The Black Sheep Affair Full Movie 11
Ethelyn Mullice
Kenia on reagoinut oikeudenkynteihin poliittisin ja oikeudellisin keinoin. Maa on jarruttanut rikostuomioistuimen tyt, koettanut saada YK:n turvallisuusneuvoston lykkmn juttujen ksittely ja uhannut ICC:t sill, ett afrikkalaismaat vetytyvt tuomioistuimesta joukolla.
Kenia on saanut oikeudenkyntien vastustukselleen alueellista tukea, ja tapaus on vahvistanut vitett, jonka mukaan ICC toimii erityisesti afrikkalaisia maita vastaan. Kenian nkkulmasta valtionjohtajien syyttminen voi vaarantaa alueellisen rauhan ja turvallisuuden, mist syyst ICC:n ei pitisi syytt valtionjohtajia lainkaan. Kenia on saanut kannalleen ymmrryst, mutta turvallisuusneuvosto on kieltytynyt lykkmst oikeudenkyntej.
ICC:t vastaan suunnatulla poliittisella hykkyksell tulee olemaan vaikutuksena tuomioistuimeen. Sen tytyy harkita uudelleen, kuinka se suojelee todistajia, turvaa todisteita ja valitsee ksiteltvt tapaukset. Tuomioistuin voi kytnnss joutua jopa luopumaan periaatteestaan, jonka mukaan virkaa hoitavia valtionjohtajia voidaan syytt.
Ne odotukset, joita ICC:hen on kohdistettu globaalin oikeuden instituutiona, ovat olleet eprealistisia. Nykyinen kansainvlispoliittinen ilmapiiri ei helpota tilannetta. Maailman johtavat vallat ovat edelleen tuomioistuimen ulkopuolella, ja Ukrainan kriisi vaikeuttaa juttujen siirtmist tuomioistuimesta turvallisuusneuvoston ksiteltvksi.
The purpose of this briefing paper is to examine how the cases against the Kenyan leaders have affected the debate on the International Criminal Court as an institution of global justice. Kenya, along with some other African states, has sought to politicize the trials because it alleges that prosecuting sitting heads of state obstructs the running of affairs of state and efforts to secure regional peace. Their attempts to politicize justice have been partially successful, and have opened up many questions about the future of the ICC.
As an institution seeking global justice, the ICC faces many constraints, however. Jurisdiction is essentially consensual, which means that the Court can investigate situations only where the nationals and territory of those states that have ratified the ICC Statute are concerned. Alternatively, the Security Council can refer cases for investigation or the Prosecutor can herself launch investigations. It is, however, far from an institution that all human beings would likely be subject to.
The jurisdictional and institutional links to the Security Council highlight the political character of the pursuit of international justice. To start with, the Security Council, the main international political institution charged with the task of maintaining and restoring international peace and security, has had an immense role in furthering international criminal justice. It firstly created the International Criminal Tribunal for the former Yugoslavia in 1993, and secondly the International Criminal Tribunal for Rwanda in 1994.1 It was also a UN organ, namely the International Law Commission, which sketched the outline for the Statute of the International Criminal Court, later revised and approved by an international conference of plenipotentiaries in 1998, leading to the establishment of a permanent International Criminal Court.
The broader discussion, which shows the intersection of law and politics, relates, however, to the desirability of international criminal justice to begin with. The goal of justice is often contrasted with the political need to achieve peace in conflict areas; the idea of retribution, which is inherent in international criminal justice, is claimed to stand in the way of attempts to reach a political compromise and to start reconciliation processes. Justice is allegedly an impediment to peace, which often involves amnesties for the leaders involved. Ending violence has taken precedence over concerns for justice.
The split in the Security Council concerning the approach towards international criminal justice and the ICC seems to have become entrenched. The United Kingdom and France, which have both ratified the Rome Statute, have consistently been in favour of the ICC and its fight against impunity. This means that those permanent members of the SC that have remained outside the ICC will play a key role in those outcomes of the Security Council that concern the pursuit of international justice. China is basically willing to accept ICC involvement only with the consent of the state that is itself under investigation, while Russia seems open to political concerns, and the United States has chosen not to stand in the way of international criminal justice of others.
Prosecutor Fatou Bensouda of the ICC has firmly denied any anti-African biases by stressing the fact that many cases from Africa have been self-referrals in which the states themselves have referred the investigation to the Court. A further explanation from the ICC for selecting African situations is the vast number of state parties to the ICC on the African continent. Investigating African situations is also explained by the large number of complex African conflicts, and consequently the large number of victims that have remained without justice.
Yet, it is difficult to envisage any substantial changes in the future emphasis of the Court. There are no prospects of major powers such as the United States, China, Russia or India recognizing the jurisdiction of the Court, which would be crucial in developing the ICC into a truly global institution of justice. Furthermore, states with a disputed record themselves, such as Israel, Pakistan and North Korea are hardly inclined to become parties to the Court.
Situations concerning non-African states will possibly be referred to and investigated by the ICC if atrocities take place in a state whose activities are condemned by all major powers. But potential black sheep are hard to find: even North Korea finds political support in China. Against this background, it is highly likely that the vast number of complex conflicts on the African continent as well as the broad ratification of the ICC Statute will ensure that Africa remains the central focus of the ICC. The consequences of ratifying the ICC Statute are becoming increasingly clear for many African states, and it is to be hoped that the Court will not face new threats about mass withdrawals from the African continent. Should such threats materialize, the ICC would be seriously crippled.
The triumphal march of international criminal law and the corresponding international institutions which the international community has witnessed during the past decade is over. The Kenyan cases have highlighted the procedural and political constraints faced by the ICC. The Court and international criminal justice is at a turning point: The ICC has come to a point where it will either rise to the challenge of investigating, prosecuting and punishing state leaders according to its goals, or it will submit to the demands of international politics.
The ICC has proved to be unable to fulfill all the high expectations placed upon it, and in the near term one should expect it to make progress primarily in developing the substance of international criminal law, and in shortening the length of proceedings through increasingly routine-based work.
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