ISSN (Print) - 0012-9976 | ISSN (Online) - 2349-8846

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The International Criminal Court and Its 'Small Fry Justice'

Created to punish perpetrators of the world's serious crimes, the International Criminal Court is yet to live up to its promise. The ICC's focus on situations in Africa and its unwillingness to prosecute powerful violators of human rights and humanitarian law suggests that other forces are infl uencing its functioning.

Established in 2002 with the purpose of punishing individuals who commit serious crimes that cannot or will not be addressed at a national level, the International Criminal Court (ICC) can assert jurisdiction over crimes against humanity, genocide, war crimes, and, as of 2017, crimes of aggression.1 Cases come before the ICC in three ways – (1) a referral from a state that is a signatory to the ICC statute; (2) at the initiative of the ICC’s prosecutor; (3) or from the United Nations Security Council (UNSC). In the first two, the state in which the crime was perpetrated or the accused’s state of nationality must be a party to the ICC statute. A state which is not a party to the ICC statute may consent to the court hearing the case on an ad hoc basis. If the UNSC refers a case to the ICC, the court has jurisdiction regardless of the state involved being a party to the ICC statute.2

Eighteen cases from eight states have been brought before the ICC. Of these, two were initiated by the prosecutor, four via state party referrals, and two from UNSC referrals. All eight states in which prosecutions are taking place are African. This has led to protest from African states, and the African Union (AU) holding that the ICC is targeting Africans (Africa Legal Aid 2011). It is alleged that the ICC is a tool for western powers to interfere. They point to the indictment of African leaders unpopular in the west, such as Muammar Gaddafi of Libya, President Omar al-Bashir of Sudan, and President Uhuru Kenyatta of Kenya, as evidence. It is claimed that there are greater atrocities being committed by major powers and their allies but these enjoy immunity from criminal proceedings.

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