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Former International Criminal Court judge defends court’s record

December 08, 2015

By Emily Offit C’17

On October 28, the University of Pennsylvania Law School Bok Visiting International Professor Series hosted Akua Kuenyehia, who addressed one of the main criticisms of the International Criminal Court (ICC): that it targets poor, African, or “third world” states while neglecting to investigate and prosecute powerful nations.

Kuenyehia was a former judge of the ICC, where she served from 2003 to 2015. She was also the first female Professor of Law in Ghana and former Law Dean at the University of Ghana. Her talk was co-sponsored by Penn Law’s Office of International Programs and Penn’s Department of Africana Studies.

The ICC is an independent organization that prosecutes any individual who they feel has committed a crime of humanity, genocide, or war crime. Many have criticized the court for mainly prosecuting African heads of states, including those in Kenya and Sudan, while ignoring war crimes of more powerful countries. As an African female judge on the committee, Kuenyehia is the target of many of these sentiments.

“You get this perception fueled by academics and non-governmental organizations that [the ICC] is a new colonialist Western organization loading into poor African countries,” Kuenyehia said. “This is not the case.”

Kuenyehia argued that state parties from a number of African states, as well as the U.N. Security Council, refer violent situations to the court, and that is the prosecutor’s job to decide whether or not to carry out an investigation. The ICC will prosecute any individual who they feel has committed the crime, whether it is by national rebels or even the government of the state. She feels that this has become a sore point for politicians.

“The reason why [the heads of states] are making a lot of noise is because now everyone sees that there is an institution that can investigate and prosecute.” Kuenyahia said. “[The ICC] is not a perfect institution…and as we go along we go back and look at how we can improve.”

An ICC investigation should be a last resort, she noted. Under the principle of complementarity, the court will only decide to intervene if a country or state is unwilling or unable to prosecute cases, such as when a state’s judicial system has collapsed during conflict.

Under this principle, she explained, countries like the United States and United Kingdom have demonstrated that they have functioning systems and can carry out their trials fairly without intervention from the ICC.

Kuenyehia also discussed the fact that when conflict arises in many countries, gender crimes are almost always committed, including sexual abuse and slavery.

She feels that the ICC has taken great lengths to prosecute these gender crimes and it recognizes the need to have structures in place to train judges and other individuals on how to handle them. The ICC has also ensured that the definitions of war crimes and crimes against humanity have covered these crimes against women as well.

“It is important that there is protection and accountability for the kinds of horrible things that are committed in the course of conflict,” Kuenyehia said.

As a Bok Visiting International Professor, Kuenyehia taught a three-week course at Penn Law on the ICC from the perspective of an Appellate Judge, where students got an inside view on the workings of the ICC.