The International Criminal Court (ICC) is an intergovernmental organization and international tribunal located in The Hague, Netherlands. The ICC is the first and only permanent international court with jurisdiction to prosecute individuals for genocide, crimes against humanity, war crimes and the crime of aggression. The creation of the ICC in 2002 was a historic development in international law and relations, representing the culmination of decades of work to establish a permanent international criminal court. The ICC aims to end impunity for perpetrators of the most serious crimes of concern to the international community, contribute to the prevention of such crimes, and promote the rule of law and respect for human rights globally.
The establishment of the ICC is considered a major milestone in the fight against impunity and the quest for international justice. However, the ICC faces numerous challenges and limitations in carrying out its mandate. Criticisms of the ICC include accusations of bias against African nations, concessions to the sovereignty of states, the non-participation of major powers like the United States, Russia and China, lack of enforcement powers, and lengthy proceedings. Despite these challenges, the ICC represents an enduring effort to promote accountability and provide justice for victims when national authorities are unable or unwilling to do so. This article will provide an overview of the history, structure and jurisdiction of the ICC, discuss the major challenges and limitations it faces, and evaluate its role and record in achieving international criminal justice during its two decades of operation.
History of the ICC
Background
The origins of the ICC date back to the post-World War II period and the Nuremberg and Tokyo tribunals established to prosecute Axis war criminals. The Nuremberg trials were the first international criminal tribunals, marking a breakthrough in holding individuals criminally responsible for aggression, war crimes, crimes against humanity and genocide. The success of the Nuremberg and Tokyo tribunals led to attempts to create a permanent international criminal court.
In 1948, the United Nations General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide. This convention affirmed that genocide in wartime or peacetime was a crime under international law, and called for perpetrators to be tried before international tribunals. This built upon the recognition at Nuremberg that certain crimes are so egregious that they constitute crimes against humanity itself, and are thus of universal concern.
During the Cold War, progress on establishing an international criminal court stalled due to tensions between the West and Soviet blocs. However, the concept continued to evolve through the work of legal experts developing draft statutes and proposals. The horrors of conflicts in Cambodia, Rwanda, the former Yugoslavia, and elsewhere in the 1990s brought renewed impetus and public pressure to establish a permanent international criminal court. The ad hoc tribunals set up in this period for specific situations demonstrated that international criminal justice mechanisms could function effectively.
The Rome Conference and Statute
On July 17, 1998, the Rome Statute establishing the ICC was adopted by a vote of 120 to 7, with 21 countries abstaining. The Rome Statute entered into force on July 1, 2002, after ratification by 60 countries. As of November 2022, 123 states are party to the Rome Statute. Key provisions of the Rome Statute include:
- Establishing the ICC as a permanent, independent institution with jurisdiction over persons accused of genocide, war crimes, crimes against humanity and aggression.
- Outlining the structure and governing mechanisms of the ICC.
- Defining the crimes under the ICC’s jurisdiction.
- Setting out the rights of accused persons and victim participation procedures.
- Requirements for state cooperation and enforcement of sentences.
The lengthy process of drafting the Rome Statute and negotiating specific provisions reflected the tensions between sovereignty and international justice. The final statute represented compromises between different legal systems and geopolitical interests. The vote to adopt the treaty was an historic turning point, transforming the ICC from a century-long dream into a functioning reality.
Structure and Jurisdiction of the ICC
Institutional Structure
The ICC is an international organization with an Assembly of States Parties made up of representatives of all the states that have ratified the Rome Statute. The Assembly elects a Presidency to oversee administrative functions, a Judicial Division consisting of 18 judges organized into Pre-Trial, Trial and Appeals Chambers, and an Office of the Prosecutor responsible for receiving referrals and investigating and prosecuting cases. The ICC also has a Registry responsible for non-judicial aspects of administration and servicing the Court.
The ICC is based in The Hague, Netherlands, but cases and investigations may occur anywhere in the world. As an independent body, the ICC operates separately from the United Nations, but the two entities have entered into cooperation agreements. UN Security Council referrals carry particular weight with the ICC. Funding comes from member state contributions based on resources and capacity.
Jurisdiction and Crimes
The ICC has jurisdiction over genocide, crimes against humanity, war crimes and aggression committed by nationals of member states or on the territory of member states after July 2002. Genocide involves acts committed with intent to destroy a national, ethnic, racial or religious group. Crimes against humanity are widespread or systematic serious attacks on civilians. War crimes are serious violations of international law in armed conflict situations. Aggression refers to the use of armed force against another state’s sovereignty or territorial integrity.
The ICC only steps in when national jurisdictions are unable or unwilling to genuinely carry out investigations and prosecutions of these crimes. It operates on a principle of complementarity with national legal systems. Situations may come under ICC jurisdiction through referral by a member state, referral by the UN Security Council, or initiation of an investigation by the Prosecutor. The ICC does not have universal jurisdiction or a standing police force to arrest suspects. It relies on cooperation from member states for investigations, arrests, the collection of evidence, and the enforcement of sentences.
Challenges Facing the ICC
Critiques and Controversies
While the ICC represents an historic advance for international criminal justice, the Court faces a range of challenges and limitations:
- Bias allegations: The ICC has faced accusations of bias and disproportionately targeting African nations. It is true that most of the ICC’s investigations and cases have involved African countries. However, independent analysts attribute this to self-referrals by African states seeking accountability for crimes committed on their territory.
- State sovereignty concerns: The ICC’s authority overrides national jurisdiction in some cases, causing concerns about infringement on sovereignty. Some view the ICC as lacking checks and balances on its authority. Views differ on the appropriate balance between state sovereignty and international justice.
- Non-participation of major powers: The United States, Russia, China, and India have not ratified the Rome Statute and thus remain outside the ICC’s jurisdiction. This reduces the ICC’s effectiveness and credibility. Powerful countries are able to shield themselves and their allies from scrutiny.
- Limited enforcement powers: The ICC has no police force or other enforcement arm. It relies on member states to make arrests and transfer suspects. Lack of cooperation from states has obstructed some cases. Powerful suspects have been able to evade arrest and remain fugitives from justice.
- Lengthy proceedings: ICC cases often involve complex crimes with evidence from multiple countries. Investigations and trials typically take many years to complete. Justice is delayed, with a negative impact on victims, credibility, and the Court’s deterrent effect.
These challenges reflect the difficult task of balancing state sovereignty with the demands of international justice. The ICC represents an imperfect compromise, but remains the closest the world has come to a permanent truly international criminal court.
Record and Impact of the ICC
Cases and Investigations
As of November 2022, the ICC has completed 10 trials, securing 5 convictions and 3 acquittals. Appeals are ongoing in several completed cases. The ICC currently has 11 open cases and 12 active investigations underway in 17 countries, including Afghanistan, Bangladesh, Burkina Faso, Central African Republic, Colombia, Côte d’Ivoire, Darfur-Sudan, Democratic Republic of Congo, Georgia, Kenya, Libya, Mali, Palestine, Philippines, and Uganda. The Office of the Prosecutor receives thousands of complaints and communications about alleged crimes each year, but only a fraction meet the ICC’s strict standards to open a formal investigation.
Noteworthy cases demonstrate the potential impact as well as limitations of the ICC:
- Democratic Republic of Congo: In 2012, the ICC secured its first ever conviction – against Congolese warlord Thomas Lubanga Dyilo for war crimes relating to child soldiers. This marked a milestone demonstrating the court could deliver tangible justice. However several senior DRC suspects remain fugitives.
- Côte d’Ivoire: The 2011 post-election crisis in Côte d’Ivoire resulted in an ICC investigation and charges against political and military leaders from both sides of the conflict. This provided accountability, but also illustrated risks of the ICC seeming politically biased.
- Kenya: ICC prosecution of crimes against humanity charges against Deputy President William Ruto and other politicians caused major controversy in Kenya. Charges were eventually dropped due to insufficient evidence and apparent witness tampering. The Kenyan cases exposed difficulties prosecuting senior state officials.
- Darfur/Sudan: The UN Security Council referred crimes in Darfur to the ICC in 2005. Arrest warrants were issued for Sudanese President Omar al-Bashir and other officials. This was the first time the ICC charged a sitting head of state, but Sudan refuses to hand over suspects.
- Afghanistan: In March 2020, the Appeals Chamber authorized an ICC investigation into alleged war crimes in Afghanistan by all parties to the conflict, including US forces and the CIA. However, practical barriers to investigating major powers remain formidable.
These cases and investigations demonstrate the potential of the ICC to target crimes against vulnerable populations, provide redress for victims, and deter mass atrocities. However, they also highlight the Court’s difficulties in prosecuting senior state officials and obtaining cooperation from powerful governments. The ICC’s impact is constrained by its reliance on voluntary state compliance.
Global Influence and Norms
While practically limited in the suspects it can prosecute, the ICC has made strides in prosecuting gender-based crimes, using victim participation, and giving a voice to marginalized victims. The global norms against impunity are stronger largely thanks to the ICC’s existence and symbolic importance. Surveys indicate a majority of people worldwide support the Court. Ratification of the Rome Statute by a large majority of countries has reinforced commitment to accountability under international criminal law.
Critics argue the ICC has had minimal deterrent effect in preventing atrocities. However, measuring deterrence is complicated and the symbolic impact of the ICC should not be underestimated. The ICC constrains behavior and raises the diplomatic costs of crimes under international law. Justice and accountability processes after atrocities can serve broader social aims related to peace, stability, and reconciliation.
The ICC cannot address all injustices, but remains an imperfect institution still charting the course towards greater accountability. Constructive reforms, cooperation and resources are needed to remedy its shortcomings and help the ICC achieve its challenging mandate.
Conclusion
The International Criminal Court represents a major step forward in the long quest for international justice. Despite its flaws and limitations, the ICC provides a permanent judicial forum dedicated to addressing impunity for the worst crimes known to humanity. The principle of complementarity preserves state sovereignty while creating accountability when national jurisdictions fail to act. Prosecuting senior leaders responsible for mass atrocities offers justice for victims and helps strengthen the international rule of law.
However, as a young institution the ICC faces major challenges in fulfilling its mandate. Accusations of bias, non-cooperation from major powers, limited enforcement capacity, and lengthy proceedings have all hindered its effectiveness. The ICC lacks comprehensive universality and has struggled to successfully bring powerful leaders and states to justice. Nevertheless, the ICC has secured landmark convictions providing accountability for victims, generated valuable jurisprudence on crimes under international law, and reinforced global norms against impunity.
Constructive reforms, broader participation, and institutional capacity building could remedy many current deficiencies. But the ICC will likely remain constrained by lack of cooperation from powerful actors, and the inherent limitations of consensual international justice lacking independent enforcement powers. Despite imperfections, the ICC represents an enduring effort to institutionalize accountability under international law. Two decades since its establishment, the ICC continues to promote international criminal justice, combat impunity, and strive to provide meaningful redress for humanity’s gravest crimes.
References
Schabas, W. (2016). An Introduction to the International Criminal Court. Cambridge University Press.
Stahn, C. (2015). The Law and Practice of the International Criminal Court. Oxford University Press.
deGuzman, M. (2019). An Ideal Worthy of Survivors: The Development of the Right to Reparation for Victims of Human Rights Violations. Human Rights Quarterly 41(1), 1-50.
Akhavan, P. (2019). Can International Criminal Justice Prevent Future Atrocities? American Journal of International Law, 113(1), 7-31.
Bosco, D. (2014). Rough Justice: The International Criminal Court in a World of Power Politics. Oxford University Press.
Stigen, J. (2018). The Relationship between the International Criminal Court and National Jurisdictions: The Principle of Complementarity. Martinus Nijhoff Publishers.
