Monday, 15 September 2014

#ICC: The demise of State-Referral? (Part II)

Last week we examined in an introduction, the continued withering of the state-referral technique of triggering the ICC jurisdiction, This week we continue by exploring further why states are now not ready to refer themselves to the Court. William Schabas, the criminal law guru, in an edited volume (The International Criminal Court and National Jurisdictions) views the state-referral technique as a 'trap for the court'. He writes: "If a State refers a situation against itself, that is, against its rebels, in the context of a conflict, it is doing so with a result in mind." He argues that for a state like Uganda, the result involved withdrawing the threat of prosecution in exchange of something. As pointed out in the previous posting, state-referrals have been used by governments to deal with dissidents and in the cases of Uganda and CAR, rebels that fought the government. It has also been argued that this mode of referral was also used by governments to pass responsibility to another party, and in this case the ICC, under the excuse of being willing but unable to prosecute international crimes. 

All the eight cases/situations before the ICC are all African in nature. This has been interpreted in various quarters but mostly in Africa as an affront to Africa's sovereignty while others have argued that the ICC is targeting Africa and Africans. Since the last state-referral in December 2004, there have been no further referrals pursuant to article 14. The UN Security Council referred the Darfur situation to the ICC in march 2005 while other cases have been initiated by the Prosecutor's proprio motu mechanism. States have been encouraged to assume obligations on crimes of international nature committed in their territories. States are more and more viewing the state-referral as a 'trap' by the ICC. When the African Union (AU) adopted a Resolution regarding the International Criminal Court in October, 2013, it was a statement that no other African country will refer itself again to the Court. At the nascent stages of the ICC, state-referrals gave the Court credibility. With the seemingly geographical targeting, state-referrals will wither.  

States now view the self-referral method as selling its sovereignty to an external party. When Kenyan legislators in 2013 voted to withdraw from the ICC, they did so in an act of defiance. Kenyan President Uhuru Kenyatta and his VP William Ruto face criminal charges before the court. The legislators just like the AU resolution, saw the ICC as targeting Africans and infringing on their sovereignty. It looks unlikely that another African or indeed any other state party to the Rome Statute will refer itself to the ICC in the new future. Regardless of the imminent demise of state-referral technique, the ICC is facing many other challenges mostly on its credibility. Many have questioned its selective method of cases while at the same time it not initiating investigations in cases where crimes against humanity, war crimes continue to be carried out. The Court needs a reevaluation of its mandate, legality and its future.   

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