This article has been written by Ms. Sreejeeta Das, a second-year student of Symbiosis Law School, Hyderabad.

Abstract

The pioneering International Criminal Court (ICC) was established to end injustice for the most significant crimes in the history of mankind. Despite challenges in executing arrest warrants, the International Criminal Court’s involvement in the Darfur case in Sudan emphasises the significance of holding individuals accountable. Through referrals, resolutions, cooperation agreements, and diplomatic actions, the UN has been instrumental in providing the ICC with the framework and backing it needs to pursue justice. Reforms to the ICC include removing boundaries of jurisdiction, enhancing independence, and promoting cooperation with nations that are not members.

Keywords: International Criminal court, United Nations, War Crimes, Genocide, International Law

Introduction

Through the ages, nations have been tormented by war crimes, atrocities that shock the conscience of humanity. The International Criminal Court (ICC) was founded in response to the necessity for a strong and unbiased institution to deal with such horrible acts. The Court is evidence of the global community’s determination to eradicate the culture of impunity that has permitted war crimes to continue. In the more enormous international efforts to fight impunity, the ICC is essential. In the past, war criminals have frequently escaped punishment because there was no long-lasting, widely recognised legal body with the power to bring charges against them. This gap is filled by the International Criminal Court (ICC), which offers a venue for the prosecution and conviction of war criminals regardless of their nationality or the geopolitical environment. A significant step towards achieving global justice and preventing impunity for the most horrific crimes known to humankind has been taken with the creation of the International Criminal Court (ICC). The International Criminal Court (ICC) was created as a reaction to the shortcomings of temporary tribunals and the requirement for a permanent establishment. It is essential in dealing with crimes that cause great distress to the human race. The idea of an international criminal court that would be permanent gained traction during the Nuremberg Trials and the subsequent creation of ad hoc courts for Rwanda and Yugoslavia. The Rome Statute, which was approved on July 17, 1998, marked the conclusion of these efforts and paved the way for the establishment of the ICC. On July 1, 2002, the ICC was formally established, which was a significant milestone in the global effort to end impunity for grave international crimes. The International Criminal Court’s (ICC) primary goal is to bring cases against those guilty of war crimes, crimes against humanity, genocide, and, as of 2018, aggression. The International Criminal Court (ICC) aims to give victims justice, discourage further violations, and help avoid similar crimes by holding offenders accountable for their acts. This overall goal demonstrates the determination of the international community to guarantee that those accountable for the most heinous crimes suffer the repercussions of their actions. The International Criminal Court (ICC) functions based on complementarity and primacy principles rather than having universal jurisdiction. 

According to the principle of complementarity, the ICC only steps in when national legal systems are unable or unwilling to bring criminal charges against specific people. Contrarily, primacy emphasises the ICC’s ability to supersede national courts and highlights its function as a court of last resort. The four prominent offences covered by the ICC’s mandate are: Genocide is defined as acts carried out with the purpose of eradicating a national, ethnic, racial, or religious group entirely or partially. Enslavement, torture, murder, and other widespread and systematic acts perpetrated as part of a systematic attack against any civilian population are considered crimes against humanity. War crimes are defined as grave violations of the Geneva Conventions as well as other significant infractions of the laws and customs of war when they take place during an armed conflict. Crime of Aggression: When, and under what circumstances, a state uses armed force to violate the independence, sovereignty, or integrity of another state. 

The Structure and Functioning of the International Criminal Court (ICC): Safeguarding Justice and Accountability

An international hope for justice for the most horrific crimes is the International Criminal Court (ICC). Its operation and organisational structure are carefully thought out to guarantee impartiality, efficacy, and justice when it comes to the prosecution of people for crimes against humanity, war crimes, crimes of aggression, and genocide. 

1. The Office of the Prosecutor, Chambers, and the Presidency: Three judges make up the ICC Presidency, which is in charge of managing the Court’s general operations and judicial duties. The President is essential to the efficient coordination of the Court’s operations and to the ICC’s external representation. The Pre-Trial Chamber, Trial Chamber, and Appeals Chamber are the three separate chambers of the ICC that perform judicial tasks. These Chambers have the authority to make decisions about inquiries, charge confirmation, trials, and appeals, in that order. The Office of the Prosecutor (OTP), led by the Prosecutor, is in charge of looking into and prosecuting offences that fall under the purview of the International Criminal Court (ICC). The Assembly of States Parties elects the Prosecutor, who acts independently to maintain objectivity in the execution of their responsibilities. 
2. Registry and Defence: The Registry is in charge of supporting the Chambers and the Office of the Prosecutor and functions as the ICC’s administrative branch. Its duties encompass enabling victims to participate, guaranteeing the defence has the required resources, and overseeing the Court’s overall logistics. By defending the accused, the defence is an important part of the ICC’s proceedings. Defence attorneys provide legal expertise, refute evidence, and fight for the accused’s rights in order to ensure a fair trial. The ICC highlights that an essential component of the Court’s dedication to justice is the accused’s right to a strong defence.

Legal Procedures and Principles:

1. Primacy and Complementarity: According to the complementarity principle, the ICC can only step in when national legal systems are unable or unwilling to bring charges against specific persons for crimes that fall under its purview. This idea emphasises the Court’s function as an additional jurisdiction, not a replacement for it. The concept of primacy highlights the ICC’s power to supersede national courts in the investigation and prosecution of crimes falling under its purview. This guarantees the ICC acts as a court of last resort, stepping in only when home legal systems are unable to hold people accountable.
2. The Prosecution, Trial, and Investigation Processes: When it comes to circumstances and cases that fall under the purview of the ICC, the Office of the Prosecutor conducts exhaustive and impartial investigations. Gathering information, speaking with witnesses, and working with the appropriate authorities are all part of this procedure. Presenting charges against someone while making sure the evidence satisfies the necessary requirements is what the prosecution phase entails. If the charges satisfy the required legal standards, the Pre-Trial Chamber evaluates the evidence and approves the charges. The Trial Chamber of the International Criminal Court oversees trials during which the prosecution and defence present their respective cases. The accused is entitled to a public, impartial trial that is carried out in compliance with accepted legal norms. As a last resort for review, the Appeals Chamber guarantees the impartiality and integrity of the trial procedure.

United Nations Pivotal Role in Establishing the International Criminal Court (ICC): A Partnership for Global Justice

With the adoption of Resolution 3314 in 1974, the United Nations General Assembly was instrumental in the creation of the International Criminal Court. This resolution provided a definition for the crime of aggression and paved the way for it to fall under the purview of the International Criminal Court eventually. Resolution 3314’s definition, which established a framework for dealing with one of the most severe crimes falling under the ICC’s jurisdiction, became a cornerstone in the evolution of international law. Another significant UN body, the UN Security Council, has the power to send cases to the ICC. The UN Security Council is empowered to deal with threats to global peace and security under Chapter VII of the Charter. The Security Council’s referrals of cases to the ICC have been crucial in prosecuting those guilty of war crimes, crimes against humanity, and genocide.

To enable cooperation in areas of shared interest, the UN and ICC have official cooperation agreements in place. These agreements specify how resources, knowledge, and skills can be shared. They stress that successful responses to conflict-related crimes necessitate coordination between the two entities. In addition to working together to prosecute crimes, the UN and ICC actively prevent and resolve conflicts. This cooperation is demonstrated by the ICC’s assistance in the UN’s efforts to uphold and restore peace during peacekeeping missions. The UN’s overarching objectives of fostering security, stability, and respect for human rights in post-conflict communities are enhanced by the work of the ICC. Justice, accountability, and the rule of law are shared values exemplified by the UN and ICC’s dynamic cooperation. The UN and ICC cooperate to address the underlying causes of conflict, stop atrocities, and make sure that those who commit horrible crimes are held accountable. 

Challenges and Criticisms Facing the International Criminal Court (ICC): Navigating the Complex Path to Global Justice

Even though the International Criminal Court (ICC) is a ground-breaking organisation created to end impunity for the worst crimes, it has complaints and issues highlighting how difficult it is to accomplish its goal. 

1. States That Are Not Members and Jurisdictional Limitations: 

The US and Additional Non-Ratifying Nations: A significant player in the world, the United States has been reluctant to ratify the Rome Statute due to worries about possible politicisation and the susceptibility of its military members to trials driven by political motives. The United States’ lack of participation in the ICC presents a significant obstacle to the organisation’s universality and its capacity to prosecute crimes committed by powerful states successfully. The arrest and surrender of people suspected of crimes are contingent upon state assistance, according to the ICC. Nonetheless, certain non-member states can be hesitant to abide by arrest warrants, particularly those with significant military or political clout. This severely challenges the ICC’s ability to hold people responsible for their deeds.

1. Selectivity and Political Influence: 

Claims of Bias and Manipulation: The ICC has been accused of bias, according to critics, mainly because of its emphasis on African problems. Even though the bulk of cases before the ICC come from Africa, questions have been raised regarding possible selectivity and a disregard for crimes perpetrated in other areas. The credibility and efficacy of the Court are in jeopardy due to this sense of partiality. The credibility of the ICC is undermined by the sense of political control and selectivity. Bias accusations could erode the legitimacy of the Court in the eyes of member states and the larger international community. In order for the ICC to carry out its duty, these issues must be resolved, and a steadfast dedication to impartiality must be shown.

III. Addressing Challenges and Building Trust: While these challenges are significant, addressing them is essential for the ICC’s success. The Court can enhance its credibility and overcome jurisdictional limitations by engaging in constructive dialogue with non-ratifying states, addressing concerns, and fostering cooperation. In response to allegations of bias, the ICC must actively demonstrate impartiality in its investigations and prosecutions, ensuring a more balanced geographical focus.

Exploring Notable ICC Prosecutions and the UN’s Impact on Justice

1. Situation in Darfur: Due to numerous accusations of war crimes, crimes against humanity, and genocide by government forces and affiliated militia groups, the situation in Darfur, Sudan, attracted international attention. When the ICC became involved in 2005, it issued arrest warrants for Omar al-Bashir, the president of Sudan, and other others. A critical step towards holding authorities accountable for mass atrocities was the ICC’s participation in Darfur. The ICC’s investigations illuminated the serious crimes committed in Darfur, highlighting the significance of holding people accountable despite difficulties in carrying out the arrest warrants. The UN was vital in assisting with the inquiries and cases pertaining to the circumstances in Darfur. By referring the case to the ICC, the UN Security Council demonstrated how cooperatively nations work to solve major atrocities. However, because the issue was politically sensitive, difficulties were encountered when executing the arrest warrants. The Darfur case presented obstacles such as political opposition from the Sudanese government and challenges in carrying out arrest order execution. The International Criminal Court (ICC) was criticised for what was seen as its incapacity to carry out arrest orders against senior government officials, underscoring the difficulties in holding leaders responsible when they oppose international justice processes.
2. Thomas Lubanga’s Trial: The Democratic Republic of the Congo militia commander was accused of enlisting minors as troops. The case brought to light the crimes against humanity and war crimes associated with the deployment of young soldiers. Thomas Lubanga’s trial served as a symbol of the ICC’s determination to bring cases against those responsible for crimes against children during armed conflict. Setting a precedent for holding leaders responsible for enlisting and utilising child soldiers aided in the global campaign to end this horrible practice. The UN assisted the ICC in Thomas Lubanga’s case by offering security and logistical support for the trial. This partnership demonstrated how crucial it is for the UN and other international organisations to work together to prosecute people for grave international crimes successfully. There were issues with cooperation and witness protection during the Thomas Lubanga trial. These difficulties highlighted the difficulties in trying people for crimes committed in war areas. Protecting witnesses and getting their cooperation is essential in international criminal proceedings.

Conclusion

The International Criminal Court (ICC) has repeatedly demonstrated to be a ray of hope for victims of crimes against humanity, genocide, and war crimes over its whole history. The International Criminal Court (ICC) was founded to eradicate impunity and has been instrumental in prosecuting those accountable for the most serious transnational crimes. Its responsibility to look into, prosecute, and decide cases has helped to shape international criminal law and create a system of accountability for those who transgress human rights. The ICC has established precedents for holding offenders accountable worldwide, highlighted the suffering of victims, and upheld the value of human rights through its cases and rulings. The United Nations has contributed significantly and in many ways to the ICC’s efforts. The UN has played a crucial role in giving the ICC the structure and support it needs to pursue justice through referrals, resolutions, cooperation agreements, and diplomatic measures. Despite some difficulties, the Security Council’s case referrals to the ICC have given the Court the authority to deal with issues that could not have otherwise been resolved. Beyond particular cases, the UN and the ICC collaborate on capacity-building, logistical assistance, and diplomatic advocacy. The UN’s dedication to upholding international justice has strengthened the ICC’s legitimacy and given it the support it needs to meet its mandate and negotiate geopolitical obstacles. From an international justice and cooperation perspective, what matters most is how thriving organisations such as the UN and the ICC can adjust, change, and promote a cooperative culture. Overcoming current obstacles depends on ICC reforms, which include eliminating jurisdictional restrictions, boosting independence, and bolstering collaboration with non-member governments.

References

1. This article was originally written by Claire Klobucista and Mariel Ferragamo published on Council on Foreign Relations. The link for the same is herein. https://www.cfr.org/backgrounder/role-international-criminal-court 
2. This article was originally written by  Rowman and Littlefield published on Practical guide to Humanitarian Law. The link for the same is herein. https://guide-humanitarian-law.org/content/article/3/international-criminal-court-icc/ 
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