The Future of Icc

The International Criminal Court is the latest and most promising development in the institutionalization of global justice. In the words of the former UN Secretary General, Kofi Annan, it represents “a giant step forward in the march towards universal human rights and the rule of law.” It has been created with much support and high expectations, with the objective of not only empowering justice, but more importantly, of spreading the duty to justice. The ICC signifies a vital step of subjecting state sovereignty to the international humanitarian law; the Court is able to evaluate the state’s adherence to international law, and dictate them to abide by the law. Unsurprisingly, this power of the Court has raised much concern, which are justified by precedents. Empirical evidences confirm that international institutions are subject to exploitation and abuse, to further the personal or political interests of either the states or the bureaucrats. And due to the substantial power and authority of the ICC, such abuses can be detrimental. How can we be assured that the Court will stay true to its mandate of serving the international community, and not be exploited?

The answer lies in the innate structure of the ICC and its subsequent system of control. The Court is regulated both by the Court itself and the outside actors in direct and indirect ways. The direct form of regulation lies in the procedural structure, which allows the states and the defendant to challenge the Court’s legitimacy. The indirect regulation is found in the Court’s discretion, which is fueled by its need to remain impartial and legitimate in the eyes of community.

The direct regulation by the outside actors is often misconstrued as a concession, a necessary step of compromise to encourage the participation of states. However, this is not entirely true. It is a concession in that the Court yielded its monopoly on control. But the rationale behind this division of power is to protect the interest of the Court, not the interest of the state. It is in the interest of the Court to remain faithful to the law, but the monopoly of power would most likely cause it to become dysfunctional. The best way to ensure the Court’s own compliance to the law is established by dividing power and establishing a system of checks and balances. Within the international judicial system, both the states and the Court are equal subjects to the international law. The Court’s authority to challenge the state is founded it its adherence to the law. Likewise, the states have authority to challenge the Court on the same basis. The power to challenge the Court cannot be based on the rule of politics or diplomacy, but rather from the rule of law; the Court can only be contested on the grounds of its lawfulness. Thus, this system of checks and balances allows the Court to stay within its mandate while preventing any exploitation by the state. This method of checks and balances is achieved by partitioning the power into the �power of control’ and the �power of appeal.’ �The Power of Control’ is concerned with the “very existence of the community, its decision process, and its continuing efficient operation.” The �Power of Appeal,’ on the other hand, is concerned with rectifying errors, and ensuring “conformity with the key policies of the community.” In other words, the �power of control’ is the power to undertake the litigation proceedings, while the �power of appeal’ is the power to determine whether the litigation process was in compliance to the international law and the Rome Statute.

Within the ICC, the state is given priority in holding the �power of control.’ The rule of complementarity allows the states to have primacy of jurisdiction, and the state can try the individuals in their own court in the manner prescribed by international law. The Court is endowed with the �power of appeal,’ where they have the authority to assess whether the state was “unwilling or unable to genuinely carry out the investigation or prosecution.” The unwillingness or the inability of the state court is assessed from “the standpoint of procedural and substantial fairness.” These consist of proceedings shielding the prosecuted person, an unjustified delay, lack of independent or impartial proceedings, lack of resolve, or a sham trial.

In this sense, the Court stands above the state, in that it can assess the state’s capability in the legal system. And since this assessment is subject to interpretation and the Court has the potential to be exploited for other interests. This exploitation is prevented by the state’s �power of appeal,’ where the Court decision is subject to judgment. First, the state has the right to hearings before the Pre-Trial Chamber, where they can argue