International Criminal Court – Significance and Challenges

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Due to its avoidance of accountability in general, Trump Administration has long been embroiled by the worsened relationship with international organisations like the UNHRC, WHO and now with the International Criminal Court. The US government has blocked assets and imposed travel restrictions against ICC employees who are directly involved in the investigation of war crimes in Afghanistan by the US forces. Though this is not the first time the US opposed ICC’s functioning and powers, its impact is huge as comes at a time when the US is highly unpopular due to its racial tensions and ‘America First’ policy. The recent executive order by the Trump Administration essentially stalls the global fight against impunity for the most serious international crimes, giving scope for other countries to also follow suit.

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What is the International Criminal Court?

  • International Criminal Court (ICC) is a permanent international court based in The Hague, Netherlands.
  • Unlike the International Court of Justice (ICJ), it is not a part of the United Nations system.
  • The relationship between the two international bodies is governed by a separate agreement.
  • The ICJ is among the UN’s 6 principal organs involved in hearing disputes between nations.
  • The ICC, in contrast, persecutes individuals for crimes of genocide, crimes against humanity, war crimes and crimes of aggression.
  • The ICC is criticised for inefficiency and racial bias. All four of its guilty verdicts that are pronounced so far are in trails from Africa.

How did it come to be?

  • The beginning of the 20th Century saw some of the most heinous crimes within the conflict zones and most of these were left unpunished despite breaking the international law.
  • In 1948, when the Convention on the Prevention and Punishment of the Crime of Genocide was adopted, the UN General Assembly recognised the need for a permanent international court to look into the atrocities that have international consequences.
  • This was recognised again following the end of the Cold War.
  • However, during the negotiations on the ICC statute, the world was witnessing heinous crimes in the territory of former Yugoslavia and Rwanda.
  • The UNSC responded to these incidents by setting up an ad hoc tribunal for each of these situations.
  • These events have profoundly affected the decision to convene the 1998 conference in Rome that led to the establishment of ICC.
  • The ICC began functioning on 1st July 2002 after the 1998 Rome Statute came into force.
  • The court was set up as a last resort for persecuting offences that would otherwise go unpunished.

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What is the Rome Statute?

  • Rome Statute of International Criminal Court, which was adopted on 17th July 1998, is the treaty that established the ICC.
  • It sets out rules for the functioning of the ICC.
  • The states that have accepted these rules are called States Parties and are represented in the Assembly of States Parties, which meets at least once a year.
  • Over 123 countries, from Africa, the Asia-Pacific, Eastern Europe, Western Europe, North America, Latin America and the Caribbean, are States Parties to the Rome Statute.
  • These do not include the US, China, Russia and India.

How does the ICC work?

The ICC consists of 4 organs – the Presidency, the Chambers, the Office of the Prosecutor and the Registry. Each of these organs has its own roles and mandate.

Presidency:

  • The Presidency consists of 3 judges (one President and two Vice-Presidents), who are elected by an absolute majority of the 18 judges of the Court for 2-3 year terms.
  • The Presidency is responsible for the administration of the ICC, except the Office of the Prosecutor.
  • It represents the ICC to the global community and is responsible for undertaking other tasks like ensuring the enforcement of sentences imposed by the Court.

Chambers:

  • The 18 judges, including the 3 judges of the Presidency, are assigned to the ICC’s three judicial divisions:
  1. The Pre-Trial Division (consists of 7 judges)
  2. The Trial Division (consists of 6 judges)
  3. Appeals Division (consists of 5 judges)
  • The Judges are elected by the Assembly of State Parties based on their qualifications required in their respective states for the appointment to the highest judicial offices.
  • They must be experienced in the areas of criminal laws and procedures, international humanitarian laws and laws of human rights.
  • These judges are assigned to the following Chambers:
  1. Pre-Trial Chambers
  2. Trial Chambers
  3. Appeals Chambers

Pre-Trial Chambers:

  • The Pre-Trial Chambers, each of which consists of 1 or 3 judges, resolve all issues before the trial phase begins.
  • Their initial role was to oversee the functioning of the Office of the Prosecutor, to guarantee the rights of the suspects, victims and witnesses during the investigatory phase and to ensure the integrity of the proceedings.
  • It would also decide on the issuing of a warrant for arrest, summoning accused at the Office of the Prosecutor’s request and confirming the charges against an individual suspected of a crime.
  • It also decides on the tolerability of the cases and situations and the participation of victims at the pre-trial stage.

Trial Chambers:

  • Presidency sets up a Trial Chamber consisting of three judges to try the case after the alleged perpetrator is arrested and the Pre-Trial Chamber confirms the charges.
  • The Trial Chamber determines whether the accused is guilty or innocent and if found guilty, impose a sentence of imprisonment for a specified number of years not more than 30 years or life imprisonment.
  • Financial penalties can also be imposed by ordering the accused to compensation for the harm suffered by the victims.

Appeals Chamber:

  • It consists of the President of the Court and 4 other judges.
  • All parties to the trial may appeal or seek leave to appeal decisions of the Pre-Trial and Trial Chambers.

Office of Prosecutor:

  • In order to ensure that the ICC’s resources are used only for the most serious crimes of international concerns, the Office of the Prosecutor receives and analyses referrals to determine whether there is a reasonable basis to proceed with the investigation and to conduct prosecutions.
  • The office of the Prosecutor is headed by the Prosecutor, who is elected by the Assembly of States Parties by consensus.
  • It consists of the following divisions:
  1. Investigation Division: It is responsible for conducting investigations that involves collecting and examining evidence and questioning accused, victims and witnesses.
  2. Prosecution division: It is in charge of the litigation of proceedings before the Court. It also plays a role in the investigation process.
  3. Jurisdiction, Complementary and Cooperation Division: It is responsible for external relations and securing the cooperation for undertaking activities of the Office. It is also involved in analysing referrals and communications, with support from the Investigation Division.

Why is India not part of ICC?

India did not adopt the Rome Statute in 1998 and there is no indication of a shift from this position. The main objections of India to the Rome Statute are as follows:

  1. ICC, being subordinate to the UNSC, can be dominated by permanent members and their political interference. These countries have the power to refer cases and block ICC proceedings
  2. UNSC has extraordinary power to bind non-State Parties to the ICC. This is against the fundamental principle of the Vienna Convention on the Law of Treaties, which is that no state can be forced to accede to a treaty or be bound by the provisions of a treaty it has not accepted.
  3. The prosecutor is given extensive powers to initiate investigations and trigger the jurisdiction of the ICC.
  4. Use of nuclear weapons and terrorism not included among the ICC crimes
  • Apart from this, there is the issue of terrorist organisations, with the help of NGOs, using the ICC as a pressure point against Indian Security and armed forces engaged in combating insurgency and terrorism in Jammu and Kashmir and the North East.
  • Yet, not all of these allegations are justifiable.
  • For instance, there are strict safeguards against a politically motivated Prosecutor as he/she has to obtain prior authorisation to proceed with an investigation from a Pre-Trial Chamber of Judges.
  • The ICC’s jurisdiction is based on the principle of complementarity, with absolute priority of exercise of national jurisdiction.
  • This principle does not allow ICC to take up cases that are already being investigated by the concerned State. It will take up cases only when the State is unwilling or unable to carry out the investigation or prosecution.

US and ICC:

What is the history of the US’ relationship with the ICC?

  • There has a long-standing dispute between the ICC and the US.
  • The Clinton administration (1993-2001) was involved in Rome Statute negotiations and signed the document in 2000.
  • However, the next president, George W. Bush in 2002 opted out of the Rome Statute. He justified this by stating the need for protection of US officials from ICC’s interference.
  • Later the US adopted a more positive approach towards the forum during several instances – in 2005, it did not veto a UNSC request to the ICC investigation of crimes during the Darfur crisis. It also provided support in transferring suspects from Africa to the ICC for trial.
  • In contrast to these instances, Trump administration has openly declared that it would not provide support or recognise the ICC.
  • In 2019, the ICC’s chief prosecutor Fatou Bensouda asked for a formal probe into alleged atrocities committed during the Afghan War between 2003 and 2014, which may result in a possible indictment of US military and CIA officials.
  • In March 2020, the ICC judges approved Bensouda’s request.

Why did Trump authorise sanctions against ICC?

  • Economic sanctions and visa restrictions by the US come two months after the ICC approved a probe into possible war crimes by the US troops in Afghanistan.
  • These sanctions are against officials “directly engaged with any efforts to investigate and prosecute US personnel without the consent from the US”.
  • According to Trump, the ICC investigation subverts the US’ sovereignty and threatens the country’s national security and foreign policy.
  • The US considers these investigations illegitimate, as it did not ratify the Rome Statute.
  • However, the statute as it explicitly permits the exercise of jurisdiction when crimes are committed by non-state parties on the territory of a State Party (Afghanistan is a party of the Rome Statute).
  • These investigations will only focus on events in the territory of the member state that joined the ICC treaty.
  • This means that the ICC has jurisdiction to investigate events in Afghanistan even if the US is not a member state. However, the ICC does not have jurisdiction to investigate in the US without the consent of its government.
  • The US’ sanction is unlikely to end the Afghanistan investigation, although it may hinder it as the Afghan government is also against it.
  • It should be noted that ICC’s investigation comes only as a last resort to seek accountability for international crimes that have remained unaddressed by neither the US nor Afghanistan due to unwillingness or inability to investigate.

What can be the way forward?

  • The US’ attack on ICC is not only an assault on a vital international institution but also the overall global human rights norms and victims of horrendous war crimes.
  • This is despite the American jurisprudence accepts that American soldiers who commit crimes overseas may be tried in foreign courts.
  • New York City Bar Association observed that there is no evidence to support the fear that the ICC would engage in political prosecutions against anyone – let along against Americans.
  • In the current juncture, the US authorities can submit individuals suspected of violations in Afghanistan to America’s judicial system to effectively address Afghan victims’ demand for justice.
  • The Trump Administration’s politically motivated efforts to destroy the international institution is short-sighted and pose a threat to the international world order.
  • It must take necessary steps to seriously engage with the international obligations, at least on the aspects of human rights, so that its position in the global forum as a strong representative of democracy is not tainted with explicit violation of human rights.
  • The current domestic unrest in the US due to racism is the result of unwillingness the Trump Administration to ensure justice and accountability.
  • If the US government fails to provide for justice and accountability both at the national and international institutions, it creates a favourable situation for authoritarian regimes in China and Russia to fill the vacuum of global power.
  • Allowing for the investigation of war crimes in Afghanistan at the US courts will enable the US to better represent the democratic values and promote domestic stability.
  • It can also indulge in constructive engagement with international organisations so that countries like China do exploit the situation.
  • Failure to do so could only undermine its diplomatic relations and national security interests.

Conclusion:

Ensuring the existence of strong international court that can question governments for their atrocious crimes in conflict zones is vital in the maintenance of the rule of law. This is especially significant when the status quo of international politics is under threat. Its influence can be ensured only by powerful democracies like the US and India. They must participate in it so that there is global consensus on reforms to ensure greater independence from UNSC, the inclusion of terrorism and use of nuclear weapons under ICC’s jurisdiction and equal justice for all regardless of their race and nationality.

Practice question for mains:

Accountability through justice to war crimes ensures maintenance of rule of law. Elucidate. (250 words)

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