Centre for Advanced Legal Studies and Research, (CALSAR), Thiruvananthapuram

The International Criminal Court


The International Criminal Court (ICC) is an independent, permanent court that undertakes persons accused of the most serious crimes at the international level, viz. genocide, crimes against humanity and war crimes. The ICC was established through a treaty, joined by 104 countries. The ICC is a court of final resort. It will act only on those cases where the proceedings done by the national judicial system is found to be bogus. For instance, if the formal proceedings were undertaken by the national courts was solely to shield a person from criminal responsibility then the ICC is sought for final adjudication.  The ICC only tries those accused who have committed the gravest of crimes. the ICC furnishes the highest standards of fairness and due process. The jurisdiction and functioning of the ICC are governed by the Rome Statute. The headquarters of the ICC is at the Hague, Netherlands.

Name: Anjali Gurunath Naik 4th year BA LLB Law student Kerala Law Academy, Thiruvananthapuram

There are 123 countries party to the Rome Statute. However, some countries never signed the treaty, including China, Ethiopia, India, Indonesia, Iraq, North Korea, Saudi Arabia, and Turkey. Other countries have signed the statute, but their legislatures never ratified it. These include Egypt, Iran, Israel, Russia, Sudan, Syria, and the United States[1].

The ICC’s first ever hearing was held in 2006, the argument was whether charges should be brought against Thomas Lubanga[2], who was accused of recruiting child soldiers in the Democratic Republic of the Congo. Lubanga’s trial, the first conducted by the ICC, began in January 2009, and in March 2012 the court found him guilty and later imposed a 14-year prison sentence. In May 2007 the court issued arrest warrants for a government minister and a militia leader in Sudan for their roles in war crimes and crimes against humanity committed by Sudanese forces in Darfur. The ICC issued a similar warrant in March 2009 for Sudanese Pres. Omar Hassan Ahmad al-Bashir—the first time the court sought the arrest of a sitting head of state.

In November 2019 the ICC began an investigation into crimes within its jurisdiction allegedly committed by the armed forces of Myanmar (Burma) against the Rohingya, a Muslim community concentrated in Myanmar’s Rakhine (Arakan) state. In March 2022, soon after Russia launched a large-scale military invasion of Ukraine, the ICC announced an investigation into possible crimes committed in Ukraine by Russian armed forces[3].

Criticism –

Criticisms generally come from two directions. Some believe the court has too little authority, making it inefficient and ineffective at putting away war criminals. Others think it has too much prosecutorial power, threatening state sovereignty, and that it lacks due process and other checks against political bias. There has also been debate about the qualifications of judges. Meanwhile, some worry that the prospect of international justice prolongs conflicts by dissuading war criminals from surrendering, though the research on that question is inconclusive. Even advocates of the court have admitted that it has shortcomings. Additionally, some cases have raised legal and moral questions, such as the culpability of former child soldiers who were pressed into service and themselves victimized.

Several major powers echo U.S. complaints. China and India, in abstaining from the court, argue that it would infringe on their sovereignty. Analysts point out that both countries could face investigations if they joined. In 2016, Russia pulled its signature from the treaty after the court classified its 2014 annexation of Crimea as an occupation, and Moscow is unlikely to cooperate with the court’s war crimes investigation in Ukraine.

Many African nations have accused the ICC of disproportionately targeting the African continent. Of the court’s more than two dozen cases, all have dealt with alleged crimes in African states. In 2016, the African Union backed a proposal led by Kenya for a mass withdrawal, though the vote was largely symbolic.

Still, in Kenya and elsewhere, the court maintains broad public support. CFR’s Gavin writes that the opposition of many African leaders to the ICC “is not necessarily aligned with the desire of many Africans for fairness and accountability.”

The ICC seeks to investigate and prosecute those responsible for grave offenses such as genocide and war crimes. Dozens of countries are not ICC members, including China, India, Russia, and the United States[4].

Notwithstanding the ICC as the adjudicating body of final resort at the international arena, it comes with several criticisms. However, the powerful message that it tends to provide is that the perpetrators will not go unpunished. ICC ensures that whoever commits the gravest of offences will be held accountable and punished accordingly. After all, the role of the international judiciary or any judicial body is to promote peace and to enable the victims to live their lives fearlessly with dignity and respect.

[1] Britannica, International Criminal Court, https://www.britannica.com(last visited Aug 28, 2022). 

[2] The Prosecutor v. Ali Muhammad Ali Abd Al Rahman ICC-02/05-01/20.

[3] The Gambia v. Myanmar, ICJ GL No. 178.

[4] COUNCIL on FOREIGN RELATIONS, The Role of the International Criminal Court, https://www.cfr.org(last visited Aug 28 2022).

Email ID: anjaligurunathnaik@gmail.com

Contact no- 8136972384

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