NAME; SAN’GANYI B.N. I.D 650750
COURSE CODE; IRL4020 INTRODUCTION TO INTERNATIONAL LAW
TOPIC; MERITS AND DEMERITS ON THE PETITION TO HAVE THE GOVERNMENT INVESTIGATED
DUE DATE; 22 October 2018
The International Criminal Court (ICC) aims to promote not only justice, but also peace. It has been widely criticized for doing neither, yet it has to contend with some severe structural and political difficulties: it has limited resources, it faces institutional restrictions, it is manipulated by states, and it is criticized for an alleged selectivity in the way it dispenses justice. However, the ICC could contribute significantly to the promotion of international justice and peace, and have a major impact on the prevention of crime, since its prosecutions represent a clear threat to highly placed individuals who commit serious crimes. While this article concentrates on the work of the ICC in Africa, the only continent where it has issued indictments against suspected criminals, it also looks at its efforts on other continents. It argues that, in the larger international context, the contribution of the ICC to international justice and peace depends on its institutional power and the support it receives from states, on its own impartial work, and on the way it is perceived by potential criminals and victims in the world
The International Criminal Court (ICC) was created in 2002. The aim of the ICC is to put an end to impunity for perpetrators of the most serious crimes of concern to the international community, and to contribute to the prevention of such crimes. The ICC can prosecute any individual anywhere in the world, but for suspected criminals who are citizens of a state which has not ratified the ICC Statute, a United Nations Security Council (UNSC) resolution is necessary.
Despite the ethical and human rights agenda of the ICC, and its ambition to punish criminals and prevent crimes, it is not always subscribed to by international organizations, states and people. As of 2013, a majority of states in the world have ratified the Rome Statute that established the institution. The ICC has jurisdiction with respect to a particular range of crimes: genocide, crimes against humanity, war crimes, and in 2017 it may be able to investigate the crime of aggression committed by one state in another state. (Médard, C. 2008)
The ICC Preamble declares that these are serious crimes which threaten the peace, security and well-being of the world. However, the terms ‘peace’ and ‘justice’ are not defined in the ICC Preamble, and this leads to different interpretations, as peace and justice for some can mean conditions of war and injustice for others.
Mau eviction case.
The Environment and Land Court in Narok County had declined to stop the Mau Forest evictions in a case filed by Kericho Governor Paul Chepkwony.The Governor says the eviction is politically motivated as the attempt in 2005 was stopped by the court, and now the ‘cartels’ are back and want to forcefully take the pieces from their rightful owners.
The government has been accused of carrying out ‘brutal’ Mau evictions by torching houses, intimidating people and forcing children to sleep in the cold. A section of leaders blamed Narok county commissioner George Natembeya over the evictions from the Mau Forest.Bomet Central MP Ronald Tonui and a section of MCAs from Narok accused the county commissioner of “being too harsh and inconsiderate” to people and property. They said evictees, including young children, are sleeping out in the cold after their houses were torched (Klopp, J. M., ; Sang, J. K. 2011)
The Nation also learnt yesterday that the emotive debate over the Mau Forest evictions would head to The Hague-based International Criminal Court (ICC). A source who sought anonymity revealed that the evictees’ lawyers had written to the ICC over the violation of Article 7 of the Rome Statute.
Families were separated and some children left stranded, not knowing the whereabouts of their parents. Grace Rono has four children with her, but she does not know who their parents are. She says she has been with the children for a week and has been trying to locate their parents in vain. (Baldyga, T. J., Miller 2010)
When the eviction started people were beaten and families were separated. I have been staying with them since as they don’t know their parents’ whereabouts. This government (Narc) does not respect the rule of law. It is unfortunate schools have been closed with children denied their universal right to education. It a tragedy Kenya is being ranked with failed States. (Getz, K. A. 2013)
Victim participation can be one of the major contributors to the effectiveness, credibility, and fairness of the ICC; and this is a major imperative in relation to Africa from where the vast majority of ICC cases have come from. The victim participation system at the ICC is governed by Article 68(3) of the Rome Statute, which states: “Where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court…” Given the vagueness of this Article, it has been left to the jurisprudence of the Court to determine just how victims can participate in proceedings.
The International Criminal Court says it has received a petition from a Kenyan lawyer who wants the Kenyan government investigated for crimes against humanity allegedly committed in during eviction of families from Mau Forest. But the court is categorical that the next step will largely remain open as experts in the Office of the Prosecutor assess whether recent evictions fall within its jurisdiction in the first place.
BENEFIT’S OF TAKING A CASES TO ICC
It is a Global Court for the powerless – Around the globe, victims of genocide, crimes against humanity and war crimes are demanding justice and redress. By making the ICC and Rome Statute system of international justice truly GLOBAL, individuals suspected of committing these universally disapproved crimes can be held to account in courts of law around the world.
It is a Court of last resort – The ICC prosecutes individuals for war crimes, crimes against humanity and genocide. But only if governments don’t do so first.
It gives us a path to global peace – Grave crimes threaten the peace, security and well-being of the world.
It is a symbol of hope – Throughout history, millions of children, women and men have been victims of unimaginable atrocities. In the 20th century alone, an estimated 200 million people died as a result of conflict, massacres and oppression. That’s around 1 in every 27 deaths.
It is independent and impartial – One of the main achievements and pillars of the Rome Statute is the independence of the ICC, including the prosecutor and judges, from governments and from the United Nations Security Council. The ICC Rome Statute carries with it safeguards against politically motivated investigations and prosecution.
the court’s decision making process is common law, which means that judges, and not a jury, decide the fate of the accused based on legal precedence and knowledge of the law. Although this is contrary to the United States legal system, it definitely has its benefits. The common law practice definitely ensures that the rights of the individual, as well as the palpability of the court are handled by professionals. This is very important with an international forum because of the vast differences between hundreds of judicial systems. A civil law court at the international level is simply not practical. By granting the fate of inductees to the judges, a system of checks and balances has also been included in the Rome Statute and is therefore utilized by the court. The appeals system for the ICC creates an atmosphere of fairness and justice that protects all individuals, from the defendants to the victims, of their alleged crimes. Lee, B. J. (2009
In the ICC an appeal can not only be granted for guilty verdict, but also an acquittal. This additional appeal gives the prosecutor a second chance to submit additional evidence that may change the determination of the judgment. In creating a system in which the court can interpret international criminal law, it has correctly identified the issue that needs to be addressed in order for the court to blossom and reach its full potential. It will need to create a system in which precedence can be established and therefore common law is correctly carried out.
As much the case is still in the Kenyan courts the following demerits will face the petition on its jurisdiction of the court.
The case being already heard in the Kenyan courts the ICC will have no obligations but to have the case take its way until, there is loophole to join. The case may be away from ICC operations.
The accused despite being Kenyan civilians given land as squatters it is hard for ICC to interfere settlement of people in need of free land, despite a rough eviction with sovereign Kenya government decision’s to secure the may forest…
Over many years justice delivery, despite the Governor may need quick action the ICC takes a lengthy time to ensure sufficient evidence.
legitimacy, is another problem at ICC, as the court selects and picks certain cases the picked sections may be not at the Governors interest as he has his own issues that he feels they should be addressed.
The mau civilians given the land by the government to settle in for a while they have no obligations but to move and ensure the government buffer zones are free from unnecessary
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Baldyga, T. J., Miller, S. N., Driese, K. L., ; Gichaba, C. M. (2008). Assessing land cover change in Kenya’s Mau Forest region using remotely sensed data. African Journal of Ecology, 46(1), 46-54.
Boone, C. (2012). Land conflict and distributive politics in Kenya. African Studies Review, 55(1), 75-103.
Getz, K. A. (2013). International codes of conduct: An analysis of ethical reasoning. Journal of Business Ethics, 9(7), 567-577.
Klopp, J. M. (2000). Pilfering the public: the problem of land grabbing in contemporary Kenya. Africa Today, 7-26
Klopp, J. M., & Sang, J. K. (2011). Maps, power, and the destruction of the Mau Forest in Kenya. Georgetown Journal of International Affairs, 125-134.
Lee, B. J. (2009). The International Criminal Court. Fla. Coastal LJ, 2, 197.
Médard, C. (2008). Key issues in disentangling the Kenyan crisis: evictions, autochthony and land privatization.
Paust, J. (2010). The reach of ICC jurisdiction over nationals.
The nation newsroom, Wayne one 2017, onset of may chaos and eviction of illegal inhabitants.