International Criminal Court (ICC) now a days deals with the conflicting situation of restoring peace and stability through non-criminal sanction measures. The relationship between ICC and member state is governed by the principle of complementarity according to which the jurisdiction of the ICC shall be triggered only if State is unwilling or unable genuinely to carry out its obligation as prescribed under Rome statute on ICC. Thus unlike other various ad hoc tribunals like ICTY, ICTR; the ICC while respecting the national sovereignty imposes primarily erga-omnis obligation on state to punish the person committing jus cogen crimes. Its role is complimentary to the national legal system and doesn’t work as an appellate forum from national courts.
Non-criminal sanctions are alternative mechanism to bring justice. It falls somewhere between the amnesty and criminal prosecution because it neither results in criminal sanctions nor completely exoneration the offence. Non-criminal sanction imposes some sort of civil and political disability e.g. dismissal or disqualification from government jobs etc. The whole crux of the debate revolves on the legitimacy of the non-criminal sanctions under ICC statute. The greatest lacuna of ICC statute is that - it does not provide provision for alternative form of accountability as non-criminal sanction measures which is also non violative of international law under its customary principles.
Since Article 20 of ICC adopts the principle of non-bis-idem that no person should be prosecuted for more than once for the same conduct, a question arises as to whether non-criminal sanction bars the ICC to exercise its jurisdiction. Since only conviction or acquittal of accused by a competent national judicial tribunal on the basis of merit of case bars the ICC jurisdiction under Article 17(3),the argument as to non-criminal sanction is functionally equivalent to being tried by another court gives rise to criticism because in common law system administrative action like dismissal does not bar prosecution. Further administration action are some sort of civil action and it is found that civil action does not bar criminal prosecution on same conduct.
Non-criminal sanctions is a mechanism to restore peace and order by preventing counter reaction again and again under the notion of vengeance vested in the very form of punishment itself. The aim of ICC is not to prosecute and penalize criminals of humanity at the cost of peace. Hence it is argued that the non-criminal sanction should be recognized as bar on ICC jurisdiction if it maintains the minimum standard of international justice. That is to say non-criminal sanction may bar subsequent prosecution under ICC if judged on objective and subjective criteria, it is found relatively proportionate to the culpability of offence (which are less severe). However it is illegitimate and does not bar ICC jurisdiction if that relates to the core persons responsible for hideous atrocities like leader or senior military officers. Thus various persons falling under wider net of command responsibility or joint liability are legitimate subject of non criminal sanctions imposing bar on ICC jurisdiction.
However to prevent the risk that non-criminal sanctions may be used as an instrument for arbitrary closing of prosecution and evading ICC jurisdiction, the prosecutor may trigger the jurisdiction of ICC e.g. it can show that non criminal sanction are on mala fide grounds. However if non-criminal sanction is made under prescribed norm of international law in good faith the concerning state can’t be labeled as “unwilling genuinely”. That is to say unless it is manifestly against the international legal standard non-criminal sanction bars ICC jurisdiction.
Prosecution instead of Non-criminal sanctions at the time of changing of regime may impede peace and negotiation, delay peace process, for obstruct reconciliation. Peace and national reconciliation is legitimate goals of any country to pursue. The rigorous adherence to enforce prosecution may have a disaster impact on state that have just started from its terrific past and is in process of restoring domestic order. It is also against the moral politics to foster common goods of the citizens.Whether ICC has deterrent effect is a matter of dispute because almost all states have imposed severe punishment for ICC crimes. Further the offence of mutiny, waging war against states are such a serious offence that hardly any criminal think about ICC, if he commit any of such offences under national jurisdiction.
It has been repeatedly observed by various international forums that uniform standards cannot be adopted; margin of appreciation is a right of every state because of its distinct historical, social and political conditions. Thus prosecutor under ICC should be given wider discretions not to proceed in a case if it is not going to serve the interest of justice. Because of these jurisdictional and technical issues ICC statute requires modification wherein non-criminal sanction can be given as the legitimatize form of alternative punishment if there is credible negotiation going on for peace or reconciliation. It has been seen in Uganda case that peace process cannot be furthered because of ICC‘s continuing insistence on execution of punishment to the rebellion leader Joseph Kony. Thus there is need for recognition of non-criminal sanctions under ICC so as to make it not only a court of justice but also a court of bringing peace. There is going to be a review conference on ICC in Kampala and I am looking forward to see some progress in this context.
