By Isabella Mahan
Senior Honors Thesis
Department of Political Science
The University of North Carolina at Chapel Hill
April 3, 2020
Approved:
Dr. Robert Jenkins, Thesis Advisor
Dr. Joseph Ross, Reader
unwavering support, encouragement, and advice. Additional thanks to my committee members,
Dr. Joseph Ross and Dr. Matthew Weidenfeld, and to the incredible department of political
science as a whole. Further, I want to thank Dr. Jonathan Hartlyn for his support from the
beginning of my thesis, and the other political science honors students of the class of 2020 for the
joy brought to the pursuit of research. To complete this thesis was an honor and privilege not
Acronyms
APIC— Agreement on the Privileges and Immunities of the International Criminal Court
ASP— Assembly of State Parties
ASPA— American Servicemembers’ Protection Act
CAR— Central African Republic
CJAD— The Cooperation and Judicial Assistance Database
CSO— Civil Society Organization
DRC— the Democratic Republic of the Congo
ECCC— Extraordinary Chambers in the Courts of Cambodia
HRW— Human Rights Watch
ICC— International Criminal Court
ICTR— International Criminal Tribunal for Rwanda
ICTY— International Criminal Tribunal for the former Yugoslavia
LRA— Lord’s Resistance Army
NGO— Non-governmental Organization
OTP— Office of the Prosecutor
RSF— Rapid Support Forces
TFV— Trust Fund for Victims
UNGA— United Nations General Assembly
I. Introduction
“We were told to do whatever we wanted to these women, that the women belonged to us. I saw other soldiers rape eleven women. Personally, I did attempt to rape one of the women, and she hit me. And I lost my temper, and I shot her… she is dead. I am deeply sorry. But you must understand that this was not my endeavor. I was under the command of men with no mercy."1
At seventeen the Sudanese government's Rapid Support Forces (RSF) recruited
Ibrahim (not his real name). His story mirrors that of thousands of other child soldiers,
where these "men with no mercy" commanded young boys and men to commit atrocities
against their people. Crimes including the forced participation of child soldiers led to the
International Criminal Court’s 2005 opening of an investigation to address the alleged
crimes against humanity, genocide, and war crimes committed in Darfur.2 Following the
Office of the Prosecutor (OTP) investigation, five cases were opened, one of which was
against the President since 1993, Omar Hassan Ahmad Al Bashir. When creating the
convention which established the ICC, the United Nations (UN) stated intentions to
achieve peace for all, to end impunity, to end conflicts, and deter future war criminals.3
However, despite these goals and their applicability following the horrific violence seen
throughout the Darfur region of Sudan, as of 2019, not a single case has moved into trial,
and three defendants remain at large, including the former president. The situation in
Sudan remains prominent for both opponents and supporters of the Court. Opponents
claim the failed apprehension of defendants showcases the stagnation, and therefore, the
1 Amy Braunschweiger, “Witness: A Child Soldier’s Darfur Confession – ‘I Shot Her. She Is Dead.’” Human Rights Watch, September 9, 2015. https://www.hrw.org/news/2015/09/09/witness-child-soldiers-darfur-confession-i-shot-her-she-dead.
2 International Criminal Court, “Case Information Sheet: Al Bashir,” April 2018. https://www.icc-cpi.int/CaseInformationSheets/AlBashirEng.pdf.
ineffectiveness of the Court. Conversely, supporters use Al Bashir to display the
importance of holding heads of state accountable for the atrocities committed within their
state.4 This thesis serves to explain why cases at the ICC fail to move to trial stages by
examining what causes arrest warrants to go unfulfilled and other factors that impact trial
progression.
II. Why Cases Fail to Progress to Trial Stages
To date, nine investigations by the ICC have led to a total of 27 cases; of
these, only ten have progressed into trial stages. Through this research project, I
will identify the key factors that are blocking cases from moving into trial. In
order for the Court’s intentions to uphold human rights standards, and succeed in
bringing guilty individuals to justice legally, there must be an identification of the
flaws of the current procedure. Through surrounding research of the challenges
facing the ICC and international trials, I investigate the stagnation in pre-trial
stages. Specifically posing the question: How do the influence of external states,
the target state, victims, and witnesses prevent International Criminal Court cases
from moving to the trial stage?
This thesis explores the core factors of influence on International Criminal
Court case movement into trial based on quantitative analysis. Ultimately, referral
avenue of situations predicts case outcome as it demonstrates target state
cooperation. Factors of target state commitment to the ICC and the relationship of
defendants incentivize or discourage state’s cooperation with the Court. These
measures illustrate characteristics of referral avenues, providing a narrative of
traits which lead to either stagnation in pre-trial or movement. Target state
influence on trial displays the ways the independent institution that is the Court
still depends on outside cooperation in order to fulfil the intentions set forth by its
creators.
III. Background
A. Intentions of the Court
From the atrocities committed by the Nazi regime to the Rwandan Genocide as
well as the ethnic conflict and cleansing in the former Yugoslavia, the twentieth century
bore witness to some of the greatest atrocities against humankind to date. However, in
reaction to these events, the global community saw the emergence of steps towards
rectification and justice. One such action was the Rome Treaty, or Statute, of 1998, which
established the International Criminal Court (ICC). This Court is to serve as a
replacement for the ad hoc tribunals, which have been one-time international courts to
serve justice on the global stage.5 Instead, the Court has sought to serve as an institution
existing for justice free of political influence and the temporality of tribunals. The Court’s
creation aimed to aid in conflict prevention, strengthen global order, and contribute "to
the humanization of our civilization."6
In their own right, the goals of the ICC aim to represent action on the normative
objectives of the international community's pursuit of the preservation of humanity.
Nevertheless, there is a much deeper significance to the Rome Statute. As M. Cherif
Bassiouni promulgated at his 1998 speech commencing the establishment of the ICC,
5 In the early 1990s, the International Criminal Tribunals for the former Yugoslavia and for Rwanda were established by the UN. See Claude E. Welch, and Ashley F. Watkins, "Extending Enforcement: The Coalition for the International Criminal Court." Human Rights Quarterly 33, no. 4 (2011): 953. www.jstor.org/stable/41345420.
“Today’s opening of the Convention for signature marks both the end of a historical process that started after World War I as well as the beginning of a new phase in the history of international criminal justice. The establishment of the ICC symbolizes and embodies certain fundamental values and expectations shared by all peoples of the world and is, therefore, a triumph for all peoples of the world.”7
To the founders of the ICC, there is an undeniable importance of upholding
human rights standards, and those who sought the establishment believe the Court
serves precisely this purpose. The ICC seeks to pursue greater degrees of justice
for the atrocities of the past as well as guarantee stronger accountability and
prevention in the future.
B. Motivations for States
After nineteen weeks of negotiations establishing a statute to create the ICC,
there still remained over 1,400 indications of disagreement in the draft presented.8
The primary concerns of states centered on two primary issues: the scope of the
Court’s jurisdiction and how the Court would exercise its jurisdiction. Of the UN
Security Council permanent members, China, Russia, and the US were the most
vocal opponents to aspects of the Court; the concern over ICC jurisdiction over
non-international conflicts became a major point of contention for these members.
Further, these three members of the UNSC vocalized opposition to the proposed
jurisdiction of crimes of aggressive war. 9
The Rome Convention attempted to quell the concerns with the preparatory
committee’s draft and finalized the Statute. Despite measures to attempt to
7 Ceremony for the Opening for Signature of the Convention of the Establishment of an International Criminal Court, Rome, “Il Campidoligo,” 18 July 1998
8 Rachel Kerr and Erin Mobekk, Peace and Justice: Seeking Accountability After War. (Cambridge, UK: Polity Press, 2007): 59.
counteract concerns such as adding UNSC referrals of potential crimes, only
France and the United Kingdom ratified. For other states’ concerns about
jurisdiction the principle of complementarity was established as a core tenet of the
Rome Statute. Complementarity assures that the ICC will serve as a court of last
resort, taking control of prosecution only when states are unable to do so
independently. Even with compromise and negotiation at the Convention, many
states maintain a contentious relationship with the Court. Nonetheless, the
Convention gained enough state ratification and thus the Court was created.
C. The Structure of the Court10
On July 17, 1998, after 160 states engaged in negotiations at the Rome
Convention, 120 countries voted in favor of the Treaty containing the Statute to
create the International Criminal Court.11 States then independently acted to ratify
the Statute.12 Those ratifying became State Parties to the ICC. On April 11, 2002,
the required sixtieth state ratified, allowing the entry into force of the Statute. On
July 1, 2002, the Court officially opened with jurisdiction from that date forward.
Beyond negotiating the terms of the crimes and jurisdiction of the ICC, the
Rome Statute established the structures which would operate the Court. These
include the legislative structures the Assembly of State Parties (ASP), the Trust
Fund for Victims, and four Organs—the presidency, the chambers, the Office of
the Prosecutor (OTP), and the registry. This thesis examines the operations of the
10 The section “The Structure of the Court” draws heavily on the following source unless otherwise stated. See International Criminal Court, “Understanding the International Criminal Court,” n.d. https://www.icc-cpi.int/iccdocs/PIDS/publications/UICCEng.pdf
11 Michael P. Scharf, “Results of the Rome Conference for an International Criminal Court,” American Society of International Law 3 no. 10 (1998)
Court to see what impedes cases from moving from the pre-trial to trial chambers.
In order to explore this operation, the surrounding structures of the Court and how
they interact must further be understood.
Separate from the structures necessary for trials, the ICC possesses a body
for management, oversight, and legislation. Composed of representatives from
each State Party is the Assembly of State Parties (ASP).13 Each State Party's Head
of State or Minister of Foreign Affairs chooses their representative. The
appointment requires approval by the ICC Credential Committee. The
administrative structure of the ASP centers on a Bureau, which consists of a
President, two Vice Presidents, and 18 members elected for a three-year term by
the Assembly. When constructing the Bureau, the Assembly takes into
consideration principles of equitable geographic distribution and representation of
the world's principle legal systems. The ASP meets at least once a year to make
decisions for the Court, such as amending laws and procedures, establishing the
budget, and electing the judges, the Prosecutor, and the Deputy Prosecutor(s).
Further, the ASP is responsible for the review of the Court's activities, including
investigations and cases. Such decisions are based on one vote per State Party.
The Trust Fund for Victims (TFV) is a separate institution from the Court. It was
created by the ASP in 2004, in accordance with the Rome Statute.14 To achieve the
13 International Criminal Court. “Assembly of State Parties,” n.d. https://asp.icc-cpi.int/en_menus/asp/assembly/Pages/assembly.aspx.
mission of supporting and implementing programs to address harms of atrocity crimes.
The TFV’s mandate is two-fold:
(1) “To implement Court-ordered reparations and
(2) To provide physical, psychological, and material support to victims and their
families.”15
The stated goals of the TFV are to contribute to realizing sustainable, lasting peace and
promote restorative justice through assisting victims in returning to a dignified and
contributory life in their communities.16
Four organs, each with a specific role and mandate, make up the ICC.
i. Presidency
The first organ possesses administrative responsibility, which falls on
three-judge who make up the Presidency (the President and two Vice-Presidents).
These three judges are elected by an absolute majority of the Court’s eighteen
judges. The Presidency's three main areas of responsibility are to serve as a
representative of the Court in the global community, help with organization and
work of the judges, and perform administrative duties. The role of the Presidency
is important to case progression as case assignment to the Chambers is at their
discretion. Further, within its role as a representative of the Court, it manages
relationships with states and navigating cooperation agreements.
ii. The Chambers
The second organ of the ICC is the Chambers, consisting of eighteen
judges, including members of the Presidency. Judges are elected by the ASP,
which asserts that they are selected due to standards of high morality and
impartiality within the legal community. Further, the Court presents its judges as
individuals with extensive experience in a broad spectrum of law, including
criminal, international humanitarian and human rights law, and specific issues
such as violence against women and children. The ASP attempts to consider the
representation of all genders, equitable geographical representation, and principle
legal systems when conducting elections to ensure fairness and equality.17 As of
2019, five continents are represented, and six of the eighteen judges are women.
The judges are assigned to the Court’s three judicial divisions: the
Pre-Trial Division (composed of seven judges), the Pre-Trial Division (composed of six
judges), and the Appeals Division (composed of five judges). These divisions are
separated into individual chambers specific to cases or situations at varying stages
of the judicial process. Outlined below are the components present in the
chambers in accordance with the various trial stages.
a. The Pre-Trial Chamber
The Pre-Trial Chambers can be composed of one or three judges, where
they address issues that arise before the trial phase begins. The judges supervise
the OTP's investigative and prosecutorial activities to ensure the rights of
suspects, victims, and witnesses during the investigation and to guarantee the
legal soundness of the proceedings. Following an investigation, the Pre-Trial
Chamber decides whether or not to issue arrest warrants or summons to appear
and confirm charges against persons suspected of a crime.18 In this Chamber, the
judges may also determine the admissibility of situations, cases, and victim
participation.19
The individual suspected of a crime must be present at the Court in order
for preliminary hearings to proceed. The confirmation hearing requires an official
"initial appearance" where judges confirm the suspect's identity and ensure the
suspect understands the charges proposed against them. At this hearing, the
prosecution, defense, and legal representative of the victims present evidence,
after which the judges must decide within sixty days whether or not there is
enough evidence to proceed to trial. If the suspect is not present, legal
submissions are allowed, but the official hearing cannot begin. Further, if the
judges determine there is not sufficient evidence to confirm the charges, the
suspect is released, and the case closed.
b. The Trial Chamber
Following the confirmation of charges against the alleged perpetrator
(referred to as the defendant), the case moves to the Trial Chamber, which is
composed of three judges. This Chamber serves to ensure fair and expeditious
trials while maintaining the defendants' rights and the safety and security of
victims and witnesses. In the Trial Chamber, rulings of guilt or acquittal are
18 If the Pre-Trial Chamber judges determine there are reasonable grounds to believe that the individual accused will not voluntarily appear before the Court, will endanger the proceedings or investigation, or may continue committing crimes if not arrested, an arrest warrant will be issued. If the judges believe the person will cooperate and voluntarily appear at the Court, the judges may issue a summons to appear. See
issued and defendants sentenced, if found guilty beyond a reasonable doubt. At
the Court, the maximum sentence may not exceed thirty years of life, and
sentences may never include the death penalty. Those found guilty may also face
financial penalties and orders to make reparations for the harm against victims in
the form of compensation, restitution, or rehabilitation.
c. The Appeals Chamber
The final Chamber is Appeals, which consists of the President of the Court and four
other judges. In this Chamber, both the Prosecutor and Defense may appeal decisions of
the Pre-Trial and Trial Chambers. Further, the convicted as well as victims of guilty
convictions may appeal a reparations order given in sentencing or petition for one to be
instituted. Based on the ruling of the five judges, decisions may be upheld, reversed, or
amended. Decisions may include judgments to convict or acquit, sentences, or orders for
a new trial before a new Trial Chamber.
iii. The Office of the Prosecutor
The third organ of the Court is the Office of the Prosecutor (OTP). The OTP
analyzes events and alleged crimes referred to the court—situations-- to determine
whether there have been crimes warranting investigation and brings alleged perpetrators
before the Court. The tasks of the OTP are delegated between three divisions. First, the
Jurisdiction, Complementarity, and Cooperation Division aims to assess the admissibility
of alleged crimes to the Court based on jurisdiction and cooperation. Second, the
and questioning victims, witnesses, and suspects. By investigating incriminating and
exonerating circumstances to an equal degree, the OTP attempts to establish the most
accurate record of events and truth. Finally, the Prosecution Division is responsible for
arguing cases before the Court's Chambers.
iv. The Registry20
The fourth organ, the Registry, provides administrative and operational
support to the Chambers and OTP. The organ seeks to ensure that the Court is
appropriately serviced and develops sufficient mechanisms for assisting victims,
witnesses, and the defense to safeguard the rights under the Rome Statute and the
Rules of Procedure and Evidence.21 The registry additionally serves as the Court’s
official channel of communication, providing ICC’s public information and
outreach operations.
Access to participation and protection for witnesses and victims falls under
the administration of the Registry. Witnesses can be called by the OTP, the
Defense, the Legal Representative of the Victims, or the Judges themselves. Four
types of witnesses can testify before the Court. First, fact witnesses testify about
what happened. When they have personally suffered harm, they are crime-based
witnesses, testifying on what happened to them. Second, insider witnesses hold a
direct connection with the defendant. Third, expert witnesses testify within the
field of their expertise. Fourth, overview witnesses assist in establishing the
20 The section “The Registry” draws heavily on the following source unless otherwise noted. See International Criminal Court, “Witnesses,” n.d. https://www.icc-cpi.int/about/witnesses.
21 The Rules of Procedure and Evidence are an instrument to apply the Rome Statute of the ICC. See International Criminal Court. “Rules of Procedure and Evidence,” 2002.
contextual facts of the conflict and crimes and can include, for example,
professors or NGO representatives.
The Registry offers multiple avenues of practical support to witnesses, such as
obtaining visas, assistance in travel and room and board, and establishing video link
services for those staying in their place of residence. Witnesses may also receive
allowances to compensate any financial burdens related to testifying and practical support
through familiarization with the Court. During this process, the registry sees any practical
measures needed to ensure the witness can testify in a secure manner while taking into
consideration their privacy, dignity, and well-being.
The Court bases its protection system for witnesses on practices aimed to conceal
the interaction of the witness and the Court to shield the witness, victims, and others put
at risk on account of the testimony given. In all protective measures taken, the Court aims
to choose that which is least intrusive on the witness’s wellbeing. Where witnesses
reside, measures may be taken that are proportional to the risk posed to the victim. Such
measures may include local protection measures, assisted moves, or security
arrangements aimed to address an identified threat as a last resort witness relocation is
used, as this puts an immense burden on witnesses and their families.
In the courtroom, the Trial Chamber may order protective measures during
testimony to protect the identity and whereabouts of the witness. Such measures may
include distortion of face or voice or the use of a pseudonym. In special cases, judges
may conduct portions of hearings in private or closed hearings.
Within the registry are staff members with expertise in trauma, including the trauma
Chambers on taking measures to prevent further psychological harm resulting from
appearance before the Court. Those of particular vulnerability to psychological harm,
such as children, sexual violence survivors, or elderly persons, may be provided further
special measures to facilitate their wellbeing. These measures may include having a
support person by their side during testimony, having a psychologist in Court, adapting
the courtroom setup to prevent viewing the defendant, or modifying questioning to
prevent provoking excessive trauma.
IV. Case Proceedings
This thesis implements cases as my level of analysis. Through the ICC, information is
available on all twenty-seven cases which have been brought by the OTP. By analyzing
the population of ICC productivity on the case level I will present a close study of the
intricacies of factor interaction and progression of these cases to trial. The surrounding
proceedings to cases, include the crimes, the principle of complementarity, how alleged
crimes are referred to the case, situations, and details of cases themselves. In order to
understand how cases progress, or fail to progress, the structures of cases are necessary to
understand.
A. Crimes
The Court prosecutes crimes commonly referred to as a whole under the title of "atrocity
crimes.”22 The Rome Statute defines atrocity crimes under four prosecutable crimes:
genocide, crimes against humanity, war crimes, and crimes of aggression.23
22 ABA Center for Human Rights. “Home.” How the ICC Works. American Bar Association. Accessed December 5, 2019. https://how-the-icc-work.aba-icc.org/
The first crime tried at the court is genocide, the definition of which was taken
directly from the instrument of the UN Genocide Convention of 1948.24 Genocide is
defined as any of the following acts committed with the intent to destroy, in whole or in
part, a national, ethnical, racial or religious group, as such:
(1) Killing members of the group;
(2) Causing serious bodily or mental harm to members of the group;
(3) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(4) Imposing measures intended to prevent births within the group; Forcibly transferring children of the group to another group.25
The second set of prosecutable crimes by the ICC are crimes against humanity.
Defined by the Rome Statute, these are crimes "committed as part of a widespread or
systematic attack directed against any civilian population, with knowledge of the
attack."26 These crimes may occur during times of peace or war and apply to numerous
actions, including murder, extermination, torture, and rape.
Dissimilar from the crimes mentioned above, which may take place in times of peace
as well as war, the two other crimes prosecutable by the ICC are relevant to times of
armed conflict between or within states. The first of these, war crimes, are criminal acts
related to the armed conflict.27 The Rome Statute defines such crimes as
(1) Grave breaches of the Geneva Conventions of August 12, 1949
(2) Other serious violations of the laws and customs applicable in international armed conflict within the established framework of international law
24 On 9 December 1948, the Genocide Convention signified the first human rights treaty adopted by the UN General Assembly. The Convention signified the international community's commitment to preventing atrocities similar to those of World War II and the Holocaust. See United Nations Office on Genocide Prevention and the Responsibility to Protect. “Legal Framework” United Nations, n.d. https://www.un.org/ en/genocideprevention/genocide-convention.shtml.
(3) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law.28
Within the scope defined above, specific crimes may range from the illegal
seizure of property to attacking civilian objects to using prohibited gas.29 Further,
the Statute specifically marked additional concern during civil conflicts for
persons uninvolved "in the hostilities, including members of armed forces who
have laid down their arms and those placed hors de combat.”30If a crime is
committed during the war, but unrelated to the conflict, it must be prosecutable
under the other three crimes tried by the ICC to be relevant to the situation.
The charge crime of aggression differs from the other three crimes tried at the
Court due to its adoption in 2010. During the Review Conference of the Rome Statute
between May 31 and June 11, 2010, the ASP added this crime to the scope of the Court.
After a decision and ratification by a majority of State Parties, the Court exercises
jurisdiction over the crime after January 1, 2017. Further, the Court must prove the
necessary political or military control of the accused to direct the action of the state in
perpetrating the act of aggression.
The crime of aggression is defined in the revised Rome Statute as
(1) the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity,
28 The Geneva Conventions are four treaties to define the rights of war prisoners, establish protections for the wounded, and protect civilians in war-zones. The treaty of 1949 defines the rights and protections for non-combatants. See International Committee of the Red Cross. “The Geneva Conventions and Their Additional Protocols,” January 1, 2014. https://www.icrc.org/en/document/geneva-conventions-1949-additional-protocols.
29 ABA Center for Human Rights. “Home.”
and scale, constitutes a manifest violation of the Charter of the United Nations.
(2) The use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.31
Of such situations that the Court has decided to investigate, the prosecution
may only fall on individuals, not on groups or states. These individuals must be
above the age of eighteen when the crimes were committed. The Court focuses on
those who, based on evidence, bear the most significant responsibility for the
crimes. Although the Court does not take political action, it does not exempt
governmental officials from prosecution.32
B. Complementarity
The Court’s jurisdiction centers on the principle of complementarity, meaning
the ICC only “complements” other courts that have jurisdiction over the alleged
crimes.33 The implementation of the complementarity principle differentiated the
ICC from other known institutions, including the ad hoc tribunals of the
International Criminal Tribunal for the former Yugoslavia (ICTY) and
International Criminal Tribunal for Rwanda (ICTR), in recognizing that states
have first responsibility and right to prosecute international crimes.34 The OTP
must first determine if another court is both willing and able to investigate and
prosecute the case, or has already done so. The ICC thus becomes a “court of last
31Rome Statute, Part 2 Art. 8 bis; inserted by resolution RC/Res.6 of 11 June 2010 32 ICC. “Understanding.”
33 ABA- ICC Project, “Admissibility Assessment: Complementarity.” n.d. https://www.aba-icc.org/how-the-court-works/preliminary-examination/complementarity/.
resort.”35 If another court is or has investigated or prosecuted the alleged crimes,
the ICC will never have jurisdiction to move forward with the case.
Complementarity is based both on considerations of ability to produce results
and respect for the primary jurisdiction of states, as states traditionally possess the
best access to evidence, witnesses, and the resources necessary to carry out
proceedings.36
C. Referrals
When atrocity crimes have been committed, the Court requires a referral of the events
containing the crimes, known as a situation, in order to investigate and potentially bring
the individuals found responsible to trial. Referral avenues are a unique structure of the
Court as they vary dependent on a series of factors. A series of influences are evident via
referral avenue, including cooperation of states and UNSC support. For these reasons
referral avenue is relevant to assess in conjunction with other factors in this thesis.
There are three avenues by which situations are referred to the Court to be
investigated. First, are Proprio motu referrals. The Court uses the Latin phrase meaning
an “official act taken without a formal request from another party.”37 This referral method
follows two possible routes. The ICC Prosecutor may authorize preliminary situation
investigations through the jurisdiction of the Rome Statute if the alleged crime has taken
place in the territory or by a national of a State Party. Alternatively, states that are not a
party to the Rome Statute may consent to the jurisdiction of the ICC. After the
35 ABA-ICC Project, “Admissibility Assessment.” 36 International Criminal Court, “Informal Expert Paper.”
37 The phrase Proprio motu sources from papal documentation and changes to law at the direct discretion of the Pope. In the context of the ICC, the Latin term means “on one’s own initiative.” See Catholic Encyclopedia, “Motu Proprio.” Accessed December 9, 2019.
prosecutor's preliminary examination, they must report their findings to the Court's
judges for approval of a formal investigation.
Second, State Party referrals are instances when any State Party to the Rome
Statute refers alleged crimes to the ICC. The crimes must have occurred "on the territory
of the State Party that makes the referral or on the territory of another State Party; or by a
national from the referring State Party or another State Party."38 States that deem
themselves unable to try criminals of atrocity crimes in their judicial system may bring
the situation to the ICC; such referrals are a form of State Party referrals called
self-referrals.
Third, the United Nations Security Council (UNSC) possesses the power to bring
referrals. The Council may propose a resolution for approval by the UN General
Assembly (UNGA). If passed by the UNGA, the referral moves to the ICC Prosecutor,
who can accept and begin an investigation. However, if a permanent member of the
UNSC vetoes a resolution, the Court may never gain jurisdiction. For example, Russia
and China vetoed the referral of Syria in May of 2014.39 Currently, of the five permanent
members, only France and the United Kingdom are parties to the Rome Statute,
indicating a lack of support for the Court within this subsect of the UN.
The three avenues of referral, and the cases which came from each situation are
illustrated in Figure One. First, Proprio Motu referrals have led to four situations under
investigation. The situation in Kenya resulted in four cases and Côte d’Ivoire’s situation
resulted in two cases.40 Two of these situations—Burundi and Georgia—are still under
38 ABA-ICC Project, “How the ICC Works.” n.d. https://how-the-icc-works.aba-icc.org/.
39 United Nations News. “Russia, China Block Security Council Referral of Syria to International Criminal Court.” United Nations, May 22, 2014. https://news.un.org/en/story/2014/05/468962-russia-china-block-security-council-referral-syria-international-criminal-court.
investigation and the OTP has yet to determine cases. The majority of situations referred
to the ICC fall under State Party referrals, in total five. Mali, Uganda, and Central
African Republic 1 (CAR 1) each yielded two cases. The situation in the Democratic
Republic of the Congo (DRC) resulted in six cases and the second situation in the Central
African Republic (CAR 2) led to one case.41 To date, only two situations, Sudan and
Libya, passed through the necessary steps from the UNSC referral to ICC investigation.
Sudan resulted in five cases and Libya in three.
Figure 1: Referral Avenues to the ICC42
41 Central African Republic 1 and 2 are separate situations and investigations, with CAR 1 opening in 2007 and CAR 2 opening in 2014.
Regardless of the referral method, the OTP must always begin an
investigation with a “preliminary examination.”43 During this phase of
examination, the OTP determines whether the alleged crimes meet jurisdictional
requirements of the Rome Statute- time frame, territory, subject matter of the
crimes, and personnel, meaning the alleged perpetrator is an individual over the
age of 18. Once these requirements are met, the OTP determines if the potential
cases identified through the investigation satisfy the terms of complementarity,
and if moving forward with an investigation at the ICC serves the purpose of the
Court, of bringing justice for past atrocities and accountability in the future, as
established in the Rome Statute.44 If all the necessary steps are met, the OTP may
turn a preliminary examination into a formal investigation called a situation.
D. Situations and Cases
When atrocity crimes have been committed, the Court requires a referral of
the events containing the crimes, known as a situation, in order to investigate and
potentially bring the individuals found responsible to trial.
The process of investigation by the ICC has two stages of categorization to address
the occurrence of atrocities. On a broad scale, situations which entail all crimes, are
investigated to bring about the more specific cases. Situations are the broad grouping of
the events and actions which contain the alleged atrocity crimes, labeled by the country in
which the events took place. After an event or series of events in which one of the
atrocity crimes tried by the ICC appears to have been committed, the OTP is responsible
to investigate and determine responsible individuals. The International Criminal Court
investigates actions and subsequent events, known as situations, that perpetrated potential
crimes of genocide, crimes against humanity, crimes of aggression, and war crimes.
Situations are “generally defined in terms of temporal, territorial, and in some cases,
personal parameters, entail the proceedings envisaged in the Statute to determine whether
a particular situation should give rise to a criminal investigation."45 After a situation has
been referred to the Court, if the OTP accepts the referral, and an investigation is started.
44 The OTP may decide not to move forward in an investigation if there are substantial reasons to believe doing so is not in the interests of justice. A Pre-Trial Chamber must review this decision. See ABA-ICC Project. “How the ICC Works.”
Until an investigation into the situation finishes, cases cannot be opened against alleged
perpetrators.46
From the investigation into situations, the OTP identifies the individual or
individuals most responsible for the atrocities. Labeled by the name(s) of the
defendant(s), cases “comprise specific incidents during which one or more crimes within
the jurisdiction of the Court seem to have been committed by one or more identified
suspects, entail proceedings that take place after the issuance of a warrant of arrest or a
summons to appear."47 Each case is against an individual, or group of individuals (futher
referenced as defendant(s)) and consists of, at minimum, a single charge of one of the
four crimes tried by the Court, or any combination or number of these crimes.
As a model to explain the distinction, the cases involving Uganda demonstrate the
difference between a situation and a case.48 The Situation under investigation referred to
"alleged war crimes and crimes against humanity committed in the context of a conflict
between the Lord's Resistance Army (LRA) and the national authorities in Uganda since
July 1, 2002."49 From the investigation into the Situation, the OTP determined there were
two cases: Ongwen and Kony, et al. The individuals of these cases were alleged to be the
people most responsible for the crimes committed in the situation and were to be tried at
the Court. As of 2019, Kony et al. remains in pre-trial as the defendants have yet to
appear at the Court, where proceedings cannot continue in absentia. The case against
Ongwen entered trial in 2016, and as of December 2019, awaits a verdict.
46 The situations of Burundi (opened in 2017) and Georgia (opened in 2016) yet contain identified alleged perpetrators, and thus, have yet to result in cases. See ICC, “Situations.”
47 Mohamed M. El Zeidy, The Principle of Complementarity in International Criminal Law: Origin, Development, and Practice (The Netherlands: Martinus Nijhoff Publishers, 2008) 251.
48 The situation in Uganda was self-referred to the Court by the Ugandan government in January 2004. In July of 2004 te OTP officially opened an investigation into the situation. See International Criminal Court. “Situation in Uganda,” n.d. https://www.icc-cpi.int/uganda.
V. Discourse of the ICC
A large majority of literature surrounding the ICC centers on the ideology behind
internationalized courts. The normative reasoning for supporters and opponents to the
Court is important. However, research evaluating the influences on the Court present
active contributions to understanding how the institution interacts with the larger world.
There is a gap in non-theoretical research evaluating the productivity of the Court,
especially when looking at cases individually; this thesis attempts to contribute to filling
the gap in research. By understanding the discourse surrounding the Court and other
internationalized courts I will deduce the measures likely to have the most influence on
trial outcome.
The ICC’s presented mission is to serve as a means of justice that is legitimate,
through legal integrity, and meaningful, by providing victims with “an option and a
possibility of enforcing their rights to truth, justice, and reparations.”50 However, due to
factors from an array of forces, the achievement of such goals is not always successful,
evident through the fact that only ten of the twenty-seven cases brought to the Court have
progressed to trial. In a report for Human Rights Watch (HRW), Evenson examines the
lack of effective strategies by the OTP to counteract the inherent weaknesses and factors
impacting the ICC. Through her analysis of the first four situations investigated by the
ICC— the Democratic Republic of the Congo (DRC), Uganda, Central African Republic
(CAR), and Sudan-- and the progress of the cases spurring from them, Evenson explains
ways by which there are gaps in the productivity and success of the Court. The primary
forces of influence come from external states, the state containing the investigation
(target state) and the reliance of the Court on their cooperation, and the opportunities
provided for victims or witnesses to participate in investigations and trials.51
The HRW report argues that in order to evaluate and resolve issues facing the
Court, one must approach research concerning the individuality and uniqueness of each
situation and the cases within them. Although thematic commonalities exist within the
challenges facing the Court, each case at the Court contains unique aspects which are best
examined through breaking the larger groupings into direct measures. Literature
surrounding international tribunals and courts show an array of ways in which the three
primary areas of impact, as identified by HRW, present themselves on a case by case
basis.
A. External Influences
Elaborating on the research put forth by HRW, external influences consist
of the pressures state place on the target state. Within the category of external
influence there is unity in the impact external influencers have, yet they are
unique in the means by which their influence is exerted. The UNSC, for example,
possesses the political capacity to sway the actions states, especially developing
states. Neighboring states influence ICC capabilities by assisting in apprehension
of alleged perpetrators that are active in geographic regions and by pressuring
neighbors to support interests of human rights.
In 2003, the ICC began investigating the alleged crimes committed in
Uganda by the Lord’s Resistance Army, a religious-extremist rebel group active
throughout central Africa. The referral of this situation represented a
groundbreaking moment in ICC history, as it was the first instance of a state
referring a situation to the Court. As Akaharan argues, Uganda’s referral to the
Court represents clear action by the government to seek restitution and justice for
the thousands of LRA victims, many of whom were children.52 The situation in
Uganda, however, also presents an issue as the investigation into the LRA
presents evidence of activity from alleged perpetrators in countries besides
Uganda. The rebel group was active in multiple countries across the region,
specifically Sudan, the Democratic Republic of the Congo (DRC), and the Central
African Republic (CAR). The defendants in cases sourcing from the situation are
more likely to avoiding capture by crossing the border into states where they have
a pre-established base and evidence of the crimes to be tried at the Court may be
in the neighboring state. If the neighboring state cooperates with the Court’s
investigation and apprehension of the defendants, concerns of the defendant
avoiding capture are lessened. However, if the neighboring state does not hold the
pursuit of justice for the alleged crimes in high regard, the state poses a great
impediment to the progression of investigation and trial as the Court does not
have jurisdiction over the neighboring states to the state of referral.
Political instability, such as an ongoing human rights crisis, in a
neighboring country is shown to have a strong negative impact on a country’s
economic performance, as shown by Chua.53 The impact of conflict within a
regional neighbor mirrors that of an equivalent rise in instability in domestic
52 Payam Akhavan. "The Lord's Resistance Army Case: Uganda's Submission of the First State Referral to the International Criminal Court." The American Journal of International Law 99, no. 2 (2005): 413. Accessed February 15, 2020. doi:10.2307/1562505.
politics. The negative influences travel through two primary channels. First, by
disrupting trade flows. Regions containing instability experience lower overall
trade. Second, instability forces military expansion diverging government
resources from more productive forms of expenditures. These negative economic
results of neighboring conflict expound the negative effects the possible risks of
spillover from nearby political unrest.
Chua concludes that reducing regional instability not only benefits the welfare of
all countries in the region, but also provides economic benefits. Countries thus recognize
the need for policies directed to quelling territorial disputes and creating lasting peace.
Such policy motivations mirror incentives to promote institutions such as the ICC which
strive to create long term solutions to political struggle. Thus, neighboring states have
incentives to pressure states to cooperate with institutions such as the Court to bring
peace, not only on the basis of human rights, but to reap the economic benefits peace
brings.
Identifying failure to appear at the Court as one of the most prominent
impediments to trial movement, Peskin cites the low value for human rights in
neighboring states as a critical issue facing the OTP's prosecutorial trajectory.54
His research also analyzes the situation in Uganda, adding evaluation of the
impact of Sudan's relationship to the Court. In 2005, when the investigation into
Sudan opened, the Court was simultaneously pursuing the arrest of Joseph Kony,
Vincent Otti, and Dominic Ongwen, the three defendants of the cases brought
through the Uganda situation. Peskin argues that evident through their own human
54 Victor Peskin. "Caution and Confrontation in the International Criminal Court's Pursuit of Accountability in Uganda and Sudan." Human Rights Quarterly 31, no. 3 (2009): 657. Accessed March 23, 2020.
rights violations and avoidance of the Court, Sudan’s regime at the time lacked
the appreciation for standards of human rights necessary to use its position as
Uganda's neighbor to impact the objectives of the Court positively. The core of
the relationship between Uganda and Sudan holds for other states. When a
neighboring state does not possess high standards of human rights, they are
unlikely to positively impact Court investigations and processes within the target
state. Rather, low adherence to human rights is likely exerting negative influence
via withholding evidence and failing to assist in the apprehension of individuals
with warrants for their arrest.
The UNSC holds a unique position in relationship to the ICC. Politi and
Nesi analyze the legal influence of the UNSC on the Court and present the ways
this influence can be executed.55 First, the Court’s scope includes partial referral
responsibility. If the UNSC deems a series of events dire enough to require
prosecution, they can pass approval to refer the situation to the ICC. However,
when a permanent member of the UNSC vetoes a referral, the ICC can never try
the case. Secondly, as nearly all issues involving peace and security globally are
brought to the UNSC, it potentially possesses an influence on the states involved.
Triffterer elaborates on the aspects of the relationship between the UN, ICC, and
countries containing situations under investigation.56 The most relevant points in
this portion of the book refer to Articles 11 and 12 of the Rome Statute. These
Articles give allowances for the UN to provide access to headquarters, within
55 Mauro Politi and Giuseppe Nesi, The Rome Statute of the International Criminal Court: A Challenge to Impunity (Ashgate Publishing Limited, 2001): http://libproxy.lib.unc.edu/login?url=https://search-proquest-com.libproxy.lib.unc.edu/docview/59829662?accountid=14244
State Parties, to the Court for use in investigations. Increased UN support for ICC,
will help in providing greater access to evidence, witnesses, and direct
investigation involvement by the Office of the Prosecutor. Support may be shown
to the greatest degree through ratification by other permanent members, or by
issuing official statements encouraging states comply with investigations.
The UNSC permanent members additionally possess power through
implementing their policies related to the ICC. Of the five permanent members, only
France and the United Kingdom ratified the Rome Statute. In contrast, Russia, China, and
the United States all express oppositional stances to the Court. The United States signed
the Rome Statute in 2000 under the directive of President Clinton.57 However, two years
later, the US officially issued a statement against ratification of the Statute, and President
Bush symbolically "un-signed" the Statute.58 As world leaders, namely the United States,
have withdrawn from the Rome Statute, there has been more global criticism of the
legitimacy and usefulness of the ICC. For example, Jack Goldsmith argues that because
of the lack of support from the United States, and similar world powers, the ICC loses
strength and jurisdictional scope.59 The United Nations Security Council maintains
significant influence over smaller states worldwide. As such, the ties and impact of the
UNSC on the ICC have been examined on multiple fronts.
The US created a foreign policy that not only blocks ICC power over US soldiers,
but punishes states who have ratified the Rome Statute. Part of the American
Servicemembers' Protection Act (ASPA) stipulates that if a country has ratified the
57 ABA-ICC Project, “The US-ICC Relationship.” n.d. https://www.aba-icc.org/about-the-icc/the-us-icc-relationship/.
58 ABA-ICC Project, “The US-ICC.”
Statute, it is ineligible for military assistance unless it has a signed agreement to exempt
all American citizens and employees from Court procedures.60 American leverage
extends further into global access, as the refusal to exempt the US from Court access has
been found by Johansen to impact NATO membership eligibility for European states.
The US possesses power over weaker states' ability to fruitfully engage with the global
community while maintaining standards of human rights. Despite intentions of the ICC
being an institution based on justice rather than politics, this is not the reality today.
Through UNSC referral of the situation in Sudan, the OTP was able to build a
case against multiple individuals, one of whom was Omar al-Bashir, who was acting
president of Sudan since 1993. When referred by the United Nations Security Council,
Resolution 1393 was adopted in 2006 to explicitly call on Sudan to cooperate.61 However,
the power of such action ultimately was not effectively carried out due to the Court’s lack
of enforcement mechanism. The ICC does not possess a military or police force to
independently enact the powers of investigation and the defendant apprehension. Thus,
when a state does not act to participate with proceedings, the Court is put in a deadlock.
B. Target State
As an international body, the Court does not preside over territory or
country as the dominant judicial measure. When states cannot legally address
atrocity crimes sufficiently, the Court serves as an alternative path towards
justice. The Court relies on states to give consent to both its legal jurisdiction and
investigations. Thus, the actions by the target state, or state containing the referred
60 Robert C. Johansen. "The Impact of US Policy toward the International Criminal Court on the Prevention of Genocide, War Crimes, and Crimes against Humanity." Human Rights Quarterly 28, no. 2 (2006): 314. www.jstor.org/stable/20072739.
situation, impact the ability of the Prosecutor to conduct full and thorough
investigations. By cooperating with defendant apprehension and evidence
collection, the target state assists in limiting the impediments the OTP may face in
the pursuit of case building.
As the Court does not possess an enforcement mechanism, similar to a
police force or military, states may support investigations by assisting with arrests
or evidence collection providing a way for investigations and subsequent cases to
proceed in a fair and expedited manner. Beyond the ratification of the Rome
Statute, the ICC's legal structure contains an element to ensure the privileges and
immunities of Court personnel so that if an investigation is needed, there already
exists the necessary structures. In the absence of its own enforcement authorities,
such as police or army, the Court established the Agreement on the Privileges and
Immunities of the International Criminal Court (APIC). The APIC attempts to
bridge the gaps left from the lack of enforcement mechanism by establishing a
permanent allowance for Court personnel within states to conduct an
investigation, strengthening the Court's jurisdiction to investigate and
subsequently prosecute cases.
Due to the value the APIC holds to the Court's ability to prosecute
atrocity crimes, states that ratify the agreement show support and adherence to the
objectives of the Court. If a state chooses to ratify the agreement, it is showing it
intends to support investigations within its borders. When building cases that
greater, more readily available access to the target state, which encourages
expedient and efficient trials.
As an alternative to an independent institution, such as the ICC, the global
community may establish hybrid courts to seek justice for atrocity crimes. The
jurisdiction of hybrid courts is based on the combination international and domestic law.
Such courts seek to counteract impediments to productive trials faced by purely
international tribunals. The melding of the two court systems provides global
acknowledgment, and expertise of international law while utilizing the expedition of
pre-established courts of the domestic system and showing domestic adherence to
international standards.62
An example of hybrid courts is the Extraordinary Chambers in the Courts of
Cambodia (ECCC), which was established after the genocide committed by the Khmer
Rouge. Following a request by the Cambodian government to the UN, an agreement was
reached in 2003 to detail how the international community would participate and assist
the Chambers. The purpose of the international element was to assist Cambodia’s legal
system in handling the cases of serious crimes committed by the Khmer Rouge regime
and the global impact of such crimes.63
When states do not have control of the trial, as is the case with the ICC, they may
be less inclined to cooperate with obtaining both the accused and evidence. A lack of
cooperation has the potential to delay or impede the progression of the Court. Mundis
examines issues of excessive domestic involvement in the context of the ECCC,
62 Kerr and Mobekk, Peace and Justice, 83-85.
specifically addressing the change to the charge of genocide.64 The Statute for the
Cambodian Court removes the crucial element that the victim is a part of the "group as
such," diminishing the costs faced by the individual due to group membership, and
negating a vital element of the crime of genocide. The change to legal wording shows a
major divergence from the definition established through the Genocide Convention,
which was the definition used by the International Criminal Court and ad hoc tribunals.
Although alterations by states to charges by the ICC are not possible, Mundis’s research
rings true for state involvement in the Court. As states do not possess the power to
directly influence the procedure of the Court, some may decide that giving full
jurisdiction to an institution does not coincide with its objectives.
Of the most prominent issues facing the ICC is the elusive definition of the
Court's original jurisdiction. When states bring their citizens to trial, they have clear
boundaries of where and what they can try. Depending on the referral method, state
cooperation is more or less likely. Politi discusses national jurisdiction, specifically the
broad reaches of the Court and scenarios in which authority may fluctuate.65 The essential
point of Court jurisdiction is that it reaches as far as the borders of Rome Statute State
Parties go, and conditionally extends further based on UNSC referral or state/self-
referrals. There is critical importance in the type of referral as well as state cooperation,
as both can have significant impacts on the difficulty faced when the Court is seeking
access for investigation and custody of the accused.
64 Daryl A. Mundis, "New Mechanisms for the Enforcement of International Humanitarian Law." The American Journal of International Law 95, no. 4 (2001): 939-40. doi:10.2307/2674654.
65 A nation's supreme authority (sovereignty) and practical authority to administer justice over territories, things, and persons within its boundaries. See InforMEA, “National Jurisdiction.” n.d.
The issue of the Court’s jurisdiction has caused debate among members since its
origins. During the last session of the Preparatory Committee creating the Rome Statute,
a heated discussion developed between the UK and Germany, each with their own
opinion on the best way to rectify the issue of jurisdiction. The UK argued that both the
custodial and territorial states' consent should be required for 'automatic jurisdiction.'
Germany, alternatively, supported the view that there should be universal jurisdiction for
the Court, due to the majority of states' agreement to the Statute. Ultimately, neither
position emerged the 'winner,' leaving states with significant control over Court
proceedings.66
The case of Al Bashir further shows the impact the defendant's
relationship with the regime in power can have. Ssenyonjo identifies the case as
unique because it was the first time the ICC brought charges against a sitting head
of state. As such, the Court encountered impediments to prosecution to a greater
degree than other cases. As the most powerful individual within his state, Al
Bashir possessed sole responsibility for his appearance at the Court, barring the
occurrence of a coup and his forceful removable.67 The Court cannot begin
hearings to confirm charges against a defendant unless the accused individual is
present at the Court. For this reason, when defendants, such as Al Bashir, refuse
to appear, the case gets trapped in pre-trial. The relationship between the
66 Michail Vagias, The Territorial Jurisdiction of the International Criminal Court. (Cambridge: Cambridge University Press, 2014.) doi:10.1017/CBO9781139525374.
67 In early 2019 Al Bashir was ousted as president of Sudan by a coup. In February 2020 a spokesman for the current regime stated they intend to hand Al Bashir over to the ICC to face the charges against him. See Mohanad Hashim, “Omar Al-Bashir: Sudan Agrees Ex-President Must Face ICC.” BBC News, February 11, 2020. https://www.bbc.com/news/world-africa-51462613; See also Manisuli Ssenyonjo, "The
defendant and the regime in power possesses great influence over the Court’s
ability to move forward with proper, expedient proceedings.
C. Societal Characteristics to Support Victims and Witnesses
Due to the similarity in structure and purpose, the ICC faces inherent challenges
that parallel those faced by the other ad hoc tribunals. Tochilovsky explores impediments
to the Court’s functions, including the expectations of the public of recognition, both
internationally and domestically, of the suffering inflicted and the challenges of bringing
justice on a global scale.68 He recognizes the impact that citizens of the target state have
on the participation with, and thus the progression of international trials.
An additional impediment may be the distance between victims or witnesses at
The Hauge, Netherlands, where the physical Court is located. When the physical location
of the trial is in another country, it is often difficult to maintain a positive connection
between those impacted by the crimes in question. Without a robust structure to connect
the local population with another country, and often a legal system with no connections
to the culture of the people, justice as a whole suffers. The positive views of trials often
are difficult when the trials are being held in another country, and by foreign legal
structures.
The horrors of warfare and violence have a uniquely intensified impact on
women and girls. Although identified as a crime against humanity in the Geneva
Conventions and at the Nazi trials at Nuremberg, rape charges did not see
conviction until 2001 at the ICTY. The ruling at the ICTY addressed the use of
rape against women as an act against an ethnic group via attacking individuals.
Franco researches how perpetrators in nearly every instance of planned violence
use rape to exert dominance, emotional and physical trauma against the direct
victim and her family, and destroy the group identity as an aspect of genocidal
violence.69
The societal disadvantages women face intensifies the intensely personal
element of gender-based violence. Beyond the physical and emotional trauma,
women face the weight of shame, and often guilt attached to their attack. Franco
recounts the testimony of a rape survivor of the Guatemalan civil war, “if there is
a theme capable of producing silence (mudez), it is rape.”70 Without a robust
structure to protect, support, and believe the stories of women, the international
community fails to grasp an essential aspect of the atrocities connected with
planned violence. Research suggests that this gap in acknowledgment can be
countered by directed action to provide a space for women's voices when
pursuing restorative justice. Through supporting women's testimony, truth
commissions and trials allow women to talk about the violence specific to their
gender and seek the recognition and justice deserved.
Through researching when and how women come forward with testimony
of gender-based violence as a part of the crimes addressed by the ICC,
Swaak-Goldman identifies four aspects which influence women’s voices.71 First, the
Court must provide unique protections for victims of sexual violence. The trauma
69 Jean Franco. "Rape and Human Rights." Modern Language Association, 121, no. 5 (2006): 1662. Accessed February 15, 2020. www.jstor.org/stable/25501642.
70 Franco. "Rape and Human Rights." 1663.
resulting from gender and sexually based assaults extends beyond the assault
itself to inflict trauma both to the physical and mental wellbeing of the victim due
to the intensely personal nature of the assault. Additionally, women in repressive
societies often face backlash and blame for assaults of this nature, impeding their
ability participate in trials seeking justice for crimes of this nature. Second,
survivors often face great stigma within their communities and become ostracized
once the public gains knowledge of their assault. Third, the Court must address
the perceptions of sexual or gender-based crimes as less significant than other
forms of violence. Due to the stigma women face, the locus of blame often shifts
from the perpetrator onto the victim. For this reason, the Court must take
additional care to protect, address, and bring justice for this aspect of atrocities.
Finally, the Court’s ability to prosecute sexual or gender-based crimes is
significantly impacted due to the underreporting of rape. Swaak-Goldman finds
clear evidence that in societies that marginalize and oppress them, women are
often afraid and too ashamed to come forward to seek justice for their
experiences.72 If women do not come forward due to the culture of their
communities, the Court lacks vital evidence needed to build cases against the
alleged perpetrators. Thus, when target states show evidence of systemic
oppression of women, it is reasonable to assume that attempts at trials are likely to
suffer.
VI. Measures of Influence
Gathered through surrounding literature, my analysis of case progression at
the ICC and the factors which influence it centers on three key categories:
external influences, target state, and societal support for victims and witnesses.
Within these categories I identified core aspects which are likely to impact the
Court. First category is external influences, which contains neighbor state
commitment to human rights, alignment with France, and non-cooperation orders.
Second, I look at target state factors, which consists of commitment to the ICC,
commitment to human rights, and relationship of the defendant to regime. Finally,
I look at societal characteristics to support victims and witnesses, specifically
threat of defendant to society and civil society characteristics.
A. External Influences
Neighbor State Commitment to Human Rights
The relationship of neighboring states to the target state impacts case progression
through diplomatic pressure and, in some cases, seizure of defendants. Neighbor states
hold a stake in maintaining peace in surrounding states to prevent spillover of conflict,
fugitives crossing borders, and impacted trade due to instability.73 The willingness of a
neighbor state to exert leverage and influence on the target state may impact the level of
cooperation of the target state with the Court. The state with the greatest combined trade
influence and shared border can be hypothesized to possess the most significant amount
of impact on the target state.
To determine each target state's most influential neighbor, an additive index of two
measures was created: first, the portion of the target state's border shared with the
neighbor state; and, second, the percent of total imports and exports of all products
between each state for the year the OTP investigation opened. The state with the highest
score is cross-referenced with reported population density to ensure the alignment with
