a

whole.

The Court has jurisdiction in accordance with this Statute with

respect to the following crimes:

(a) The crime of genocide;

(b) Crimes against humanity:

17
Ibid. Article 11.
 xxxiii

(c) War crimes:

(d) The crime of aggression.

The Rome Statute defines each of the crimes except

aggression but provides that the court will not exercise its

jurisdiction over the crime of aggression until the states parties

agree on a definition and set out the conditions under which it may

be prosecuted.

In June 2010, at the ICC’s Review Conference in Uganda, the

crime of aggression including the jurisdiction of the Court as

regards it was expanded. However, the Court will not be allowed to

prosecute anybody for this crime until 2017 18. Many states wanted

to include terrorism and drug trafficking to the list of crimes

covered by the Court but they were unable to agree on a definition

for terrorism and it was equally argued that the inclusion of drug

trafficking would deplete the court’s limited resources.

2.4.1 Territorial Jurisdiction

18
http://wapedia.mobi/en/> accessed on 01 February 2015.
 In the course of the negotiations that led to the Rome

Statute, many states argued that the court should have universal

jurisdiction. This was defeated due to opposition from the United

States19. A compromise was reached allowing the court to exercise

jurisdiction under the following limited circumstances:

(1) Where the accused person is a national of a state party or

where the person’s state has accepted the court’s jurisdiction;

(2) Where the alleged crime was committed on the territory of a

state party (or where the state on whose territory the crime was

committed has accepted the court’s jurisdiction) or;

(3) Where a situation is referred to the court by the UN Security

Council20.

2.4.2: Temporal Jurisdiction

The court’s jurisdiction does not apply retroactively. This

means that it can only prosecute crimes committed on or after 1

July 2002, the date the Rome Statute entered into force as a result

19
http://en.wikipedia.org/wiki/International_Criminal_Court> accessed on 14 January 2015.
20
Article 12& 13 of the Rome Statute.
 xxxv

of the ratification by Australia which happened to be the sixtieth

state21 as entrenched in Article 126 (1) which provides that:

This Statute shall enter into force on the first day of the

month after the 60th day following the date of the deposit of the

60th instrument of ratification, acceptance, approval or accession

with the Secretary-General of the United Nations.

Article 11(1) of the Rome Statute provides that ‘the Court

has jurisdiction only with respect to crimes committed after the

entry into force of this Statute’. Where a state becomes a party to

the Rome Statute after that date, the court can exercise

jurisdiction automatically with respect to crimes committed after

the statute enters into force for that state.

3.4.3 Complementarity.

The ICC is intended as a Court of last resort which is to investigate

and prosecute only where national courts are unwilling or

genuinely unable to carry out investigation or prosecution 22.

Therefore, recourse to the Court is secondary and States are

21
http://www.makewarshistory.org.uk/index/ rome-statute.html> accessed on 14 April, 2015
22
Ibid. Article 17.
encouraged to put in place national judicial systems to deal with

persons who bear the greatest responsibility for the commission of

war crimes. It is only when a country fails to commence

prosecution that the Prosecutor is compelled to intervene. If a

person has already been tried by another court, the ICC cannot try

such person again for the same conduct except the proceedings of

that court shielded the person from criminal responsibility or it was

conducted in a manner inconsistent with an intention to bring the

person to justice.23

2.5 Membership of the Court

The State Parties of the ICC are those countries that have

ratified the Rome Statute which is the treaty that established the

ICC. As at April 2011, the Rome Statute has been ratified by 114

countries24, while 34 states have signed but not ratified the

statute. However, some countries (Israel, Sudan and United States

of America) have indicated that they are no longer willing to be

23
Ibid. Article 20(paragraph 3).
24
http://en.wikipedia.org/wiki/States_Parties_to_the_Rome_Statute_of_the_International_Criminal
_Court > accessed on 15 April, 2015.
 xxxvii

state parties and therefore do not have obligations arising from

the Statute. The United States signed on December 31, 2000 but

the signature was withdrawn on May 6, 2002 25. A state that has

signed but not ratified a treaty is obliged to refrain from acts which

would defeat the object and purpose of the treaty but these

obligations do not continue if the state makes it clear that it does

not intend to become a party to the treaty 26. Some states,

including China and India are critical of the Court and have not

signed the Rome Statute. Several states that have not signed have

indicated their intention to accede to it.

2.6 Structure of the Court

The ICC is governed by an Assembly of States Parties. The

court consists of four organs which are the Presidency, the Judicial

Divisions, the Office of the Prosecutor and the Registry. The

Assembly of States Parties is the Court’s oversight, governing and

legislative body and is made up of one representative from each

state party. Each state party has one vote and it is presided over
25
http://wapedia.mobi/en/>accessed on 01 February 2015.
26
Article 18 of Vienna Convention on the Law of Treaties 1969.
by a President and two Vice-Presidents elected on a three-year

term. The Assembly meets in full session once a year in New York

or The Hague to discuss and decide on issues that are central to

the Court, such as the election of judges and prosecutors, the

adoption of the ICC's budget and cooperation between States and

the Court27. It may also hold special sessions where circumstances

require for the efficient functioning of the Court 28.

The Assembly elects judges and prosecutors, decides the

court’s budget and provides management oversight to the other

organs of the court. The Assembly may remove from office a judge

or prosecutor found to have committed a serious misconduct or is

unable to exercise the functions required by the statute29.

2.6.1. The Presidency

The Presidency is responsible for the proper and overall

administration of the court, with the exception of the Office of the

27
http://www.iccnow.org/?mod=court> accessed on 21 January 2015.

28
Article 112(6) of the Rome Statute.

29
Ibid. Article 46.
 xxxix

Prosecutor, and for specific functions assigned to the Presidency in

accordance with the Statute30. The Presidency has three main

areas of responsibility. These are judicial functions, administration

and external relations. In the exercise of its judicial functions, the

Presidency constitutes and assigns cases to Chambers, conducts

judicial review of certain decisions of the Registrar and concludes

Court-wide cooperation agreements with States.

The Presidency’s responsibility in the area of external

relations is to maintain relations with States and other entities and

also promote public awareness and understanding of the Court. It

comprises the President and the First and Second Vice-Presidents.

It is composed of three judges of the court who are elected to the

Presidency by their fellow judges for a term of three years

2.6.2: Judicial Divisions

The judiciary of the court is composed of three divisions.

These are the Appeals Division, Trial Division and Pre-Trial Division

and they carry out the judicial functions of the court. The Appeals

Division is composed of the President of the Court and four other

30
Ibid. Article 38(3).
judges while the Trial and Pre-Trial Divisions are composed of not

less than six judges each 31. The assignment of judges to Divisions

is based on the nature of the functions to be performed by each

Division and the qualifications and experience of the judges

elected to the Court, in such a way that each division shall contain

an appropriate combination of expertise in criminal law and

procedure and international law. The Trial and Pre-Trial Divisions

are composed predominantly of judges with criminal law

experience32.

The Judges are elected to the court by the Assembly of States

Parties. They serve nine-year terms and are not generally eligible

for re-election. All judges must be nationals of states parties to the

Rome Statute, and no two judges may be nationals of the same

state. They must be persons of high moral character, impartiality

and integrity who possess the qualifications required in their

respective States for appointment to the highest judicial offices.

31
http:www.icc-cpi.int/Menus/ICC/Chambers>accessed on 21 January 2015.

32
Article 39(1) of Rome Statute.
 xli

The Prosecutor or any person being investigated or

prosecuted may request the disqualification of a judge from any

case in which his impartiality might reasonably be doubted on any

ground. Any request for the disqualification of a judge from a

particular case is decided by an absolute majority of the other

judges. A judge may be removed from office if found to have

committed serious misconduct or a serious breach of his duties or

is unable to exercise his functions. The removal of a judge requires

both a two-third majority of the other judges and a two-third

majority of the states parties.

2.6.3 Office of the Prosecutor

This is the organ responsible for conducting investigations

and prosecutions. It is responsible for receiving referrals and any

substantiated information on crimes within the jurisdiction of the

Court, examining them and for conducting investigations and

prosecutions before the Court. It is headed by the Prosecutor, who

is assisted by two Deputy Prosecutors. The Office of the Prosecutor

is composed of three divisions. They are the Prosecutions Division,

the Investigations Division and the Jurisdiction, Complementarity

and Cooperation Division. The Rome Statute provides that the

Office of the Prosecutor shall act independently as such, no

member of the Office may seek or act on instructions from any

external source, such as states, international organisations, non-

governmental organisations or individuals. The Prosecutor may

open an investigation under three circumstances:

(1) When a situation is referred to him by a state party;

(2) When a situation is referred to him by the United Nations

Security Council, acting to address a threat to international peace

and security; or

(3) When the Pre-Trial Chamber authorizes him to open an

investigation on the basis of information received from other

sources, such as individuals or non-governmental organisations 33.

Any person being investigated or prosecuted may request

the disqualification of a prosecutor from any case in which his

impartiality might reasonably be doubted on any ground 34.

Requests for the disqualification of prosecutors are decided by the

33
http://wapedia.mobi/en/>accessed on 01 February 2015.
34
http://en.wikipedia.org/wiki/International_Criminal_Court> accessed on 14 January 2015.
 xliii

Appeals Division. A Prosecutor may be removed from office by an

absolute majority of the states parties if found to have committed

serious misconduct or a serious breach of his duties or is unable to

exercise his functions. However, critics of the court argue that

there are insufficient checks and balances on the authority of the

ICC prosecutor and judges and insufficient protection against

politicized prosecutions or other abuses.

2.6.4. The Registry

The Registry is responsible for the non-judicial aspects of the

administration and servicing of the court. This includes the

administration of legal aid matters, court management, victims

and witnesses matters. It is headed by the Registrar who is the

principal administrative officer of the Court and who exercises

these functions under the authority of the President of the Court 35.

2.7 Procedures of the Court

35
http:/www.icc-cpi.int/Menus/ICC/Structure+of+the+Court/Registry/The+Registry.html>accesse on 21 January

2015
This is in relation to the rights of the accused in the course of trial,

the participation of victims in proceedings and reparations for

victims. The accused is not prejudiced against and he is entitled to

a fair and just hearing. Victims also have the opportunity to air

their grievances before the court and their participation may occur

at various stages of the proceedings. The court can also order that

reparation be paid to the victim to redress the wrong done by the

accused.

2.7.1. Rights of the Accused

The Rome Statute36 provides that all persons are presumed

innocent until proven guilty before the Court in accordance with

the applicable law. The accused is entitled to a fair hearing

conducted impartially. He also has the right to be fully informed of

the charges against him, the right to have adequate time for the

preparation of his defence, the right to a speedy trial, the right not

to be compelled to testify or confess guilt, the right to examine the

witnesses against him, the right to obtain the attendance and

examination of witnesses on his behalf, the right for the burden of

36
Article 66.
 xlv

proof not to be imposed on him or any onus of rebuttal 37. The

Statute also establishes the rights of persons under investigation 38.

Any person being investigated shall not be compelled to

incriminate himself and should not be subjected to torture,

arbitrary arrest and detention.

The ICC has established an independent Office of Public Counsel

for the Defence (OPCD) to provide logistical support, advice and

information to defendants and their counsels’ 39.The OPCD also

helps to safeguard the rights of the accused during the initial

stage of an investigation.

2.7.2 Participation of Victims

37
Ibid. Article 67.
38
Ibid. Article 55.
39
http://en.wikipedia.org/wiki/International_Criminal_Court>accessed on 21 January 2015.
 The Rome Statute and the Court’s Rules of Procedure and

Evidence grant series of rights to victims and enable them

participate in the proceedings before the Court 40.

Participation may occur at various stages of the proceedings

and may take different forms. This is done through a legal

representative and it is usually conducted impartially in a way not

inconsistent with the rights of the accused. There is a Victims and

Witnesses Unit set up by the Registrar. It provides, in consultation

with the Office of the Prosecutor, protective measures and security

arrangements, counseling and other appropriate assistance for

witnesses, victims who appear before the Court and others who

are at risk on account of the testimony given by such witnesses 41.

The Rules of Procedure and Evidence stipulate the time for

victim participation in proceedings before the Court. They must

send a written application to the Court Registrar and the Victims’

Participation and Reparation Section, which submits the

40
Bottiglierio I, The International Criminal Court- Hope for the Victims (32 SGI Quarterly, April 2003)
p.13
41
Ibid. Article 43 (6).
 xlvii

application to the competent Chamber that decides on the

arrangements for victims’ participation in the proceedings. The

Chamber may reject the application if it considers that the person

is not a victim. Individuals who wish to make applications to

participate in proceedings before the Court must therefore provide

evidence proving they are victims of crimes which come under the

jurisdiction of the Court in the proceedings commenced before it.

Victims are free to choose their legal representatives who must

equally be as qualified as the counsel for the defence and be

fluent in one of the Court's two working languages i.e. English or

French42.

To ensure efficient proceedings, particularly in cases with

many victims, the competent Chamber may ask victims to choose

a joint legal representative who would represent them all. If the

victims are unable to appoint a joint legal representative, the

Chamber may ask the Registrar to appoint one on behalf of the

victims. The Victims’ Participation and Reparation Section is

42
http://en.wikipedia.og/wiki/International_Criminal_Court>accessed on 21 January 2015.
responsible for assisting victims with the organisation of their legal

representation before the Court.

When victims do not have the means to pay for a joint legal

representative appointed by the Court, they may request financial

aid from the Court to pay him. The Counsel participates in the

proceedings before the Court by filing submissions and attending

the hearings.

The Registry and the Victims’ Participation and Reparation

Section are saddled with the responsibility of notifying the victims

about the proceedings. The Victims’ Participation and Reparation

Section has wide discretion to use all possible means to give

adequate publicity to the proceedings of the Court.

2.7.3 Reparations for Victims

The Rome Statute43 empowers the Court to establish the

principles relating to reparations in respect of victims, which

include restitution, compensation and rehabilitation. The Court

must also enter an order against a convicted person stating the

43
Article 75.
 xlix

appropriate reparation for the victims or their beneficiaries, which

may be in form of restitution, compensation or rehabilitation.

Victims interested in reparations have to file a written

application with the Registry, which must contain the evidence laid

down in Rule 94 of the Rules of Procedure and Evidence of the ICC.

Victims may also apply for protective measures aimed at

confiscating the property of the accused after been declared guilty.

It should be noted that reparation proceedings take place after the

person prosecuted has been declared guilty.

The ICC has the option of granting either individual

reparation, collective reparation (where a whole group of victims

or a community is concerned) or both. If the Court decides to order

collective reparation, it may order that reparation be made

through the Victims' Fund and the reparation may then also be

paid to an inter-governmental, international or national

organisation44.

44
http://en.wikipedia.org/wiki/International_Criminal_Court>accessed on 21 January 2015.
2.8 Co-operation by States that are not Parties to Rome

Statute

One of the principles of international law is ‘pacta tertiis nec

nocent nec prosunt’45. This is also enshrined in the 1969 Vienna

Convention on the Law of Treaties46.

The Rome Statute provides that the co-operation of non-

party states with the ICC is voluntary and it is on an ad hoc

basis47.However, non-party states to the Rome Statute may still be

subject to an obligation to co-operate with ICC in certain cases.

When a case is referred to the ICC by the UN Security Council, all

UN member states are obliged to co-operate, since its decisions

are binding on all of them48.

Also, there is an obligation to respect and ensure respect for

international humanitarian law as provided by the Geneva

45
This means that a treaty does not create obligations or rights for states that are not parties to it without their
consent
46
Article 34.
47
Article 87(5a) of Rome Statute.
48
Article 25 of the United Nations Charter.
 li

Conventions and Additional Protocol I of 197749, which reflects the

absolute nature of international humanitarian law. Where non-

party states having entered into ad hoc agreements refuse to co-

operate, the Rome Statute provides that the court may inform the

Assembly of States Parties or Security Council (where the matter

was referred by it)50.

2.9 Referrals of the Court

Cases can be referred to the ICC through different means.

Pursuant to the Rome Statute, Article 1351 the prosecutor can

initiate an investigation on the basis of a referral from the United

Nations Security Council of from any State Party.

In addition, the prosecutor can initiate investigations proprio

motu on the basis of information on crimes within the jurisdiction

of the Court received from individuals or organizations

(“communications”)52

49
Article 89.
50
Article 87(5b) of Rome Statute.
51
Ibid
52
ICC >situations and cases http:/www.icc-cprint/menus/ICC/situations+and+cases.
 To date, four States Parties to the Rome Statute - Uganda,

the Democratic Republic of the Congo, the Central African Republic

and Mali - have referred situations occurring on their territories to

the Court. In addition, the Security Council has referred the

situation in Darfur, Sudan, and the situation in Libya - both non-

States Parties. After a thorough analysis of available information,

the Prosecutor has opened and is conducting investigations in all

of the above-mentioned situations.

On 31 March 2010, Pre-Trial Chamber II granted the

Prosecution authorization to open an investigation proprio motu in

the situation of Kenya. In addition, on 3 October 2011, Pre-Trial

Chamber III granted the Prosecutor's request for authorization to

open investigations proprio motu into the situation in Cote d'lvoire.

Due to the circumstances of cases, the prosecutor may

decide either to53

i) Decline to initiate an investigation where the information

fails to satisfy the factors set out in Article S3 (1) (a)-(c).

53
ICC-OTP Policy Paper on Preliminary Examinations November 2013 p 5.
 liii

ii) Continue to collect information on crimes and relevant

national processing’s in order to establish a sufficient factual

and legal basis to render a determination; or

iii) Initiate the investigation, subject to judicial authorization as

appropriate.

Due to the jurisdictional capacity of the Court, preliminary

examination may only be initiated by the office taking into account

any information on crimes within the jurisdiction of the Court 54.

The OTP is currently conducting preliminary examinations in a

number of situations including Afghanistan, Georgia, Guinea,

Colombia, Honduras, Korea and Nigeria.

2.10 Referrals by State Parties

The Court through the Office of the Prosecutor conducts

investigations in countries where it has been reported that war

crimes took place and as such the court has opened investigations

in the following countries: Uganda, Democratic Republic of the

Congo, Central African Republic, Sudan and Kenya.

54
Ibid p 18.
2.10.1 Uganda

In December 2003, the government of Uganda, a state party,

referred to the Prosecutor the situation concerning the Lord’s

Resistance Army (LRA) in Northern Uganda. The Prosecutor after

thorough analysis of available information concluded there was a

reasonable basis to open an investigation in Northern Uganda 55.

On 8 July 2005, the Court issued arrest warrants for the five senior

leaders of the Lord's Resistance Army (LRA). They were Joseph

Kony, Vincent Otti, Okot Odhiambo, Dominic Ongwen, and Raska

Lukwiya56.On 30 September 2005, media reports indicated that

Dominic Ongwen had been killed. On 6 July 2006, ICC Pre-Trial

Chamber unsealed results of DNA tests conducted on the corpse

reported to be that of Dominic Ongwen, indicating that the body

was not his own. On 11 July 2007, the proceedings against Raska

Lukwiya were terminated following his death.

The ICC has established a field office in Kampala, Uganda to

support its operation. The government of Uganda says it is

considering establishing a national criminal tribunal that meets

55
http://www.iccnow.org/mod=casessituations>accessed on 21 June 2015.
56
Ibid.
 lv

international standards, thereby allowing the ICC warrants to be

set aside.

Presently the cases The Prosecutor v. Joseph Kony, Vincent

Otti, and Okot Odhiambo57 and The Prosecutor v. Dominic

Ongwen58 are currently being heard before Pre-Trial Chamber II.

Five warrants of arrest have been issued against [the] five top

members of the Lords Resistance Army (LRA). Following the

confirmation of the death of Mr Lukwiya, the proceedings against

him have been terminated. On 16 January 2015, Dominic Ongwen

was surrendered to the ICC's custody and transferred to the ICC

Detention Centre on 21 January 2015. His initial appearance

before the single Judge of Pre-Trial Chamber II took place on 26

January 2015. The opening of the confirmation of charges hearing

in respect of Dominic Ongwen is scheduled for 21 January 2016. On

6 February 2015, Pre-Trial Chamber II severed the proceedings

against Dominic Ongwen from the Kony et al. case. The three

remaining suspects are still at large.

2.10.2 Central African Republic

57
ICC-02/04-01/05,
58
ICC-02/04-01/15
 The situation in Central African Republic was the third

referral to be submitted to the Prosecutor by a State Party,

following referrals from Uganda and the Democratic Republic of

the Congo. In December 2004, the government of the Central

African Republic, a state party, referred to the Prosecutor, crimes

within the jurisdiction of the court committed within its territory

since the date of entry into force of the Rome Statute and the

Prosecution’s investigations were opened on 22 May 2007 59,

focusing on allegations of killing and rape between 28 October

2002 and 15 March 2003, a period of intense fighting between

government and rebel forces.

On 23 May 2008, the court issued an arrest warrant for Jean-

Pierre Bemba Gombo, a former Vice President of the country,

charging him with war crimes and crimes against humanity,

committed when he interfered in the events in the country in 2002

and 2003. He was arrested by the Belgian authorities and

surrendered to the Court on 3 July 2008.

59
Ibid.
 lvii

The situation was referred to the Court by the Government of

the Central African Republic in December 2004. The Prosecutor

opened an investigation in May 2007. The trial in the case The

Prosecutor v. Jean-Pierre Bemba Gombo60 started before Trial

Chamber III on 22 November 2010, for two charges of crimes

against humanity and three charges of war crimes, and the closing

oral statements took place on 12 and 13 November 2014. The

judges have commenced their deliberations and the judgement

will be pronounced in due course. On 11 November 2014, Pre-Trial

Chamber II partially confirmed the charges for Jean-Pierre Bemba

Gombo, Aime Kilolo Musamba, Jean-Jacques Mangenda Kabongo,

Fidele Babala Wandu, and Narcisse Arido and committed the five

suspects to trial for offences against the administration of justice

allegedly committed in connection with the case of the Prosecutor

v. Jean-Pierre Bemba Gombo61. On 30 January 2015, the Presidency

of the ICC constituted Trial Chamber VII, which will be in charge of

the trial in this case. The opening of the trial is scheduled for 29

September 2015. On 21 October 2014, Pre-Trial Chamber II

60
ICC -01/05-01/08,ICC-01/05-01/13
61
Ibid
ordered the interim release of Aime Kilolo Musamba, Jean-Jacques

Mangenda Kabongo, Fidele Babala Wandu and Narcisse Arido. The

suspects were subsequently released from ICC custody. On 29 May

2015, the Appeals Chamber reversed and remanded to Trial

Chamber VII the decisions ordering their interim release. However,

the Chamber found that, taking into account the length of time

that has passed since their release, it would not be in the interests

of justice for the suspects to be re-arrested. On 29 May 2015, the

Appeals Chamber also reversed and remanded to Trial Chamber VII

the decision ordering Mr. Bemba's interim release in the context of

this case.

Central African republic II: On 24 September 2014, following an

independent and comprehensive preliminary examination, the

Office of the Prosecutor announced the opening of open a second

investigation in the Central African Republic (CAR) with respect to

crimes allegedly committed since 2012.

On 30 May 2014, the ICC Prosecutor received a referral from the

Central African authorities regarding crimes allegedly committed

on CAR territory since 1 August 2012. The situation is assigned to

 lix

Pre-Trial Chamber II. On 24 September 2014, following an

independent and comprehensive preliminary examination, the

Office of the Prosecutor announced the opening of open a second

investigation in the Central African Republic (CAR) with respect to

crimes allegedly committed since 2012.

2.10.3 Mali

On 16 January 2013, the Office of the Prosecutor opened an

investigation into alleged crimes committed on the territory of

Mali since January 2012.

The situation in Mali was referred to the Court by the Government

of Mali on 13 July 2012. After conducting a preliminary

examination of the situation, including an assessment of

admissibility of potential cases, the OTP determined that there

was a reasonable basis to proceed with an investigation. The

situation in Mali is assigned to Pre-Trial Chamber II.

2.10.4 Democratic Republic of the Congo

In this situation, the following cases have been brought

before the relevant chambers: The Prosecutor v. Thomas Lubanga

Dyilo62; The Prosecutor v. Bosco Ntaganda63; The Prosecutor v.

Germain Katanga64; The Prosecutor v. Mathieu Ngudjolo Chu65i; The

Prosecutor v. Callixte Mbarushimana66; and The Prosecutor v.

Sylvestre Mudacumura67. Thomas Lubanga Dyilo, Germain Katanga

and Bosco Ntaganda are currently in the custody of the ICC.

Sylvestre Mudacumura68 remains at large.

Trial Chamber I convicted Mr Lubanga Dyilo on 14 March

2012. The trial in this case, The Prosecutor v. Thomas Lubanga

Dyilo, had started on 26 January 2009. On 10 July 2012, he was

sentenced to a total period of 14 years of imprisonment. The time

he spent in the ICC's custody will be deducted from this total

sentence. On 1 December 2014, the Appeals Chamber confirmed,

by majority, the verdict declaring Mr Lubanga guilty and the

decision sentencing him to 14 years of imprisonment. On 7 August

2012, Trial Chamber I issued a decision on the principles and the

process to be implemented for reparations to victims in the case.

62
ICC-01/04-01/06
63
ICC-01/04-02/06
64
ICC-01/04-01/07
65
ICC-01/04-02/12
66
ICC-01/04-01/10
67
ICC-01/04-02/06
68
Ibid
 lxi

On 3 March 2015, the Appeals Chamber amended Trial Chamber

I's order for reparations and instructed the Trust Fund for Victims

to present a draft implementation plan for collective reparations to

the newly constituted Trial Chamber I within six months.

The trial in the case of The Prosecutor v. Germain Katanga

and Mathieu Ngudjolo Chui started on 24 November 2009. Closing

statements in the case were heard from 15 to 23 May 2012. On 21

November 2012, Trial Chamber II decided to sever the charges

against Mathieu Ngudjolo Chui and Germain Katanga. On 18

December 2012, Trial Chamber II acquitted Mathieu Ngudjolo Chui

of the charges of war crimes and crimes against humanity and

ordered his immediate release. On 21 December 2012, Mathieu

Ngudjolo Chui was released from custody. The Office of the

Prosecutor has appealed the verdict. On 27 February 2015, the

Appeals Chamber confirmed the decision acquitting Mathieu

Ngudjolo Chui of charges of crimes against humanity.

On 7 March 2014, Trial Chamber II found German Katanga

guilty, as an accessory, within the meaning of article 25(3)(d) of

the Rome Statute, of one count of crime against humanity

(murder) and four counts of war crimes (murder, attacking a

civilian population, destruction of property and pillaging)

committed on 24 February 2003 during the attack on the village

of Bogoro, in the Ituri district of the DRC. The Chamber acquitted

Germain Katanga of the other charges that he was facing. On 25

June 2014, the Defence for Germain Katanga and the Office of the

Prosecutor discontinued their appeals against the judgment in the

Katanga case. The judgment is now final. On 23 May 2014, Trial

Chamber II sentenced Germain Katanga to a total of 12 years'

imprisonment. The time spent in detention at the ICC'- between

18 September 2007 and 23 May 2014 - will be deducted from the

sentence. Decisions on possible reparations to victims will be

rendered later.

The confirmation of charges hearing in the case the

prosecutor V. Callixte Mbarushimana took place from 16 21

September 2011. On 16 December 2011, Pre-Trial Chamber I

decided by majority to decline to confirm the charges against Mr.

Mbarushimana. Mr. Mbarushimana was released from the ICC’s

custody on 23 December 2011, upon the completion of the

 lxiii

necessary arrangements, as ordered by pre-Trial Chamber 1, on

22 March 2013, Bosco Ntaganda surrendered himself voluntarily

and is now in the ICC's custody. His initial appearance hearing

took place before Pre-Trial Chamber II on 26 March 2013. The

confirmation of charges hearing in the case took place on 10-14

February 2014. On 9 June 2014, Pre-Trial Chamber II unanimously

confirmed charges consisting in 13 counts of war crimes (murder

and attempted murder; attacking civilians; rape; sexual slavery of

civilians; pillaging; displacement of civilians; attacking protected

objects; destroying the enemy's property; and rape, sexual

slavery, enlistment and conscription of child soldiers under the

age of fifteen years and using them to participate actively in

hostilities) and 5 counts of crimes against humanity (murder and

attempted murder; rape; sexual slavery; persecution; forcible

transfer of population) against Bosco Ntaganda and committed

him for trial before a Trial Chamber. On 22 April 2015, Trial

Chamber VI rescheduled the opening of the trial, initially

scheduled for 2 June 2015, to the second or the third week of July

2015. A specific date will be announced in due course.

2.11 Referrals by the UN Security Council

Cases can also be referred to the Courts by UN Security

Council. Cases that have been referred by the council include;

2.11.1 Libya

On 26 February 2011, the United Nations Security Council

decided unanimously to refer the situation in Libya since 15

February 2011 to the ICC Prosecutor. On 3 March 2011, the ICC

Prosecutor announced his decision to open an investigation in the

situation in Libya, which was assigned by the Presidency to Pre-

Trial Chamber I. On 27 June 2011, Pre-Trial Chamber I issued three

warrants of arrest respectively for Muammar Mohammed Abu

Minyar Gaddafi, Saif Al-lslam Gaddafi 69 and Abdullah Al-Senussi for

crimes against humanity (murder and persecution) allegedly

committed across Libya from 15 until at least 28 February 2011,

through the State apparatus and Security Forces. On.22 November

2011, Pre-Trial Chamber I formally terminated the case against

Muammar Gaddafi due to his death. The two other suspects are

not in the custody of the Court. On 31 May 2013, Pre-Trial Chamber

69
ICC-01/11-01/11
 lxv

I rejected Libya's challenge to the admissibility of the case against

Saif Al Islam Gaddafi and reminded Libya of its obligation to

surrender the suspect to the Court. On 21 May 2014, the ICC

Appeals Chamber confirmed the decision of Pre-Trial Chamber I

declaring the case against Saif Al-Islam Gaddafi admissible. On 11

October 2013, Pre-Trial Chamber I decided that the case against

Abdullah Al-Senussi is inadmissible before the ICC as it was

currently subject to domestic proceedings conducted by the

Libyan competent authorities and that Libya is willing and able

genuinely to carry out such investigation. On 24 July 2014, the

Appeals Chamber unanimously confirmed Pre-Trial Chamber I's

decision, declaring the case against Abdullah Al-Senussi

inadmissible before the ICC.

2.11.2 Sudan

On 31 March 2005, the United Nations Security

Council70referred the prevalent situation in Darfur since 1 July 2002

to the Prosecutor. In February 2007, the Prosecutor announced

that the Sudanese humanitarian affairs minister, Ahmad

Muhammad Harun and Janjaweed militia leader Ali Kushayb were

the key suspects accused of war crimes and crimes against

humanity. On 2 May 2007, the court issued arrest warrants for the

two men. However, Sudan claimed the court has no jurisdiction

over this matter and subsequently refused to hand over the

suspects.

Subsequently on 14 July 2008, the Prosecutor accused

Sudanese President Omar al-Bashir of genocide, crimes against

humanity and war crimes. The court issued an arrest warrant for

President al-Bashir on 4 March 2009 for war crimes and crimes

against humanity, but ruled that there was insufficient evidence to

prosecute him for genocide. The indictment is laudable because Al-

Bashir happens to be the first sitting head of state indicted by the

70
119 Resolution 1593
 lxvii

ICC. President Omar al-Bashir however denied all the charges. In

July 2009, the member-states of the African Union (A.U) agreed not

to co-operate in his arrest. Nevertheless, several A.U members

who are also states parties of the ICC, including South Africa and

Uganda, stated that al-Bashir might be arrested if he entered their

territory. He was later in Chad Kenya and South Africa but the

countries did not arrest him despite being states parties to the

Rome Statute.

On February 3, 2010, the Appeals Chamber of the ICC

reversed the Pre-Trial Chamber’s rejection of the genocide charge,

ruling that the latter had applied a stringent standard of proof. This

has made it possible for the Court to include genocide in the list of

charges against President Omar al-Bashir and a second warrant of

arrest was issued against him on 12 July 2010.

There are five cases in the situation in Darfur, Sudan: The

Prosecutor v. Ahmad Muhammad Harun ("Ahmad Harun") and Ali

Muhammad Ali Abd-AI-Rahman ("Ali Kushayb") 71; The Prosecutor v.

Omar Hassan Ahmad Al Bashir;72 The Prosecutor v. Bahar Idriss Abu

71
ICC-02/05-01/07
72
ICC- 02/05-02/09
Garda73; The Prosecutor v. Abdallah Banda Abakaer Nourain74; and

The Prosecutor v. Abdel Raheem Muhammad Hussein 75.

Warrants of arrest have been issued by Pre-Trial Chamber I for

Messrs Harun, Kushayb, Al Bashir and Hussein. The four suspects

remain at large.

A summons to appear was issued for Mr Abu Garda, who

appeared voluntarily before the Chamber on 18 May 2009. After

the hearing of confirmation of charges, on February 2010, Pre-Trial

Chamber I declined to confirm the charges. Mr Abu Garda is not in

the custody of the ICC.

Two other summonses to appear were issued for Mr Banda and Mr

Jerbo who appeared voluntarily on 17 June 2010; the confirmation

of charges hearing took place on 8 December 2010. On 7 March

2011, Pre- Trial Chamber I unanimously decided to confirm the

charges of war crimes brought by the ICC's Prosecutor against Mr

Banda and Mr Jerbo, and committed them to trial. On 4 October

2013, Trial Chamber IV terminated the proceedings against Saleh

73
ICC 02/05-03/09
74
ICC-02/05-03/09
75
ICC-02/05-01/12
 lxix

Jerbo after receiving evidence pointing towards the death of Mr

Jerbo on 19 April 2013. On 11 September 2014, Trial Chamber IV

issued an arrest warrant against Abdallah Banda Abakaer Nourain.

The Chamber also vacated the trial date previously scheduled to

open on 18 November 2014 and directed the ICC Registry to

transmit the new requests for arrest and surrender to any State,

including the Sudan, on whose territory Mr Banda may be found.

2.12 Initiated Proprio motu by Prosecutor

The prosecutor has the authority to on his own initiate

proceedings against any state. Before this can be done, he must

satisfy some conditions. The following are cases where the

Prosecutor initiated proprio motu (on his own motion).

2.12.1 Cote D'ivoire

Cote d'Ivoire, was not party to the Rome Statute at the time,

had accepted the jurisdiction of the ICC on 18 April 2003; more

recently, and on both 14 December 2010 and 3 May 2011, the

Presidency of Cote d'Ivoire reconfirmed the country's acceptance

of this jurisdiction. On 15 February 2013, Cote d'lvoire ratified the

Rome Statute. On 3 October 2011, Pre-Trial Chamber III granted

the Prosecutor's request for authorisation to open investigations

proprio motu into the situation in Cote d'lvoire with respect to

alleged crimes within the jurisdiction of the Court, committed

since 28 November 2010, as well as with regard to crimes that

may be committed in the future in the context of this situation. On

22 February 2012, Pre-Trial Chamber III decided to expand its

authorisation for the investigation in Cote d'lvoire to include

crimes within the jurisdiction of the Court allegedly committed

between 19 September 2002 and 28 November 2010.

Laurent Gbagbo76 and Charles Bl^ Goude are accused of four

counts of crimes against humanity (murder, rape, other inhumane

acts or - in the alternative - attempted murder, and persecution)

allegedly committed in the context of post-electoral violence in

Cote d'lvoire between 16 December 2010 and 12 April 2011.

76
ICC-02/11-01/12
 lxxi

Charges were confirmed against them on 12 June 2014 and 11

December 2014, respectively and their trial assigned to Trial

Chamber I. On 11 March 2015, Trial Chamber I joined the two

cases in order to ensure the efficacy and expeditiousness of the

proceedings. The opening of the trial in this case is scheduled for

10 November 2015. Laurent Gbagbo and Charles Ble Goude are in

the Court's custody.

On 22 November 2012, Pre-Trial Chamber I decided to

unseal a warrant of arrest issued initially on 29 February 2012

against Simone Gbagbo for four counts of crimes against

humanity allegedly committed in the’ territory of Cote d'lvoire

between 16 December 2010 and 12 April 2011. On 27 May 2015,

the Appeals Chamber confirmed the ICC Pre-Trial Chamber I's

decision of 11 December 2014, which declared the case against

Simone Gbagbo77 admissible before the ICC. Mrs. Gbagbo is not in

the custody of the Court.

2.12.2Kenya

77
ICC-02/11-01/12
 On 26 November 2009, the Prosecutor sought an

authorization from the Court to commence investigation on crimes

against humanity allegedly committed in the Republic of Kenya

during the post-election violence that took place between 2007

and 2008. The Judges of the Pre-Trial Chamber II of the ICC on 31

March 2010 granted the Prosecutor’s request 78. It was the first

time the Prosecutor used his powers to initiate an investigation

without first having received a referral from governments or the

UN Security Council. This was made possible by the fact that

Kenya had ratified the Rome Statute and had accepted the Court’s

jurisdiction over crimes not investigated or prosecuted by national

authorities. The Waki Commission, an international Commission of

Inquiry set up by the Kenyan Government to investigate the post-

election violence, submitted some documents and the list of some

suspects to the Prosecutor on 16 July 2009. The Court’s Presidency

on 6 November 2009 assigned the situation to Pre-Trial Chamber II.

On 31 March 2010, Pre-Trial Chamber II granted the

Prosecutor's request to open an investigation proprio motu in the

78
http://www.iccnow.org/?mod=casessituations>accessed on 21 January 2011.
 lxxiii

situation in Kenya, State Party since 2005. Following summonses

to appear issued on 8 March 2011, six Kenyan citizens voluntarily

appeared before Pre-Trial Chamber II on 7 and 8 April 2011. The

confirmation of charges hearing in the case The Prosecutor v.

William Samoei Ruto and Joshua Arap Sang79 were held from 1 to 8

September 2011. The confirmation of charges hearing in the case

The Prosecutor v. Uhuru Muigai Kenyatta 80 took place from 21

September to 5 October 2011. On 23 January 2012, the judges

declined to confirm the charges against Henry Kiprono Kosgey and

Mohammed Hussein Ali. Pre-Trial Chamber II confirmed the

charges against William Samoei Ruto, Joshua Arap Sang, Francis

Kirimi Muthaura and Uhuru Muigai Kenyatta and committed them

to trial. On 18 March 2013, the charges against Francis Kirimi

Muthaura were withdrawn. The trial of William Samoei Ruto and

Joshua Arap started on 10 September 2013. On 19 September

2014, Trial Chamber V(b) vacated the trial commencement date in

the case The Prosecutor v. Uhuru Muigai Kenyatta 81, which had

been provisionally scheduled for 7 October 2014. On 3 December

79
ICC-01/09-01/11
80
ICC-01/09-01/13
81
Ibid
2014, ICC Trial Chamber V(b) rejected the Prosecution's request for

further adjournment and directed the Prosecution to indicate

either its withdrawal of charges or readiness to proceed to trial.

Subsequently, on 5 December 2014, the Prosecutor filed a notice

to withdraw charges against Mr. Kenyatta. On 13 March 2015, Trial

Chamber V(B), noting the Prosecution's withdrawal of charges

against Mr Kenyatta, decided to terminate the proceedings in this

case and to vacate the summons to appear against him. On 2

October 2013, Pre-Trial Chamber II unsealed an arrest warrant

against Walter Osapiri Barasa82, initially issued on 2 August 2013,

for several offences against the administration of justice consisting

in corruptly or attempting to corruptly influencing ICC witnesses.

2.13 The Court and the General Principles of Criminal Law

The Rome Statute incorporates international standards and

principles for the prosecution of crimes. The court is guided by the

general principles of criminal law i.e. nullum crimen sine lege &

nulla poena sine lege. In essence, there is no crime or punishment

except in accordance with the law 83. Article 22 of the Rome Statute
82
ICC-01/09-01/13
83
Osborn’s Concise Law Dictionary, p.282.
 lxxv

provides that a person shall not be criminally responsible unless

the conduct constitutes, at the time it occurred, a crime within the

court’s jurisdiction. S.36 (8) of the Constitution of the Federal

Republic of Nigeria, 199984 also forbids retroactive laws.

Also, a person will not be prosecuted by the Court for any conduct,

which formed the basis of crimes for which the person has already

been convicted or acquitted by the Court or by any other court 85.

The Rome Statute also provides that a person will not be

prosecuted if he was under 18 years at the time of an alleged

crime86.

The Rome Statute guarantees fair trial and accordingly, the

accused must be present during the trial 87. He is presumed

innocent until proved guilty before the court in accordance with

applicable law and the onus is on the Prosecutor to prove the guilt

of the accused beyond reasonable doubt 88.

84
Cap.24, LFN 2004.
85
Article 20 of Rome Statute.
86
Ibid. Article 26.

87
Ibid. Article 63.
88
Ibid. Article 66(1-3)
 There are three means through which the ICC can compel a

person accused of having committed a crime to be brought before

it89. The first is by issuing an arrest warrant 90. The second means is

by issuing a provisional arrest warrant 91, and lastly by issuing a

summons where the Pre-Trial Chamber is satisfied that a summons

is sufficient to ensure the suspect’s appearance in urgent cases

where the required supporting documentation is not yet

available92. Member states are required to respond promptly to all

requests to execute such warrants and serve such summons in

their territory93.

At the conclusion of trial, the ICC has jurisdiction to impose

appropriate sentences. It could be in the form of imprisonment for

a number of specified years which may not exceed a maximum of

30 years94, and it can impose life imprisonment when justified by

89
Adeleke E.A, ’The Relevance of The International Criminal Court in Nigeria’ in Fountain Quarterly Law Journal Vol. 4. July
2006.pg.23
90
Articles 58, 89 and 91 of Rome Statute.
91
Ibid. Article 58(5) & 92.
92
Ibid. Article 58(7).

93
Ibid. Article 59(1).
94
Ibid. Article 77(1a).
 lxxvii

the extreme gravity of the crime and the individual circumstances

of the convicted person95.

2.14 Domestication of Rome Statute in Nigeria

Notwithstanding that Nigeria has ratified and assented to ICC

Statute96, it has not yet become part of Nigeria’s domestic law.

This is because Nigeria operates a dualist system with respect to

the incorporation of treaties97. It cannot be self-executing until a

law is promulgated to make it part of Nigerian law. This can be

done by creating a single piece of implementing legislation.

It is pertinent to note that an international treaty entered

into by Nigeria does not become binding until enacted into law by

the National Assembly and assented to by the President. This is in

accordance with Section 12(1) of the Constitution of the Federal

Republic of Nigeria, 199998 which provides that:

95
Ibid. Article 77(1b).

96
It was signed on 1 June 2000 and ratified on 27 September 2001.
97
http://www.currentanalyst.com>accessed on 21 January 2011.
98
Cap 24. LFN 2004.
 No treaty between the Federation and any other country

shall have the force of law to the extent to which any such treaty

has been enacted into law by the National Assembly.

This position was subsequently affirmed by the Supreme

Court in Sanni Abacha v. Fawehinmi99. Consequently, the National

Assembly passed the Rome Statute (Ratification and Jurisdiction)

Bill 2006 but the President did not assent the Bill.

The extent of applicability of the Rome Statute will be

determined when it conflicts the constitution because an

international treaty cannot override the provisions of the

constitution whenever there is a conflict. This is in accordance with

Section 1(1) of 1999 Constitution of the Federal Republic of Nigeria

which provides that:

The Constitution is supreme and its provisions shall have

binding force on all authorities and persons throughout the Federal

Republic of Nigeria.

99
(2000) 4 SC (pt.11) 1.
 lxxix

It also provides that any law that is inconsistent with the provisions

of the constitution shall be null and void to the extent of its

inconsistency and the constitution shall prevail 100. This implies that

the provisions of the Rome Statute after incorporation must not be

inconsistent with any section of the constitution otherwise it will

be null and void.

2.15 Contribution of the ICC to the Development of

International Law

The creation of the ICC constitutes the greatest improvement

to the development of international law since 1945. It has geared

up the two aspects of international law that deal with the

treatment of individuals i.e. human rights and humanitarian law.

One of the great innovations of the Rome Statute of the ICC and its

Rules of Procedure and Evidence is the right granted to victims.

For the first time in the history of international criminal justice,

victims have the opportunity to present their views and

observations before the Court. This provides the victims with the

100
Section 1(3) Constitution of the Federal Republic of Nigeria, 1999.
opportunity to be heard and obtain some form of reparation for

their sufferings where appropriate. This balance between

retributive and restorative justice enables the Court to bring

criminals to justice and also helps victims obtain justice.

Since the inception of the ICC, the attitude of the world

towards violations of human rights has moved greatly from

appeasement to justice. Majority of the perpetrator of these crimes

are now brought to justice. International tribunals have been

established in the former Yugoslavia Rwanda and Sierra Leone for

the prosecution of these offences.

The fight against impunity through the mechanism of

international tribunals and in recent times the ICC has effected

changes in international law.

 The ICC in a bid to defeat impunity has aided the

development of international law in its acts of upholding the

rule of law.

The ICC has helped to restore confidence in the rule of law.

This was done through its ability to hold accountable those

 lxxxi

who have committed grievous crimes irrespective of their

positions.

 The impartiality of the Court breeds confidence in the justice

system101 and it therefore serves to blunt the hatred of

victims and their desire for revenge.

Therefore, its impartiality helps the process of reconciliation;

it also serves the purpose of reducing tension and creating

the necessary condition for peaceful relations.

 The ICC has aided the development of international law in

the provision of an impartial and objective record of events.

This record has passed the test of judicial scrutiny and thus

acts as a historical account of events102.

 In the with the principles of the Court 103 an objective view is

taken of every Court proceeding and in the interest of

fairness and thoroughness measures are taken to ensure

bias control.
101
Legal developments in the New World Order Essays on International Comparative and Public Law in
Honour of Prof. U. O. Umozurike (OON) edited by M. O. Unegbu I, Okoronye Port Harcourt Jite Books
2009
102
Ibid p 256-262.
103
Ibid Art 30-33.
 A culture of accountability has been emphasized by the ICC.

Understanding among Nation States, Ease in operations of

International personalities and ability to checkmate Acts of

other Nations has come into play.

2.16 Conclusion

In all of its activities, the ICC observes the highest standards

of fairness and due process. It is a court of last resort and will not

act if a case is investigated or prosecuted by a national judicial

system unless national proceedings were not genuine. This could

happen where formal proceedings were undertaken solely to shield

a person from criminal responsibility104.

The success of the ICC depends not only on the widespread

ratification of the Rome Statute but also on states parties’

obligations under the treaty. This requires changes in national law

in accordance with existing laws in a given legal system. The Court

has carried out numerous investigations and also indicted those

found to be guilty.

104
http://www.icc-cpi.int/Menus/ICC/About+the+Court/ICC+at+a+glance accessed on 01 February 2015.
 lxxxiii

However, it has been faced with some challenges. The

Court’s achievements and the challenges it is grappling with will

be adequately discussed in the next chapter.

 CHAPTER THREE

ACHIEVEMENTS AND CHALLENGES OF THE COURT

3.1 Introduction

The Intentional Criminal Court (ICC) was created out of the

international communities’ grave concern as to dealing with

certain offences considered to constitute serious threat to the

continuance of human existence or dignity.

As discussed earlier, the international criminal court is a

mechanism that was permanently put in place to investigate

prosecute and punish individuals who were responsible for the

commission of grievous crimes of concern to humanity. Since the

Rome Statute came into force on 1 July 2002, the court has

developed into a fully functional institution that has aided in

attempting to end impunity in the world.

The court has also influenced the development of

international law by proving that efficient and transparent

international justice is viable.

 lxxxv

This court has recorded many achievements. However, it has

also been criticized and has many challenges to contend with. The

courts achievements and challenges will be discussed in this

chapter.

3.2 Achievements of the Court

Since its inception, the International Criminal Court (ICC) has

contributed majorly to the development of international law

particularly in the criminal aspect. The creation of the ICC

represents one of the biggest milestones of international law 105. Its

achievements are numerous and these are as follows:

One of the key innovations of the Rome Statute in regards to

international law is the protection and participation framework set

in place for victims, particularly victims of sexual crimes and

children. For the first time in the history of international criminal

justice, victims have the possibility under the statute to present

their views before the court106 victims are allowed to participate in

105
http://www.un.org/news >accessed on July 17 2015.
106
http;//www.gistprobono.org/id93.html>accessed on July 17 2015
the proceedings107 and are also entitled to reparations for the harm

suffered108.

In the light of the key responsibility of this court to provide

for the security, psychological well being, dignity and privacy of

witnesses, victims as well as their families, the victims and

Witnesses Unit was set up in the Registry.

This Unit provides in consultation with the office of the

prosecutor, protective and security arrangements, counseling and

other appropriate assistance for witnesses victims who appear

before the court and others who are at risk on account of

testimony given by witnesses109. Therefore, this unit includes staff

with expertise in trauma related to crimes of sexual violence 110, it

also adopts gender sensate measures to facilitate victims of such

crimes of sexual violence; and child witnesses, so victims are the

subject of specific protective measures and guidance111.

107
Article 68(3) of the Rome Statute
108
Ibid Article 75.
109
Ibid Article 43(6)
110
Ibid
111
Rule 17 of ICC Rules of procedure and evidence
 lxxxvii

The ICC has also provided thousands of victims the

opportunity to be heard and to speak about their suffering. Many

of them display exceptional courage in recalling their harrowing

experiences. The ICC presents their testimonies in court

transcripts and video recordings. Many victims play a crucial role

in the proceedings as witnesses and they contribute to the process

of establishing the truth. The victim-based provisions within the

Rome Statute provide victims with the opportunity to have their

voices heard and to obtain where needed some form of reparation.

It is this balance between retributive and restorative justice

that enables the ICC, not only to bring criminals to justice but also

help the victims obtain justice112.

Furthermore, there is also the establishment of vital court

infrastructure institution countries and the growing outreach

programme. The registry with the purpose of achieving the courts

mandate has established offices in some countries. In addition to

the headquarters in Hague and the ICC, UN liaison office in New

York, the Registry also established field offices on the African

112
<http://www.gist oprobono.org/id93 html
continent. An important task for the field offices like those in

Uganda and Chad is to support the investigations of the office of

the prosecutor.

The outreach programme is a process of establishing

sustainable communication between the court and communities

which are affected by the situations that are being investigated

and also the promotion of understanding and support of the

judicial process at various stages.

Additionally, the court upholds one of the twin pillars of

natural justice which is “audi alteram partem” ie hear the other

side113. Hence, the accused is given fair hearing in the course of

the proceedings before the ICC. The Rome Statute 114 provides that

the accused is presumed innocent until provide guilty. The rights of

the accused are on equal footing with that of the prosecution in a

bid to ensure that fair judgment is reached.

113
Osborn’s Concise Law Dictionary o. 44
114
Article 66(1).
 lxxxix

Another achievement of the Court is that it has added a new

element to negotiations and initiatives in the pursuit of peace 115.

Most of the world countries are committed to the idea that certain

crimes should never go unpunished116. As of 6 January 2015, 123

states have ratified or acceded to the Rome Statute and this has

created a sort of momentum towards ratifying the statute. The ICC

has also promoted democracy at the national level. The courts’

goal is the protection of human rights and this is gotten through

the cultivation, consolidation and improvement of democratic

institutions. The court therefore promotes its objectives by working

through national institutions and reorienting those institutions in a

democratic direction.

The ICC also takes over where national criminal justice fails

to act; it acts as deterrence to the commission of heinous crimes

and also ends the cycle of impunity by prosecuting previously

nonjusticiable cases.

3.3 Challenges of the Court

115
O’Brien, Patricia. The International Criminal Court 10 years after the Rome Statute-successes
Achieved and challenges Ahead. 2008 p2.
116
<http://www.economist.com>
 Notwithstanding the fact the International Criminal Court has

accomplished many important things; it continues to face serious

challenges. The challenges are multifarious and include lack of

Universal Ratification of the Rome Statute, problems in securing

the arrest and transfer of wanted suspects, issues in securing

effective state cooperation, the security issues faced by witnesses

and investigators, difficulties of funding and investigating in

conflict zones coupled with the structure of the court being weak.

All these have hampered effective execution of its mandate.

State cooperation is one of the crucial factors that determine

the credibility of the ICC as an impartial and independent

institution. Without the full co-operation of state parties to the

Rome Statute, and, in cases arising out of situations referred to the

court, the court cannot succeed in the fight against impunity 117. In

all stages of its activities, the court relies on the co-operation of

state parties to carry out its key responsibilities. The Rome Statute

provides the legal framework of international cooperation and

judicial assistance on the basis of which state parties shall

117
Bensouda, Fatou. “The International Criminal Court-Current Challenges and Future Prospects 2013 p.
5.
 xci

cooperate fully with the court in its investigation and prosecution

of crimes within the jurisdiction of the court 118. The court requires

support in so many areas including the arrest and surrender of

suspects119.

The ICC, although treaty based and primarily aimed at

strengthening international law enforcement while prioritizing and

facilitating national jurisdictions faces obstacles related to state

cooperation. This is due to the fact that orders and requests of ICC

are enforced through national jurisdictions. It is therefore

disheartening that supports for the ICC by member states fall short

of what is required to enable the court have a wider impact in

promoting international justice and helping to end impunity 120.

An example of the effect of this issue of co-operation is seen

in the indictment of Al-Bashir by the ICC since 2008 yet, states

have allowed him access to their countries without his being

handed over to the ICC.

118
Ibid Articles 86-102
119
Ibid Article 93
120
<htt://blog.soros.org>accessed on 20 July 2015
 An obvious limitation to the effectiveness of the ICC is the

refusal of the United States of America to sign the Rome Statute

and the court has faced fierce Us opposition 121. The country has

refused to cooperate with the court and consistently hindered its

work due to its concerns of possible charges against American

troops and diplomats.

Surprisingly, another challenge is that the ICC is in essence a

structurally weak court122. Why? This is due to the fact that the

states and future state-parties when elaborating the Rome Statute,

did not want a strong court. They did not want a court that would

be a potential threat to their sovereignty or to the independence of

their national courts. Bringing us back to the ICC negotiations in

the 1990s and in Rome 1998, there was about fifty court-

supportive or like-minded states, indifferent states, court-skeptical

states or states such as the US who essentially wanted to create a

permanent ad-hoc court in the control of the Security Council.

121
<http://www.global policy.org/international-justice/the-international-criminal-court.html? accessed
on 21 July 2015.
122
Kaul, Hans-Peter. Ten years International Criminal Court Remarks 2012 p. 5.
 xciii

Within these four different groups, there was however a

common denominator; A common fear that the future ICC might

be a potential threat to states sovereignty or to the independence

of national courts-in this situation, one had to develop a legal

device, a legal concept which would address this concern. “The

principle of complementarily” which in simple terms, means that

cases before the ICC are only admissible if and when states which

normally have criminal jurisdiction are either unable or unwilling to

prosecute the crimes in question123 .

Another limiting factor is the unprecedented, indeed gigantic

difficulty that the court in order to obtain the evidence required,

has to conduct the necessary, complex investigation in region

thousands of kilometers away from the Hague, in regions where

travel is difficult, the security situation volatile and where it may

be difficult to collect evidence.

Since 2009, it has been particularly noticeable that certain

states parties are trying to restrict funding for the court 124. The

123
Ibid p. 7.
124
Ibid p.9.
court also has issues of an administrative nature such as out IT

system. It is dependent on aid from different avenues.

The other challenge that the court faces is logistic and

jurisdictional issues. The regions where the activities are

performed are not easily accessible. The language barrier that

exist and the slow pace of proceedings and trial threaten the

fundamental right of the accused to be tried without undue delay.

The implication of African Leaders and International

Observers is that the court applies double standard. It has been

argued that it places undue emphasis on Africa especially as

regards the indictment of president Omar Al-Bashir of Sudan.

3.4 The Future of the Court

The International Criminal Court has marked more than 10

years of existence. Irrespective of the challenges they are facing

they have achieved some things and measures must be put in

place to ensure an effective cessation of the challenges and

efficient actions.
 xcv

Firstly, the Court has had issues with its prosecutorial

strategy and policies. They are to endeavour whenever

circumstances permit to be trial ready by the time we bring cases

before the chambers.

Mrs. Fatou Bensouda a prosecutor of the International

Criminal Court in a lecture 125 on the ICC and its present situation,

she has recognize the challenges and has given an idea of the

measures to be put in place.

She has recognized the need to bolster the collection of

evidence from varied sources and to use enhanced state of the art

methods of investigation.

The concept of in-depth open-ended investigation while still

maintaining a dear investigative focus should be used.

Apart from improving the quality and efficiency of

investigation and prosecutions and by extension the effectiveness,

greater emphasis should be placed on the impact of the

125
Bensouda F Ibid page 9.
preliminary examinations in a bid to enable contribution to the two

overarching goals of the Rome Statutes.

An argument against the ICC is the seeming act that the

court is strong against weak countries and weak against powerful

states. A solution to the argument is one that should be effected.

The UN should be speedily reformed. Another option is to

amend the referral and deferral powers in the Rome Statute. The

Assembly of the State Parties (ASP) or the UN General Assembly,

not the UNSC, should exercise the power of referral and deferral to

the ICC.

One of the most innovative features of the Rome Statute is in

the area of victim assistance and participation. It presents a

challenge to the court in balancing the rights of the defendant with

those of the victims. The court has sought to address this by

setting general guidelines for the participation of victims,

addressing modalities of participation, legal representation,

protection of victims and the dual status of victims and witnesses.

 xcvii

3.5 Conclusion

During the last Decade, the creation of the ICC is

unquestionably one of the major achievements of international

law.

One of the key achievements is its acknowledgement of the

right of victims126, but this court remains a work in progress; a

fragile part of a crucial and ongoing effort to entrench international

law and justice127,

It should be not that the aim of the ICC is to deter genocide

war crimes and crimes against humanity. Although the Court can’t

completely put on end to these crimes, its existence will succeed

in preventing some human rights atrocities that would otherwise

have been committed.

The ICC is not only an agent of the international community,

determined to prevent the commission of human rights atrocities

around the world, it is also and more importantly, an agent of

126
http://www.article2.org?accessed on 05 August 2015
127
http://www.un.org/news?accessed on 05 August 2015.
individual stats who are determined to preserve the liberty and

security of their nationals.

 xcix

CHAPTER FOUR

SUMMARY, CONCLUSION AND RECOMMENDATIONS

4.1 Summary

There is no gainsaying the fact that the ICC has played a

prominent role in curbing the activities of would-be violators of

International Law. Although it has been recognized for a long time

that there cannot be durable peace without justice, it is equally

difficult to conceive of true justice in a society that lacks peace.

This is because, there can be no healing without peace, there can

be no peace without justice and there can be no justice without

respect for human rights and the rule of law.

Facilitating the end of conflict and contributing to durable

peace are demanding challenges for the international community.

There are pain-staking efforts to surmount these challenges

through International mechanisms such as the ICC which triggers

legal obligations for states parties to the Rome Statute.

The creation of the ICC is historic and it now stands as a

permanent institution capable of punishing perpetrators of the

worst offence known to mankind and has an important by putting

would-be violators on notice that impunity will not be condoned-

success in the endeavour to combat impunity will be built upon

mutual trust, collaboration and assistance, and a genuine

objective to achieve the aim of the Rome Statute.

The ICC serves as a catalyst for enacting national laws

against international crimes. On the whole, the indictment of

Sudanese President Omar Al-Bashir shows that the ICC will indict

any person irrespective of how highly placed that person is.

In a nutshell, the establishment of the ICC is a welcome

development and it has contributed positively to the development

of international law.

4.2 Conclusion

Conclusively, the successes and the challenges which the

court has experienced is the very essence of progressive

development-it is the force that derives the constant effort to

improve upon what others before us have achieved, and the

motivation for us to strive always to create a more just world, in

which all are governed by the rule of law.

 ci

4.3 Recommendation

Irrespective of the challenges of the Court, it has attempted

to operate and these are recommendations to obtain effective

operations.

The ICC will be more efficient and its challenges

surmountable if efforts to improve the functioning of the court are

sustained to ensure its continual success in future. The following

should be implemented for the court to be more vibrant:

These include;

1. States equally have to reaffirm their commitment to combat

impunity for the most serious atrocities. Universality and

implementation of the Statute play an indispensable role in

that regard. The fight against impunity is the common

responsibility of all States whether or not they are parties to

the Rome Statute. They should not pay lip-service to the

 fight against commission of international crimes; rather they

should sign, ratify and implement the Rome Statute.

2. State cooperation is one of the crucial factors that determine

the credibility of the ICC as an impartial and independent

institution. This is basically important as regards arrest

warrants. Therefore, state parties should always assist the

court when it issues arrest warrants by putting the necessary

mechanisms in place to enforce the arrest warrants. This is

because without arrests, there cannot be trials and without

trials, victims will be denied justice and potential

perpetrators may be encouraged to commit new crimes with

impunity. The court's founding states must as a matter of

urgency begin to provide real political support to the court if

it is to ever hope to end the impunity of those responsible for

inhumane, debasing and conscience-shocking crimes.

3. The prosecutor must also start pursuing perpetrators in

positions of power in those countries that invite him or in

which he chooses to investigate. Government leaders should

not think that by inviting the ICC, they can use it as a tool
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against their opponents, and avoid rigorous scrutiny

themselves. If the court is to have the impact its founders

hoped of it, it needs convictions of government leaders who

abuse human rights because such convictions serve as

deterrence.

4. Also, for the court to truly serve as deterrence for those who

may contemplate atrocities in the future, the court needs to

expand its horizon. This is because all the formal

investigations are in Africa even though atrocities within the

court’s jurisdiction have been committed in other parts of

the world.

5. As a matter of fact, investigations usually carried out in

situations of ongoing conflicts are usually of security concern

because of the sensitivity. Based on this, security measures

should be put in place to guarantee the safety of members of

staff, victims, witnesses and other parties involved. More

flexibility and time to investigators on the ground to gather

evidence before settling on the suspect or charge should be

provided.
6. More importantly, the United States of America should

become a state party by signing and ratifying the Rome

Statute. The US is concerned about possible charges against

its citizens and has not been supportive of the court. The US

wields great influence and it is a super power in the comity

of nations. It is however disheartening that several years

after the Rome Statute was adopted, the US is yet to become

a state party. The country takes the top lead in combating

gross violation of human rights and so it influences other

states. If it becomes a state party, many countries will sign

the Rome Statute and the activities of the ICC will be more

effective and efficient.

7. In addition, there should be speedy investigation and

conclusion of trial. There is an apparent difference between

the prosecution of crimes at the national and international

level. Even though both require thorough consideration, the

complexity and magnitude of international crimes are

exceptional circumstances that influence the pace of

conducting and concluding such trials.

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8. The Politicization of the ICC should be dealt with and

adequate care be made to remove the mindset of African

leaders on the Courts being” focused on Africa.

 BIBLIOGRAPHY

BOOKS

Black’s Law Dictionary West Publishing Co. St Paul Minn 1990 6th ed.

Blacks Law Dictionary West Publishing Co. St Paul Minn 1990 9th ed

Legal Developments in the New World Order Essays on

International Comparative and public Law in Honor of Prof. U.

O. Umozurike (OON) Editted by M. O Unegbu I, Okorony PH

Jite Books 2009

Malanczuk P. Akehursts Modern Introduction to International Law

(Rutledge, London & New York 1997)

Osborn’s Concise Law Dictionary, Sweet & Maxwell London 10th ed.

Rome Statute of the International Criminal Court – 1998

Schabas, William. The International Criminal Court; A Commentary

on the Rome Statute Oxford, Oxford University Press, 2010.

Schabas,William; Introduction to the International Criminal Court.

Cambridge, Cambridge University Press, 2007

 cvii

Udiugwomen, A. F; Studies in Philosophical Jurisprudence Vitalis

Book 2006 3rd ed.

Umozurike, U. O ;Introduction to International Law (2008)

spectrum Publishers)

ARTICLES FROM JOURNALS

Adeleke E. A. “The Relevance of the International Criminal Court

in Nigeria” Fountain Quarterly Law Journal vol. 4 July 2006.

Bottiglierio I. the International Criminal Court-Hope for the Victims

(32 SGI Quarterly, April 2003) p 15.

ARTICLES FROM INTERNET

Bensouda Fatou, ”The International Criminal Court-Current

Challenges and future Prospects Dublin 2013.

ICC Publications “Understanding the International Criminal Court.

Kaul, Hans Peter, Ten Years: International Criminal Court Remarks’.

10 years ICC and the role of the United States in

International Justice Berlin 2012.

Naef a Khan. Fighting impunity: The International Criminal Court

and the African Union

O’Brien Patricia. The International Criminal Court 10 years after the

Rome Statute- Successes Achieved and Challenges Ahead.

International Society for the Reform of Criminal Law Dublin

2008.

Zhu Wengi, “On Co-operation by states not Party to ICC,

International Review of the Red Cross Vol. 88, No 861 of

March 2006 pp 87-110 at p90.

Internet Resources

http://www.un.org.law/ICC

http://en.m.wikipedia.org/wiki/internationa-criminal-court.

http://www.make warshistory.org.uk/index/rome-statutehtml.
 cix

www.ICCnow.org/?mod=court.

http://wapedia.mobi/en/

http://en.wolo[edia.org/wiki/states-parties-to-the Rome statute_ of

the_International_Criminal_Court.

http:wwwicc-cipi.int/menus/ICC/chambers/structure of the
Court/Registry? The Registry.html

http:www.ICC-Cipi.int/menus/ICC/situations and cases

www.current analysit.com

http:low.gist probono.org/did93, html

http:///www.econonist.com/

http://www.global policy.org/intenrationaljustice/the-international-
criminal-court.html

http:www.article2.org?