The International Legal Mechanisms to Stamp out Impunity During Armed Conflicts; The Role of the International Criminal Justice

ABSTRACT 

Humanity has suffered greatly from pain and the ravages of armed conflicts that have claimed the fives of millions of people and because of this, different international Tribunals were found to prosecute the criminals of the most serious crimes to stamp impunity. The latest mechanism of international criminal justice is the ICC. The research answers the questions of whether the ICC provides criminal justice to mankina~, what challenges the ICC faces, what are the weaknesses of the ICC system and what are the solutions to achieve the international criminaljustice? The research reviewed the scholars’ opinions and analyzed the international legal instruments and found that the Rome Statute does not cover all the international crimes. It does not provide ICC the power and jurisdiction to prosecute all perpetrators of crimes as it does not apply to the non-state parties and it bars the ICC from requesting for the surrender of criminals. Furthermore there is a role of politics played in the international criminal justice that makes some perpetrators enjoy impunity. The researcher recommends that in order to achieve the international criminal justice, the ICC should be an independent institution and the nature of the Rome Statute must be changed from complementary system to supranational and the ICC must be given the right to request for assistance from any regional or international organization to enforce the international criminal law.

TABLE OF CONTENTS

Declaration-A

Declaration-B ii

Approval sheet iii

Dedication iv

Acknowledgement v

Abstract vi

Table of Contents vii

List of International Legal Instruments xiii

List of Cases xiv

List of abbreviations xvi

CHAPTER 1: THE PROBLEM AND ITS SCOPE 1

1.1 Background to the study 1

1.2 Statement of the problem 9

1.3 Purpose of the study 11

1.4 Research Objectives 11

1.4.1 Main objective 11

1.4.2 Specific objectives 11

1.5 Research Questions 12

1.6 Hypothesis 12

1.7 Scope of the Study 12

1.8 Significance of the Study 13

1.9 Operational definitions of key terms 13

1.9.1 Geneva Conventions 13

1.9.2 Head of State immunity 14

1.9.3 Impunity 14

1.9.4 International Criminal Court 15

1.9.5 International Criminal Law 15

1.9.6 International humanitarian law 15

1.9.7 Jurisdiction of international criminal court 16

1.9.8 Rome Statute 16

1.9.9 State Parties to Rome Statute 16

1.9.10 United Nations Security Council 17

CHAPTER 2: LITERATURE REVIEW 18

2.1: Introduction 18

2.2: Nuremberg Tribunal 19

2.3: Tokyo Tribunal 24

2.4: International criminal Tribunal for the former Yugoslavia 28

2.5 International Criminal Tribunal for Rwanda 32

2.6 The International Criminal Court 37

2.6.1 The Complimentary Jurisdiction 38

2.6.2 The jurisdiction over nonparties 39

2.6.3 The issue of immunity 45

2.6.4 The fight against impunity 48

2.7 Related Studies 52

CHAPTER 3: METHODOLOGY 54

3.1: Research Design 54

3.2: Research Population 55

3.3 Research methods 55

3.4 Research instrument 56

3.5 Validity and reliability of the instrument 57

3.6 Data analysis 57

3.7 Ethical consideration 57

CHAPTER 4: PRESENTATION, ANALYSIS &

INTERPRETATION OF DATA 58

4.1 Introduction 58

4.2 The international legal principles in respect of armed conflicts 59

4.2.1 Universal conventions (International treaty law) 59

4.2.1.1 Conventions Principles 59

4.2.1.2 The absence of grave breaches Provision 64

4.2.1.3 Geneva Conventions as customary law.. 66

4.2.2 Unilateral international enactment (statutory law) 67

4.2.2.1 Nuremberg Principles 67

4.2.2,2 Yugoslavia Tribunal Statute (ICTY) 70

(a) The violations of laws or customs of war in ICTY Statute 71

(b) Crimes against humanity in ICTY Statute 72

(C) The crime of genocide in ICTY statute 72

(d) Cases before ICTY 73

4.2.2.3 Rwanda’s Tribunal Statute (ICTR) 78

(a) Cases before ICTR 80

4.3 The vio’ations of Geneva Conventions 83

4.3.1 Violations of Geneva Conventions in International Armed conflicts 83

4.3.2 Violations of Geneva Conventions in internal armed conflicts 87

4.3.2.1 Violations in Great Lakes Region 88

(a) DRC case 88

(b) LRA case 91

4.3.2.2 Violations in Middle East 93

(a) The violations in Libya 94

(b) The Violations in Syria 109

4.4 The efficacy of International Criminal justice 114

4.4.1 The Challenge of Jurisdiction 115

4.4.1.1 The Jurisdiction over Non- Party States. 116

4.4.1.2 The Immunity of the Head of State 119

4.4.1.3 The sovereignty of the State 124

4.4.1.4 The Jurisdiction over other International Crimes 126

(a) Jurisdiction over Terrorism 127

(b) Terrorism as a War Crime 129

(c) Terrorism as a crime against humanity 130

4.4.1.5 The Universal Jurisdiction 131

4.4.2 The Enforcement of ICC Jurisdiction 133

4.4.3 The Enforcement Mechanism of ICC 136

4.4.3.1 Weakness in the Rome Statute 136

4.4.3.2 Lack of Enforcement Power 138

CHAPTER 5: FINDINGS, CONCLUSIONS AND

RECOMMENDATIONS 140

5~1 Introduction 140

5.2 Findings 140

5.3 Conclusions 146

5.4 Recommendations 148

BibIiography~.. 151