1. Op-Ed
What is non-selective Court like?
“There is no single case at the ICC that does not deserve to be there. But there are
many cases that belong there, that aren’t there.”
Since its creation in 2002 the International Criminal Court (ICC or the Court
thereafter) has opened 8 different cases and is currently conducting 9
preliminary examinations. The 8 countries where current cases are open are all
situated on the African continent. As a result, the Court is often categorized by
many as being a selective court, a court purely created to judge crimes
committed in African states. The primary critiques of the ICC are Africans
themselves who feel personally targeted. Since the arrest warrants were issued
for Omar al-Bashir, the Sudanese President, and Uhuru Kenyatta, the President of
Kenya, the critiques emanating from the continent have grown drastically, many
calling for their country’s ratification of the Rome Statute to be reversed. If the
ICC wants to prevent this from occurring, it needs to become a non-selective
court. A number of steps need to be taken by both the international community
and the Court itself in order for this goal to be achieved.
There are presently 123 states that have signed and ratified the Rome Statute,
thus giving jurisdiction to the Court to try crimes against humanity, war crimes
and genocide committed within the borders of those countries or by nationals of
those states. 34 African states have ratified the Statute, the most of any
continent. It is important to note here that, apart from the major European
powers, none of the international major powers, such as the United States, China,
Russia, Israel or India have ratified the Rome Statute. The first essential step that
therefore needs to be taken to ensure that the Court becomes a non-selective one
is the ratification of the Rome Statute by all states.
There are 3 ways a case can be brought before the ICC. Firstly, the Prosecutor
can choose to open a case. This method was used to bring forward the crimes
committed in the aftermath of the 2007 elections in Kenya. Secondly, the state
where the crimes were committed can choose to refer itself. The Central African
Republic, Mali, Uganda and the Democratic Republic of Congo have all referred
themselves to the ICC. Finally, the United Nations Security Council can choose to
refer a case to the Office of the Prosecutor, as was the case with Libya and Sudan.
The Security Council can refer a case to the Court whether the state it is referring
has ratified the Rome Statute or not. The Council therefore has immense power.
However, in order for the case to be admitted to the ICC, all 5 permanent
members of the Security Council, meaning the United States, France, the United
Kingdom, Russia and China must vote in favor of the referral. It is important to
note here that only France and the United Kingdom have ratified the Rome
Statute. The political nature of the Court and the Security Council therefore
appears here. In May 2014, the Security Council tried to refer the situation in
Syria to the Court. However, both China and Russia vetoed the motion. North
Korea, Pakistan, and Sri Lanka are just some examples of countries where crimes
are committed on a regular occurrence. These countries have not ratified the
Rome Statute – a referral from the Security Council is therefore the only option
for the crimes to be brought before the ICC. A veto by one or more countries is
more than likely in these situations. The role of the Security Council therefore

2. needs to be reconsidered. Although the idea that the Council can refer any case
to the Court, including non-ratifying countries, is essential for the Court’s
adequate functioning, the veto power of the permanent 5 in effect limits the
Council’s role. It is also important to note here that the United Nations General
Assembly, where no state has a veto power, has no power to grant the Court
jurisdiction.
If the ICC were to become a non-selective court, the institution would require
more financial and logistical support. Currently, the financing of the Court mainly
comes from States Parties. The contribution of the States Parties is calculated
depending on the income of the states. The recent global financial crisis has had
a negative impact on most of the countries which are State Parties to the Rome
Statute. Therefore, often the financial contributions of many states have either
been incomplete or delayed. If more countries ratified the Rome Statute, the
financial capabilities of the Court would increase. As a result, the Court would
have the capacity to open more cases.
The key notion around which the ICC revolves is the principle of
complementarity. This entails that the Court can only open a case if the country
where crimes were or are being committed, is ‘unwilling or unable’ to open its
own investigation. Consequently, all the cases which are currently ongoing have
been opened because the African states have been ‘unwilling or unable’ to open
their own investigations into war crimes, crimes against humanity or genocide
committed within their country’s national borders. It is now these States which
are the first to criticize the ICC, its standards of justice and perceived lack of bias.
Consequently, if these countries do not wish to be targeted by the Court, they
should undertake their own credible investigations. This entails that the legal
framework and institutions within Africa be strengthened to prevent cases being
brought before the ICC. Steps are being taken on a national level to reinforce
these institutions. For instance, the Ugandan government created Uganda’s War
Crimes Division (WCD), now known as the International Crimes Division (ICD) of
the High Court. The Kenyan High Court has also created an International Crimes
Division, which is yet to start operating. The African Union has also established a
number of legal institutions, such as the Commission of Inquiry in South Sudan.
In conclusion, the International Criminal Court, as well as the international
community, need to take a number of steps to ensure that the Court is no longer
criticized for being selective.