International Criminal Court: Friction Between State Cooperation and Enforcement in Kenyatta and Ruto
by Leah Paisner T
he International Criminal Court (ICC) was envisioned by its founders as a “court of last resort,” intended to prosecute the perpetrators of international crimes of
the highest magnitude: genocide, crimes against humanity, war crimes, and aggression. While this international judicial organ is the product of nearly a century of contentious legal debates, it only re- cently came into being. On July 17, 1998, one hun- dred and twenty United Nations member states voted in favor of adopting the Rome Statute, which called for the creation of a permanent international crimi- nal court. Then, on July 1, 2002, the Rome Statute entered into force, thereby establishing the ICC. As of September 2014, one hundred and twenty-two states - including Kenya - have acceded to the Rome Statute and accept- ed its jurisdiction. Out of those states, 34 are located in Africa, 18 in the Asia-Pacific Region, 18 in Eastern Europe, 25 in West- ern Europe and North America, and 27 in South and Central America.1
However, the Court’s jurisdiction is by far from universal. Several notable states have signed the Rome Statute, but refused to ratify it, including, but not limited to: the United States, Israel, Iran, Kuwait, Thailand, and the Ukraine. Moreover, the Court was designed to complement the work of national courts, rather than supplant them. Thus,
it is only able to exercise its jurisdiction in cases where national courts are “unwilling or unable genuinely to carry out the investigation or pros- ecution” of crimes that are of sufficient gravity to warrant the Court’s involvement.2
State cooperation may be both an obstacle and a solution. The Rome Statute could potentially be amended to include enforcement
Though the ICC is based in the Netherlands, its ju- risdiction extends to all state parties to the Rome Statute (or, in certain circumstances, state non- parties). Article 13 of the Rome Statute sets forth the circum- stances in which the ICC can exercise its jurisdiction:
mechanisms, such as referral to the UN Security Council for sanctions and suspension, or expulsion from the Assembly of Parties, but the effectiveness of these methods depends on cooperation from other member states. Even if the Court uses these tools, their existence may be enough to enforce compliance in the long run.
The Court may exercise its jurisdiction with respect to a crime [. . .] in accordance with the provisions of this Statute if:
(a) A situation in which one or more of such crimes ap- pears to have been commit- ted is referred to the Pros- ecutor by a State Party in accordance with article 14 [referral of a situation by a state party];
(b) A situation in which one or more of such crimes ap-
pears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; or
(c) The Prosecutor has initiated an investi- gation in respect of such a crime in accor- dance with article 15 [prosecutor’s author-
ILSA Quarterly » volume 23 » issue 1 » October 2014 19
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