LNG501 Semester 2 2019 Assignment 3

Sample Research Assignment paper

1.0 Introduction
The International Criminal Court was created in 1998 by the so-called “Rome Statute”, a treaty
between nations that agreed to accept its jurisdiction. It began operation in 2002. It prosecutes
cases of genocide, crimes against humanity and war crimes. It can only investigate such
crimes, however, when they have taken place within one of the 124 states which signed up to
Rome Statute. Some of the most powerful nations, including the U.S., Russia and China are
not signatories.

In this essay, I will discuss several recent articles on the International Criminal Court illustrating
the problems that it confronts in its operation.

2.0 Summary and Evaluation

2.1 Source 1: “The International Criminal Court needs fixing” by Prince Zeid, Bruno Agente
et al. The Atlantic Council. Retrieved April 16, 2019. Online source.

This article is written by a number of former presidents of the body that oversees the ICC. It
Summaryexpresses disappointment in the functioning of the Court, but also defends its ideals. It calls
of main for an independent review of the functioning of the court in order that it can accomplish its
points – goals more successfully. The authors contrast the optimism of the founding of the Rome
what are Statute with the present state of the ICC, which they say is marred by poor management and
political disputes. They specifically refer to the ICC’s rejection of the request of the Prosecutor
the writers
Fatou Bensade to open an investigation into possible war-crimes committed by the U.S. in
trying to Afghanistan. The prosecutor was denied a visa to enter the United States to carry out an
prove? investigation. This incident illustrates how difficult it is for the ICC to function as a truly
international court, without the support or cooperation of states such as the U.S.A

The article is a recent online source (2019) so has currency. The authors, with extensive
experience with the ICC, have the authority to speak on the matter, making the source quite
credible and reliable. The authors make it clear that they are proposing a suggestion, but go
on to argue their case with logic and examples. The article also appears balanced in its
approach to the topic as it presents criticism but also defends the ICC’s purpose.

2.2 Source 2: “By not investigating the U.S. for war crimes, the ICC shows colonialism still
thrives in international law”, Helyeh Doutaghi and Jay Ramasubranyam. The
Conversation. Retrieved April 16, 2019. Online source.

This article is a commentary on the failure of the Prosecutor to bring a case for the ICC against
the United States for its actions in Afghanistan. It is argued that the inability of the ICC to
charge the U.S. illustrates “the pre-existing hierarchy and embedded colonial structures in the
international legal order”. The “hierarchy” refers to the superiority of powerful nations, which
means that there is not a situation of equality before the law. The authors argue that the ICC
concentrates all its activity on prosecuting crimes committed by African leaders and “turns a
blind eye” to crimes committed by the U.S. The difficulty of prosecuting the U.S. who was not
a signatory to the Rome Statute, and would not allow a prosecutor to enter the country to carry
out an investigation, illustrates the fact that there is not a true international order of justice.
While some countries can be compelled to obey the court by procedures such as trade
sanctions or diplomatic pressure, the U.S. is too powerful for such measures to have much
effect.

This article is from a website that requires its authors to be researchers at universities. The
authors are two doctoral candidates in Law and Legal Studies, giving the article some
credibility. While the authors use examples to start off their argument, their broad claims about
“systematic inequality in international legal order” and certain Westerns states “always”
enjoying dominance in the ICC are too broad. Ultimately the article seems unbalanced, even
ranting, when it asserts, without sufficient evidence, that the West makes use of global
institutions such as the ICC to “continuously demonize and persecute the global South”.

2.3 Source 3: “The Accountability of International Prosecutors” by Jenia Iontcheva Turner in

The Law and the Practice of the International Criminal Court. Oxford University Press,
2015, p.382-410. Chapter in a book.

This is an academic analysis of the structure and the functioning of the International Criminal
Court. It casts light on the preceding two articles, since it goes into more detail about the way
that the ICC operates. The article emphasizes that the status of the prosecutors was a key
issue in the establishment of the court. It was agreed from the beginning that the prosecutors
should be independent, meaning that they could decide for themselves which cases would be
prosecuted. It was noted that here that the ICC can only attempt to prosecute a small
proportion out of many acts that could arguably constitute serious violations of international
law. The independence of the prosecutors was necessary since, otherwise, the decision would
be too easily influenced by particular states. The article argues that there should some
oversight or review of prosecutors’ activities, since there is a danger that they will be guided
by their own political opinions or affiliations. The prosecutors are not under the control of an
existing judicial system and public service, as are prosecutors within an individual state. This
shows how difficult it is to maintain the ideal of a universal institution of justice, beyond the
individual state.

The article is written by a Professor of Law at a university, so carries some credibility. The
chapter itself is balanced overall, as it argues for the importance of the ICC having checks that
hold prosecutors accountable, but at the same time it stresses the importance of prosecuting
international crimes. Another strength of the article is that it offers solutions to this dilemma.

3.0 Discussion
The case of the attempt to prosecute U.S. shows how difficult it is to set up an international
system of justice. The right to decide what is a crime and what is not is generally seen as an
essential part of a nation’s sovereignty. If the International Criminal Court issue an arrest
warrant for an individual considered to have committed a crime under its statutes, the country
is obligated to give up the individual. This means that it does not have the right itself to judge
its own citizens. The most powerful nations, in particular, have shown themselves unwilling to
give up this right.
There are many other reasons why it is difficult for a system of international justice to be
effective in practical terms. The individuals who have committed “Crimes against Humanity”
are nearly always powerful individuals in a country – typically, they are the ruler of a country,
who has presided over such crimes during a certain period. If such an individual is still in
power, then he will have the protection of the country’s military, and so it would require a
military invasion to carry out the arrest warrant. Even after he leaves office, such individuals
often have a lot of support in their own country, and so it will be difficult to carry out an
extradition. An example would be Slobodan Milosevic, the former president of Serbia, who
presided over numerous crimes against the Bosnian Muslims population during the Balkan
conflicts in the late 1990s, including the massacres of civilians. It took a long period of time
and much diplomatic and financial pressure to make the Serbian government hand him over
the International Criminal Tribunal for the former Yugoslavia. It is important to note that
Milosevic was ultimately brought before the tribunal, however – even though he ultimately died
in prison before his trial was concluded. The ICC has successfully prosecuted a number of
individuals for war crimes, mostly former African leaders. As the authors of the article in the
Atlantic Council note, present-day conflicts such as those in Yemen and Syria have been
characterized by a lack of regard for civilian lives and human rights.

It is important therefore that states continue to support an institution such as the ICC, to show
that the international community is committed in principle to the principles of basic international
laws.

4.0 References
Doutaghi, H. & Jay Ramasubranyam, J. (2019). By not investigating the U.S. for war crimes,
the International Criminal Court shows colonialism still thrives in international law.
Retrieved August 19, 2019 from https://theconversation.com/by-not-investigating-the-
u-s-for-war-crimes-the-international-criminal-court-shows-colonialism-still-thrives-in-
international-law-115269

Hussein, P. Z. R. A., & Ugarte, B. S., Wenaweser, C. & Intelman, T. (2019). The International
Criminal Court Needs Fixing. Retrieved August 19, 2019 from
https://www.atlanticcouncil.org/blogs/new-atlanticist/the-international-criminal-court-
needs-fixing

Turner, J. I. (2015). The Accountability of International Prosecutors. In C. Stahn (Ed.), The law
and the practice of the international criminal court (pp. 382-410). Oxford: Oxford
University Press.