Ius Gentium

University of Baltimore School of Law's Center for International and Comparative Law Fellows discuss international and comparative legal issues


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Is this the end of the ICC? No.

Paul Gora

Gambia is the smallest country in Africa with a total population 1.2 million and 4,363 square miles, which makes it slightly less than twice the size of state of Delaware. The Republic of The Gambia signed the Rome Statute on December 4, 1998 and ratified it on June 28, 2002, making it the earliest African country to ratify the treaty. Forty-seven African states were present for the drafting of the Rome Statute in July, 1998. Many of these countries were members of a like–minded group that pushed for adoption of the final statute, with the majority of the 47 voting in favor of adoption, which indicates their involvement in the negotiation and set up of the International Criminal Court.  Among those nations, South Africa, Senegal, Lesotho, Malawi, and Tanzania participated heavily in the discussion as early as 1993 when the International Law Commission presented a draft ICC statute to UN GA for consideration.[1]

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In light of the arrest warrant issued for Sudanese president’s Omar Al Bashir by ICC, there have been an allegations from some Arab and African leaders, as well as certain public figures, organizations, and academia criticizing the ICC as being a Western tool, designed to subjugate leaders of African continent and advance an imperialist/neo-colonial agenda. On the face of it, these criticism can be seen as plausible. The reality, however, is that these criticisms are misplaced, biased, increase and support impunity on the continent.

The recent decision by Gambia to withdraw from the ICC will have a consequential impact on the Court’s future in Africa because countries   like Algeria, Angola, Cameroon, Egypt, etc. who have signed, but not ratified the Rome Statute, may decide to never ratify and even revoke their signature. Such a mass withdrawal from the Court hurts, primarily, victims in these African states, as it denies them justice.

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IS THIS THE END OF THE COURT? 

It is not. International criminal justice has always had its ups and downs, but this will not be the end of the ICC as we know it. According to Article 127 of the Rome Statute, parties are free to leave as they want. Of course, the withdrawal of few states may send a wrong message to international community about the ICC, but, in the end, the ICC is there for the victims, not the ones in power who decide to enter or leave.

WILL THERE BE MASS WITHDRAWAL?

Probably not. This move by Gambia and the two others may have opened a gateway for other countries, but it does not necessarily mean that many African countries will leave. For instance, Gabon last Month referred a case to the ICC after deadly unrest occurred in the nation over disputed election results.[2]

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IS AFRICA UNFAIRLY SINGLED OUT?

Of the current 10 full investigations, nine are underway in 8 African nations. The reasons for these investigations are easy to accept – The victims are in Africa.  The alleged crimes occurred in Africa. Theses situation have been referred to the ICC by the countries themselves or these situations have been referred by the United Nations Security Council under a Chapter VII resolution. [3] The spin that is put on these cases – that the ICC is targeting Africa – is false. Other situations in other parts of the world are also under investigation in the preliminary phase, including the Middle East, South America, and Europe.[4]

Time will tell. The arc of the moral universe is, after all, long, but it bends towards justice in the end.

Paul Obang Gora is an LL.M. student in the Law of the United States (LOTUS) program at UB Law. He has an LL.B. from the Ethiopian Civil Service College, Addis Ababa (2000) and a certificate for six-months’ training for judges and prosecutors. He served as an assistant prosecutor in Ethiopia from 2001-2003, but fled to Kenya because of political persecution. He was a community organizer in the refugee camps in Kenya and then served in the new South Sudan Ministry of Justice as legal counsel from 2008-12, prior to emigrating to the U.S. Paul is on the Elective Concentration Track, specializing in International Law, and working as an intern with the International Rescue Committee. 

 

[1] http://www.iccnow.org/?mod=icchistory

 

[2] https://www.icc-cpi.int/Pages/item.aspx?name=160929-otp-stat-gabon

 

[3] https://www.icc-cpi.int/pages/situations.aspx

 

[4] https://www.icc-cpi.int/pages/preliminary-examinations.aspx

 

 

 

 

 

 

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A Minor Loophole in the ICC?

Daniel Huchla

Imagine: In the midst of an armed conflict, a mass of unarmed women and children in a remote village have been unceremoniously executed by armed forces. Under the laws of armed conflict, such acts would certainly create liability for war crimes.[i] However, it is surprising that if the soldiers or their commander that committed this crime were under the age of eighteen they would not be subject to jurisdiction at the International Criminal Court (“ICC”).[ii]

The International Criminal Court (“ICC”) is an international judicial body, designed as an alternative to International Criminal Tribunals which are restricted to specific jurisdictions and conflicts.[iii] Jurisdiction of the ICC is dependent upon the consent of sovereign nations through signature and ratification of The Rome Statute.[iv] Designed to address issues of crimes against humanity and war crimes, the ICC incorporates elements from prior treaties including The Hague and Geneva Conventions. One of the Rome Statute’s contributions to the law of war has been establishing that the usage of child soldiers as a war crime.[v] However, the rule does create a somewhat anomalous situation when considered in the totality of the statute.

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Map depicting ratification of the Rome Statute of the International Criminal Court[vi]

            Under the Rome Statue, the act of “conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to actively participate in hostilities” qualify as a “serious violation[] of the laws [of] armed conflict.”[vii] The age of fifteen is drawn from the Convention on the Rights of the Child which similarly provides “States Parties shall take all feasible measure to ensure that persons who have not attained the age of fifteen years do not take a direct part in hostilities.”[viii] The anomaly created by this situation is that under the Rome Statute, the ICC may not exercise jurisdiction upon individuals that were under the age of eighteen at the time of commission of crimes under the statute.[ix] This allows for as much as a three-year window in which potential combatants will not be accountable for their actions before the ICC.

The Convention on the Rights of the Child, through its effects upon domestic law, does slightly narrow the gap by obligating signatories to prioritize older candidates recruiting soldiers that are between the ages of fifteen and eighteen.[x] This may serve to shorten the window in which soldiers might be unaccountable for their actions. Alternatively, the Optional Protocol to the Convention on the Rights of the Child, requiring specific safeguards prior to the recruitment of soldiers under the age of eighteen.[xi] Additionally, the protocol attempts to raise the age of recruitment to 18 for “armed groups that are distinct from the armed forces of a State . . . .”[xii] However, the Optional Protocol has not been as widely ratified as the Convention on the Rights of the Child.

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Image advocating for the ratification of the Optional Protocol to the Convention on the Rights of the Child.[xiii]

There are extreme situations that might warrant the use of combatants within this limited age range. States as sovereign entities have an interest and right to ensure the continued existence of its peoples. Some variables to be considered are the duration of the conflict, the extent of casualties, the overall population of the nation, and the average life expectancy. As these variables shift, the interest of defense may render the recruitment of soldiers under the age of eighteen necessary for some nations. In times of crisis it is perhaps understandable that every “able-bodied [individual]” be called for the defense of the nation.[xiv]

However, the gap in the Rome Statute’s jurisdiction still remains in which a combatant under the age of eighteen might commit violations of the law of armed conflict. The International Criminal Court balances this situation by allowing liability to be asserted against other individuals, specifically commanding officers.[xv] The Rome Statute provides that a commanding officer exercising “effective command and control” 1) “knew or . . . should have known that the forces were committing . . . crimes; and 2) . . . failed to . . . prevent . . . or to submit the matter . . . for investigation and prosecution.”[xvi] Although the ICC lacks jurisdiction to address crimes committed by individuals between the ages of fifteen and eighteen, domestic governments are capable of addressing the crimes. Through the establishment of a command responsibility standard that requires a commanding officer to submit the matter for investigation and prosecution, the ICC ensures that the issue will be handled domestically.

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A child soldier recruited by Thomas Lubanga’s Force patriotique pour la libération du Congo. © Reuters

The Rome Statute, through command responsibility effectively requires domestic national governments to address all crimes committed by soldiers and especially those committed by combatants under the age of eighteen. Ironically, nations that make use of combatants in this age range might hold them to a higher level of liability than the ICC might themselves be comfortable. Or worse yet, they might hold them to a significantly lower level of liability. In either event, the ICC would be powerless to challenge a domestic ruling under the doctrine of ne bis in idem[xvii], because any domestic trial of a minor would not be designed to shield them from criminal responsibility before the ICC. In this situation, if a commanding officer complied with the requirements sufficiently to avoid personal liability, victims could be effectively deprived of justice. Perhaps an effort should be made to close this loophole in which minors are able to avoid criminal liability?

Daniel Huchla is a third year law student at the University of Baltimore and a graduate of Miami University with a Bachelor of Music. During his undergraduate studies, he performed in an International Opera Festival located in Brazil. He also serves as Associate Managing Editor for the University of Baltimore Law Review. Areas of interest include Administrative Law, International Humanitarian Law, International Criminal Law, and National Security Law. He is currently a Law Clerk with the Law Offices of McCabe, Weisberg & Conway.

[i] Rome Statute of the International Criminal Court, Art. 8 [hereinafter “Rome”], https://www.icc-cpi.int/NR/rdonlyres/EA9AEFF7-5752-4F84-BE94-0A655EB30E16/0/Rome_Statute_English.pdf.

[ii] Rome, Art. 26.

[iii] Compare Rome; with Statute of the International Tribunal for Rwanda, http://www.icls.de/dokumente/ictr_statute.pdf.

[iv] Rome Art. 4(2).

[v] Rome Art. 8(2)(b)(xxvi).

[vi] http://www.iccnow.org/?mod=ratimp.

[vii] Id.

[viii] Convention on the Rights of the Child, Art. 38(2), http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx.

[ix] Rome Art. 26.

[x] Convention on the Rights of the Child, Art. 38(3).

[xi] Optional Protocol to the Convention on the Rights of the Child, Art. 3(3) [hereinafter “Optional Protocol”], http://www.ohchr.org/EN/ProfessionalInterest/Pages/OPACCRC.aspx.

[xii] Optional Protocol, Art. 4.

[xiii] https://childrenandarmedconflict.un.org/mandate/opac/.

[xiv] See e.g. 10 U.S.C. § 311 (2016).

[xv] Rome Art. 28.

[xvi] Id.

[xvii] Rome Art. 20.