Although the ICC has denied accusations of disproportionate action against African leaders, saying it defends victims wherever they are, Kenya has not been alone in criticizing the ICC. Sudanese President Omar al-Bashir has visited Kenya, South Africa, China, Nigeria, Saudi Arabia, the United Arab Emirates, Egypt, Ethiopia, Qatar and several other countries despite a pending ICC arrest warrant, but has not been arrested. He said the charges against him were “exaggerated” and that the ICC was part of a “Western conspiracy” against him. The Ivorian government has decided not to try former First Lady Simone Gbagbo, but to bring her to justice at home. Rwanda`s ambassador to the African Union, Joseph Nsengimana, said: “This is not just the case with Kenya. We have seen how international justice has increasingly become a political issue. Ugandan President Yoweri Museveni accused the ICC of “mishandling complex African issues.” Ethiopian Prime Minister Hailemariam Desalegn, then chair of the AU, told the UN General Assembly during the general debate of the sixty-eighth session of the UN General Assembly: “The way the ICC has operated has left a very bad impression in Africa. This is completely unacceptable. To initiate an investigation, the Prosecutor must (1) have “sufficient grounds to believe that an offence within the jurisdiction of the Court has been or will be committed”, (2) the investigation would be compatible with the principle of complementarity and (3) the investigation serves the interests of the judiciary. [101] The principle of complementarity means that the Court will prosecute a person only if states are unwilling or unable to prosecute.
Therefore, if legitimate national investigations or proceedings for criminal offences have taken place or are still ongoing, the Court will not initiate proceedings. This principle applies regardless of the outcome of a national procedure. [102] Even if an investigation is closed without charge, or if a accused person is acquitted by a national court, the Court will not prosecute a person for the offence concerned as long as it is satisfied that the domestic procedure was lawful. However, the effective application of the principle of complementarity has recently been studied theoretically. [103] [102] This requires fair recognition, and the issue of race must be addressed openly. [15] When considering an ecocidal crime at the ICC in relation to climate change, the historical and current role of international law in creating wealth and power imbalances must be openly considered. [16] Access to natural resources – or lack of access – can itself trigger conflict. In the Democratic Republic of the Congo and Haiti, the United Nations Environment Programme concluded that environmental degradation was a major cause of political unrest and conflict.
It is estimated that in the 1990s, about 5,000,000 people were killed in armed conflicts related to the exploitation of natural resources, and that a quarter of the 50 active armed conflicts in 2001 were largely “resource-driven”. The proposal essentially consists of a new Article 8ter of the Rome Statute of the International Criminal Court (ICC), which would add a fifth core crime of ecocide to the four existing crimes (genocide, crimes against humanity, war crimes and crimes of aggression). The authors define ecocide as the commission of “unlawful or deliberate acts knowing that there is a substantial likelihood that these acts will cause serious, widespread or long-term environmental damage.” With regard to criminal policy, this proposal is part of a general trend towards the application of (criminal) law to protect the environment – think, for example, at the level of international law, of the International Law Commission`s 1991 draft code on crime and the security of mankind, which proposes the crime of “intentional and serious damage to the environment” (Article 26). The authors hope that this will lead to a shift in consciousness, i.e. they refer to a general (positive) preventive effect that goes beyond mere (negative) deterrence. However, they do not provide empirical evidence to support this hope, and criminological research on the effectiveness of criminal law – both negative and positive – actually points in a less optimistic direction. [11] Ibid., see also Kamari Maxine Clarke, 24. July 2020, Negotiating Racial Injustice: How International Criminal Law Helps Entrench Structural Inequalities, Just Security, Online: www.justsecurity.org/71614/negotiating-racial-injustice-how-international-criminal-law-helps-entrench-structural-inequality/; Randle C DeFalco, Frédéric Mégret, 10 June 2019, The invisibility of race at the ICC: lessons from the US criminal justice system, London Review of International Law, Volume 7, Issue 1, March 2019, pages 55-87, doi.org/10.1093/lril/lrz002; The full list of accused can also be found here: en.wikipedia.org/wiki/List_of_people_indicted_in_the_International_Criminal_Court#Vincent_Otti Every year in November, the United Nations celebrates the “International Day for Preventing the Exploitation of the Environment in War and Armed Conflict”.