The International Criminal Court: An In-Depth Analysis
For decades, international law has attempted to build a satisfactory judicial apparatus to hold individuals responsible for the gravest crimes committed in the international community. In the twentieth century, after the Second World War, the will to punish international criminals and deliver justice to the victims began to spread globally. The International Criminal Court (ICC) was then established to prosecute heinous international offenses, where the domestic courts failed, by carrying out the prosecution of individuals. Although the ICC's priority is delivering peace, security, and justice, since its establishment, the organisation has had few successes, due to the limitations and obstacles it faces. After exploring the ICC's history, this article will analyse the ICC's functioning and structure, considering both its advantages and disadvantages. To conclude, some current and historic cases will be given as examples to analyse the organisation's priorities and limits by considering realism as school of thought.
The History of the International Criminal Court (ICC)
The ICC as a permanent and independent organisation based on the Rome Statute came into force on 1st July 2002, and originated from the post-WW2 military tribunals, which aimed to prosecute leading political figures of Nazi Germany.
Figure 1: ICC History - 1945 World War II (1945). Coalition for the International Criminal Court
The first attempt to institutionalize an international criminal court goes back to the first Hague Convention in 1899. Nevertheless, the project never came into effect, due to the states' refusal to surrender a part of their sovereignty to an external institution (Aksar, 2004). After WWI and WWII, the idea of creating an international court to prosecute individuals for crimes against international humanitarian law was embraced again. In 1945, the Nuremberg and the Tokyo War Crimes Trials were held by the Allies; subjects of the trials were Nazi leaders who participated in the Holocaust and Japanese political leaders who committed war crimes such as the Nanjing Massacre (Kasahara, 2015). However, neither could be approved because the Allies were also responsible for several outrageous international crimes, such as the Katyn Forest Massacre, the Allied death camps, and the ethnic cleansing of Germany and Eastern Europe (Aksar, 2004; Becker, 2013). Even so, the Nuremberg trials were the first to decide to prosecute any person under the international law, and as Hurd (2020) asserts, this new legislation was "undoubtedly revolutionary" at the time, considering that no relation between individuals and international law existed before Nuremberg. Nonetheless, after the eruption of conflicts in the former Yugoslavia and Rwanda in 1993 and 1994 respectively, the will to formalize an international criminal court and institute an international law became more urgent (Fehl, 2004).
Figure 2: Rome Conference – 1998. Adoption of the Rome Statute – 17 July 1998 (1998) Coalition for the International Criminal Court
Hence, in 1998, the UN Congress reunited in Rome to sign a multilateral treaty known as the Rome Statute, which only came into effect in 2002 (Fehl, 2004) because, as Schabas (2001) explains, the Statute required at least sixty accessions and ratifications to become official. In the present day, 123 signatories are required, and are known as the "states parties" of the Court.
The Structure and Decision-Making Process of the International Criminal Court
To understand how the organisation functions, it is crucial to investigate its institutional structure and decision-making process.
The International Criminal Court comprises four organs:
the Presidency,
the Chambers,
the Office of the Prosecutor,
the Registry.
The Court, partitioned into three Divisions, is made up of eighteen judges from distinct countries nominated by the member states, whereas a small number of judges from their respective Divisions (Pre-Trial Division, Trial Division and Appeal Division) constitute the Chambers. The president and the two vice-presidents elected among the judges are the authorities who hold judicial and administrative responsibilities and constitute the Presidency (International Criminal Court, 2013). Finally, the Registry is the organ that deals with the defense of victims and witnesses, while the Office of the Prosecutor receives referrals and case information. All the organs work together to prioritize world peace by condemning individuals for the international crimes of genocide, crimes against humanity, crimes of aggression, and war crimes (International Criminal Court, 2013).
The investigation process is divided into three main steps: the referrals, the analysis, and the investigation itself. After discussing the case and analysing crime allegations, the Office of the Prosecutor (OTP) decides whether to open an investigation or not (Pal, 2020). If the crime is particularly grave, the Prosecutor sends inspectors to gather information, and the eighteen judges (judiciary) of the Court must first accept the offender's capture. Finally, the Pre-Trial Chamber (PTC) decides on whether a trial should stand or not (Pal, 2020). Aside from constituting an excellent example of the importance of the role of Pre-Trial judges' in the confirmation or rejection of charges, and underpinning the organisation's functioning, Bahar Idriss Abu Garda's case illustrates how the opening of investigations is also dependent on the UN Security Council.
Figure 3: Statement to the United Nations Security Council on the Situation in Darfur, pursuant to UNSCR 1593 (2005). International Criminal Court.
The UN Security Council, acting under the Rome Statute, referred in 2011 the situation in Libya through Resolution 1970, and, in 2005, the situation in Dafur, through the Resolution 1593, to the Office of the Prosecutor of the International Criminal Court (International Criminal Court, 2009). Following the Dafur referral, the Prosecutor analyzed the results of the International Commission of Inquiry on Darfur, collected material on the situation in Uganda through a variety of sources, and obtained several thousand documents. In 2005, based on this work, the Office found there was a sufficient legal basis for opening an investigation, and proceeded with an investigation that took place on 6 June that year. Consequently, in 2007, Abu Garda, a commander of the Sudanese rebel group during intra-state conflicts between rebels and the government, was charged with three war crimes after assaulting the African Union (AU) peacekeepers, under art. 8(2) of the Rome Statute (Reliefweb, 2010). After Abu Garda appeared before the Court in 2009, however, the PTC declined his charges, stating that his case lacked adequate proof to support his crimes, as well as refusing, in 2010, the OTP's request for a new investigation (Coalitionfortheicc.org, n.d.). Arguably, Abu Garda's case provides further evidence of the absence of efficiency in the functioning of the ICC, considering that the Pre-Trial Chamber explicitly showed its will to prioritise a quantitative rather than a qualitative valuation of a case (Rainò, 2016), by stating that there was not sufficient evidence. Conversely, the Office of the Prosecutor appeared to be predisposed to put the defendant on trial, providing in this way a clear example of internal disagreements among the ICC's organs. This article considers those disagreements to be one of the causes of ICC’s inefficiency, since they slow down the investigative processes.
How Does the ICC Function?
Figure 4: Parties and Signatories of the Rome Statue - green as state party, yellow as signatories not ratified, orange as signatories that withdrew their membership, purple as former state party, red as non state party (2024). Wikipedia.
There are two significant aspects of the ICC’s functioning that are worth highlighting: complementarity, and defining who is prosecutable. Accordingly, ICC’s complementarity, as claimed by Felter (2020), is the ICC's intention to "complement rather than replace national court", given the fact that it asserts its authority when a local court is not able to take actions. Marshall (2010) argues that complementarity is "positive", considering that it offers an indispensable tool to the member states to prevent atrocities and strengthen the local judicial system, and develop their capabilities to prosecute offenders and criminals (Jo and Simmons, 2016). However, complementarity exists for one main reason: namely, the rejection by the nation-states of the ICC's primary jurisdiction, considering that state parties want to maintain their sovereignty and the power of domestic courts (Ictj.org, 2010). On the one hand, Marshall states that complementarity is positive, for the above-mentioned reasons, but, on the other, it is possible to argue that it is in fact one of the ICC’s action limits, since the organisation is bounded to a restricted type and number of cases in which it can take measures.
One more particular characteristic of ICC's functioning is that not all individuals can be prosecuted, and so non-state parties cannot be condemned if they commit a crime in a member state's region. However, there are three means of opening investigation, including investigations against non-member states; an investigation can be conducted when a member nation reports a crime within its territory, when the Prosecutor decides to start an investigation on her or his initiative, or when the UN Security Council raises a case (Felter, 2020). An illustrative case study which sheds light on this process is the mass murder of the Uyghur people, a Muslim minority residing in north-western China, widely known as the Uyghur genocide.
The Case of the Uyghur People
Since 2014, the Chinese government has been facing significant international criticisms for alleged human rights abuses against the Uyghur population in the Xinjian Uyghur Autonomous Region (Baillie and Parkes, 2023; BBC, 2022). Human rights organisations, such as Amnesty International and Human Rights Watch, estimate that more than one million Uyghurs have been forcibly detained in facilities referred to by the Chinese government as "re-education camps" and "vocational training centers", and forced into imprisonment, entailing the deprivation of liberty, torture, and murder (Amnesty International, 2021; BBC, 2022; HRW, 2021). China has always denied all allegations of such crimes against humanity (Bailllie and Parkes, 2023; BBC, 2022; HRW, 2021).
Figure 5: The Uyghur minorities (2022). The Guardian.
At first glance, it seems that the ICC cannot step in and prosecute China, since Beijing is not one of the signatories to the Rome Statute treaty. However, those bringing the claim of genocide have underlined that the Uyghur minority is being forced to leave Cambodia and Tajikistan, both member states of the ICC, and enter China (Ochab, 2020). Regardless, according to the OTP, this extradition cannot be defined as deportation, even though it is classified by the Rome Statute of 2002, under article 7(1)(d), as a crime against humanity (Ochab, 2020). It is thus difficult for the organisation to open an investigation into the genocide, since the Uyghur massacre is not occurring in a member state's territory and the ICC has no territorial jurisdiction over this crime. On 14 December 2020, the OTP advocated its inability to undertake the case because there was not enough evidence to proceed with an investigation (Ochab, 2020). This case emphasises the argument laid out by Kersten (2016) that the process of decision-making is not wholly neutral, given the fact that states can decide what evidence of an ongoing crime (both direct and indirect evidence, including witnesses' and victims' claims, numerical data, etc.) they should provide to the OTP, and hence, this influences the outcome of a case investigation, as is happening with the Uyghurs' case. Therefore, as this article aims to highlight, State Parties are also one of the major causes of the ICC's limits and slow juridical procedures.
What are the ICC’s limits? The Complementarity, the Selectivity and the Partiality
In concordance with several researchers and analysts (see DeGuzman, 2012; Grigore, 2023; Amnesty International, 2024), in many cases, such as in Nigeria and Afghanistan, justice is delayed and crimes remain unpunished, or are subject to partiality due to the ICC's stock limits. As a result, according to Gegout (2013) and DeGuzman (2012), the ICC has several action thresholds. Firstly, the organisation encounters structural and political limitations, such as limited resources and being manipulated by states, which are the real actors in international relations, whereas the ICC is simply "instrumentalised" by them (Gegout, 2013). Secondly, DeGuzman (2012) argues that the ICC "lacks clear goals and priorities to justify its decisions", underlying whether the organisation and its prosecutor are inappropriately motivated by political considerations. The Prosecutor and the Court often struggle to determine which cases are sufficiently grave to be investigated; it is often declared that there is not enough evidence to sentence the attendant, such as happened with the Uyghurs genocide, or Abu Garda. Finally, according to DeGuzman (2012), the third limitation is the "selectivity" in prosecuting and delivering justice; based on the ICC's data, most of the previous and current investigations are taking place in the African continent.
Figure 6: The Selectivity of the ICC (n.a). The Habari Network.
Desmond Tutu, an ICC supporter, stated that the Court's investigations are active in Africa because three countries of the African Union directly referred the crimes against humanity taking place in their territories to the organisation, and not because of a prosecutorial prejudice (Lawteacher.net, 2019). Notwithstanding, since the creation of the ICC, the OTP has received around 1,900 queries for investigations from more than 150 countries (lawteacher.net, 2019), and so, conforming to Desmond Tutu's assertion, it is hard to believe that the most outrageous crimes happen all in one continent, bearing in mind that some of the most abominable crimes have taken place and persist in other countries, such as China, Syria, Israel, Argentina, and Colombia. The emphasis of the ICC's investigations in Africa has raised several concerns about the ICC's credibility, since the organisation seems to focus less on Western crimes, leading critics to consider the ICC a tool of Western or industrilized countries (Bensouda, 2014; Khan and Marwat, 2016). This has resulted in concerns that investigations are biased, since they are mostly concerned with situations in Africa, namely the Democratic Republic of the Congo, Sudan, Kenya, Libya, Uganda, the Central African Republic, Ivory Coast, and Mali (Bensouda, 2014).
Additionally, as Clark (2011) argues, the "selective justice" is related to the "partiality" of the organisation, which corresponds to the ICC’s inability to be wholly independent, meaning that it is limited in its ability to achieve its priorities. For example, in the case of Syria, which is not a state party of the Statute, the only way to intervene would be to bring in the UN Security Council. Regardless, the fundamental problem would persist, since five major permanent powers hold the power to veto the ICC's actions anywhere, and at any time. Russia, a leading state in the Syrian conflict and supporter of Assad, has used its right of veto to pursue personal interests, depriving the ICC of the possibility to interfere in the Syrian conflict (Cantone, 2018). Thus, this case is the example par excellence of the ICC's powerlessness to behave as a major player, as it remains an instrument in the hands of states, highlighting, consequently, its inability to act with impartiality (Cantone, 2018). As a result, Syria still finds itself in a state of civil war, and the citizens, whose safety should have been the priority of the ICC, are the first to suffer due to the lack of the organisation's effectiveness.
Nonetheless, it is paramount to underline that investigations into African situations have been opened with the support of African states and were, thus, self-referred, whereas two of them were, as stated above, referred by the UN Security Council (Bensouda, 2014). Furthermore, most of the crimes taking place in Western or industrialized countries do not fall within the ICC's jurisdiction which is limited, for example, to crimes committed after July 2002 by a State Party, or in the territory of a member state, and to war crimes, crimes against humanity, genocide, and aggression (Bensouda, 2014).
Figure 7: Judicial Division (n.a). International Criminal Court
Furthermore, many commentators have expressed their negative opinions about the costs and delays associated with the ICC's interventions (Barnett, 2008). Delays can allow the suspects to find ways to evade the court, even if the prosecution has already started. Despite the regularity with which the pretrial stage proceeds, the ICC has yet to complete several trials, such as the cases of Al Bashir, Banda, Barasa, and Ghaly (see the International Criminal Court), raising doubts about its effective functioning (Barnett, 2008). In agreement with the Expediting Proceedings at the International Criminal Court (2011), it is possible to solve these slow procedures by taking a different procedural approach and adopting diverse interpretations of the Rome Statute regulations. The latter solution may be suitable to solve the Uyghurs genocide, considering that the OTP underlined that the Uyghurs' extradition is not considered to be intentional deportation in the art. 7 of the Statute. By adopting a different approach towards the article, the OTP would have the potential to intervene in China and achieve the main ICC's priority, namely, security and peace for individuals.
Hence, in 2015, the president and the OTP declared that ICC's top priority would be the achievement of the Court's efficiency and effectiveness (International Criminal Court, 2015). Since that date, however, neither of these things has been accomplished, as proven by the above analysis. As Wilmshurst argues (2019), the ICC's efficiency depends on the cooperation of the member states; thus, if the ICC can enhance its cooperation with member states and stop being an instrument, it can achieve both efficiency and effectiveness in criminal proceedings and guarantee a court that delivers impartial justice. This can be achieved by taking a broader approach to prevent crimes, and by cooperating more tightly with domestic courts, avoiding the deterioration of its integrity.
What political approach can describe the ICC?
Although the ICC has underlined that its main aim as being the punishing of people who threaten global peace and take away people’s dignities and freedoms that are inalienable rights, the realist perspective flawlessly explains why the ICC in not able to fully and successfully achieve its prime objectives.
Figure 8: The Realistic Approach (n.a). E-International Relations.
Antunes and Camisão (2018) state that nation-states are the "principal actor" in international relations from the realist perspective, whereas all the other bodies possess limited powers. Major players behave as self-interested power-seekers, wishing to boost or conserve their global influence, while institutions play a circumscribed role since they cannot act autonomously, but their decisions reflect their nation's interests. As shown by the above analysis, political actors have an evident influence over the functioning of the ICC, with the institution being considered biased by the majority of critics, such as Gegout (2013). Moreover, Clark (2011) asserts that, according to the realist theory, states' interests are the main obstacle to achieving IO's efficiency and effectiveness. The ICC's independence has always been undermined by endeavours to hegemonize its operations. Nation-states employ the organisation for their own political intentions, resulting in the Court concentrating its efforts on the side of the conflicts that better accommodates their interests (Gegout, 2013). States collaborate with the organisation for the purpose of self-interest, because they fear losing their sovereignty (Huikuri, 2019). Thereby, according to Phooko (2011), under a realistic point of view, the ICC's limits are its independence of action and being a pawn in the players' hands. As analysed through the realist perspective, the ICC's working is limited by its selectivity, lack of clarity in aims, and delays, factors that are strongly related to its dependence on states, meaning that the Court cannot reach entirely successful results.
Conclusion
The ICC is an independent institution whose priority is to guarantee security and to deliver justice to the international community. The organisation prosecutes four major crimes: war crimes, crimes against humanity, crimes of genocide, and crimes of aggression. However, the ICC’s functioning is dictated by its complementarity, which is the will to complement rather than substitute national courts and which renders the organisation not as efficient as it should be. Three international cases have been used in this article to prove the organisation’s ineffectiveness and partiality, which lead to its lack of success. Moreover, some critics have argued that the ICC is costly and that processes take too long. According to realism, the International Criminal Court cannot act independently, and, consequently, it is instrumentalized by states aiming to achieve their own national interests, above all else. Although the cooperation between the organisation and the nations is also an obstacle to successful outcomes, this article aims to make a few recommendations for strengthening this collaboration between nations and organisations, in an attempt to transform the ICC into an actor in international relations, as opposed to merely an instrument. In this way, cooperation would make the Court more effective, cost-efficient, and broadly accepted.
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