International Criminal Court- Functioning and achievements

Recently, an application was presented to a pre-trial chamber of the International Criminal Court (ICC) to issue arrest warrants against five individuals linked to the conflict in Gaza. The five individuals are- Israeli Prime Minister Benjamin Netanyahu, Israeli Defence Minister Yoav Gallant, and three Hamas leaders Yahya Sinwar, Mohammed Diab Ibrahim Al-Masri (Deif) and Ismail Haniyeh.The arrest warrants were sought on the charges of war crimes and crimes against humanity over the October 7 attack on Israel and the subsequent war in Gaza.

ICC over the years has been instrumental in legally redressing grave international crimes. However, it suffers from serious challenges in the effective implementation of its verdicts.

What is the International Criminal Court? What is the jurisdiction of ICC?

The International Criminal Court (ICC) was established by the Rome Statute 1998. It is headquartered in Netherland. It is built on the legal legacies and jurisprudence of international courts concluded before it such as the ad hoc United Nations tribunals for Rwanda and the former Yugoslavia.

Aim- To ensure legal redress for grave international crimes including genocide, war crimes, and crimes against humanity.

Jurisdiction- The Rome Statute grants the ICC jurisdiction over four main crimes-

a. Crime of Genocide- Acts committed with intent to destroy a national, ethnic, racial or religious group.

b. Crimes against Humanity- A large-scale attack against any civilian population.

c. War crimes- These are grave breaches of the Geneva conventions in the context of armed conflict.

d. Crime of Aggression- It is the use of armed force of a State against the sovereignty, integrity or independence of another State.

Relationship with the UN- ICC is an Independent organisation. It is not governed by U.N. It can receive referrals from UNSC. However, it can also initiate prosecution without UN action.

Funding- Voluntary contributions from the U.N; voluntary contributions from governments, international organizations, individuals, corporations and other entities.

What is the significance of ICC?

1. Global court of last resort for human rights violations- ICC serves as the global court of last resort for four types of gross human rights violations- genocide, crimes against humanity, war crimes and crimes of aggression. It investigates and prosecute these crimes when states are unwilling or unable to do so at the national level.

2. Accountability for Atrocity- The Rome Statute has made accountability for atrocity crimes an integral aspect of the rule of law. This ensures that perpetrators of grave crimes are held accountable by national courts or the ICC.

3. Global Reach and Impact- The ratification by 123 States of the Rome Statute, demonstrates a broad international commitment to international justice.

4. Emphasis on Victim’s rights- The ICC places a strong emphasis on the position of victims. ICC also supports them through court-ordered reparations and victim assistance programs. For ex- Creation of Trust Fund for Helping the victims financially.

What have been the achievements of International Criminal Court?

1. Institution of criminal proceedings against head of state- Under International Law, the heads of state are immune from criminal proceedings at any foreign or international court . However, such immunity is not available for the head of states at the International criminal court. For ex- Issue of arrest warrant against Putin in 2023 for his role in Russia’s war with Ukraine.

2. Exercise of territorial jurisdiction- ICC exercises territorial jurisdiction to serve justice. This means that if a crime is committed on the territory of a state party to the ICC, the Court can exercise jurisdiction on that crime, even if it is committed by people belonging to a state that isn’t its member. This has been applied in instituting war crime cases against Russia and Israel, which are not its members.

3. Convictions in cases of War Crimes- ICC has now heard 31 cases of genocides and convicted 10 people. First ICC conviction came in March 2012, when Thomas Lubanga Dyilo was found guilty of war crimes for using child soldiers in conflict in the Democratic Republic of the Congo.

4. Growing Deterrent Effect- The presence of International Criminal Court has shown signs of a growing deterrent effect. Some African States have cited the risk of prosecution by the ICC as a crucial factor in preventing large-scale violence surrounding elections.

What are the Challenges with the Functioning of International Criminal Court?

1. Weak track record of prosecution- The ICC’s track record in prosecuting the heads of states has not been encouraging. There is a long road from requesting an arrest warrant to actual prosecution. For ex- Even though the arrest warrant was issued against the former Sudanese President, Omar al-Bashir in 2009, the leader has been not been persecuted.

2. Dropping of charges- There have been several cases where the charges of war crimes have been dropped by the ICC, even after the issuance of arrest warrant. For ex- Simone Gbagbo the former first lady of the Ivory Coast, was initially issued an arrest warrant. However, the ICC dropped the charges later.

3. Selective targeting of Third World leaders- The ICC has also been criticised for selective targeting leaders of the third world leaders, and not Western powers and their allies.

4. Lack of effective cooperation with the security council- ICC also faces the challenge of lack of effective cooperation from the UN security council to discharge the mandate of the Security Council resolutions. For ex- Lack of effective support by the UNSC for the release of the detained ICC staff on an official mission to Libya.

5. Lack of Funding support- The Rome Statute and the relationship agreement between the ICC and the UN anticipate that the UN shall help fund the costly investigations and prosecutions of UN Security Council referrals. However, the resolutions like Sudan and Libya resolutions which prohibit UN funds from helping the ICC, add to the financial challenges of the ICC.

6. Pull-out of member states- The pull-out of member states like Burundi in 2017 and the Philippines in 2019, have domino effect on other member states to pull out. This weakens the credibility of the ICC as an organisation.

7. Non-universality of Rome statute- The ICC’s membership is far from universal. 70 of 193 UN member states are not ICC members. Prominent countries such as China, India and Saudi Arabia have never signed the Rome Statute. Also, three of the five permanent members of the UN Security Council – China, Russia and the USA, seek to shield themselves from the Court’s jurisdiction.

8. Political Interference- Several member states have been accused of attempts at political interference in the ICC’s governing body and in the election of judges and the ICC’s Prosecutor.

What Should be the Way Forward?

1. Universal ratification of Rome Statute- Non-ICC member states should be nudged to ratify the Rome Statute. Civil society should push for universal ratification and the strengthening of the ICC.

2. Member states to ensure smooth functioning- ICC member states should commit to financially strengthen the International Criminal Court and refrain from political interference.

3. Neutrality- The ICC in its functioning must display political neutrality and unbiasness. For ex- The institution of cases both against the Israel and Hamas leaders strengthen the credibility of ICC as an organisation.

4. Providing the necessary manpower- ICC does not have its own police force or enforcement body. It relies on cooperation with countries worldwide for support. Adequate manpower must be provided to the ICC for it to effectively discharge its duty.