#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.   

#ICC: The demise of State-Referral?

The International Criminal Court is a Court of last resort. The Court is a permanent institution with powers to exercise its jurisdiction over persons who bear the greatest responsibility for crimes of international concern. Conscious of the history of criminal acts against people, the world envisaged to repress such crimes through the creation of a permanent criminal tribunal. The atrocities committed are now monitored by the ICC by bringing the perpetrators who bear the most responsibility to justice. Even with the legal backing, the ICC has faced challenges on the question of cases it brings to book and the situations it omits. Equally, the ICC has had its detractors as well as proponents. 

The Court's jurisdiction can be triggered by three ways. The first is the state-referral or the self-referral, the second is through the UN Security Council referral and the last is through the prosecutors own volition also referred to as proprio motu. Of particular interest, we shall look at the 'self-referral' or 'state-referral' technique of triggering the Court's jurisdiction. Article 14 of the Rome Statute of the International Criminal Court allows a State Party to refer a situation, including crimes committed within the state's own jurisdiction, to the ICC Office of the Prosecutor (OTP) for investigation. There is no doubt, this mode of referral has had controversies among legal scholars. It is worth noting that of the eight situations at the ICC, only the first three were state referrals. It has been argued, rightly so, that self-referrals are inconsistent with the independence of the Court and its complementarity principle. Others have argued that state-referrals have been used by governments to fight oppositions in their countries. The initial referral to the ICC was the Uganda self-referral in 2003. The government of Uganda referred the situation in northern Uganda where atrocities were being committed by the Lord's Resistant Army (LRA). In March 2004, DRC also referred the situation in the Ituri region in Congo to the Court. And in December 2004, the OTP received another self-referral from Central African Republic. Self-referrals are well within the confines of the complementarity principle in Article 17.  Article 17 on admissibility of cases, points out that a case is admissible only when a state is unwilling and genuinely unable to prosecute a case. 

Are we seeing the demise of state-referral?

We continue from here in a subsequent posting.....