2022 marks twenty years of the Rome Statute of the International Criminal Court. On July 1, 2022, the statute came into force with signatories from all corners of the globe, with a vision of international legal order and to fight impunity. It became the first permanent court of criminal jurisdiction to prosecute crimes of genocide, crimes against humanity, war crimes and the crime of aggression. The role of the ICC in the development of International Criminal Law must be applauded, especially in the area of sexual and gender-based crimes, recruitment and use of children in armed conflict and destruction of cultural property. The limited jurisdiction of the ICC may still require States to investigate and prosecute international crimes primarily, but this has not resulted in the international community losing faith in the International Criminal Court. At the onset of the Russian aggression against Ukraine, all eyes were on the ICC and the role it would play in this armed conflict.
However, it is also important to note that the ICC has garnered its fair share of criticism. The ICC is infamous for procedural and administrative delays, with few prosecutions all arising from African nations. However, in the case of Ukraine, the ICC has managed to be on top of the game. The ICC has been actively involved in investigating the war crimes in Ukraine since the beginning of the armed conflict. However, is the ICC powerful enough to prosecute one of the most controversial figures of 21st-century politics? Or is the ICC riding on the glory of its prosecutions in nations which cannot retaliate? At the end of twenty years, one can only hope the former is a reality.
The Commendation
The role of the ICC in establishing the Rule of Law can be traced to the court’s jurisprudence, especially in the area of sexual and gender violence. The Rome Statutes codifies the most progressive and broadest sexual violence crimes in the history of international criminal law. The ICC adopted the SGBC policy that defined how sexual and gender-based crimes are tried in the International Courts, making it the only court to adopt a policy exclusively to determine the impact of crimes on gender and sexuality. Gender analysis allows for a gender-sensitive and victim-centred approach to investigation and case proceedings. The conformation of SGBC in the Bemba case in 2016 and further in Ntaganda in 2017 (in case of war crimes of rape and sexual slavery of child soldiers) has formulated the jurisprudence in this regard. The legacy of the Office of the Prosecutor, especially that of Fatou Bensouda, in this regard is note-worthy
The active involvement of the ICC in investigating the Ukraine war is also a favorable turn and demonstrates the growth of the court as it completes 20 years. From being toothless with complimentary jurisdiction, the ICC now aim to go after the big players. While there is little evidence to support how this would conclude, the Prosecutor almost immediately launched an investigation into the matter. The unprecedented joint referral of the situation to the ICC by 43 state parties to the Rome Statute removed the significant procedural hurdles to the investigation. While neither Russia nor Ukraine is a party to the Rome Statute, Ukraine had accepted adhoc territorial jurisdiction during previous conflicts, such as the invasion and occupation of Crimea. However, Russia’s hostility towards the International Criminal Court and International Criminal Law, in general, would impede the progress of the investigations, with evidence collection and witness testimonies being a scarcity owing to Russian intervention. Meanwhile, the OTP has also faced substantial financial and resource constraints amidst its investigation in Ukraine.
The Controversy
Amongst all of its contributions to International Criminal Law jurisprudence, the ICC is one of the most criticized international courts in modern history. While most criticisms in the early 2000s were based on low conviction rates and lack of enforcement mechanisms and resources, the newer controversies surrounding the court are rooted in developed nations not getting their way around international law. While the jurisdiction of the court is based on complimentary, the ICC has found ways to prosecute non-members (Afghanistan, against the objection of the United States), to the dismay of many. Many states (especially non-members) view this as a desperate attempt to get redemption from the claims of serving colonial justice to African nations. Another criticism of the ICC is the undue leverage on the prosecutor in deciding whether or not to initiate an investigation in cases it has investigated. This cuts out the role of prominent bodies such as the UN Security Council. While this is often criticized, the criticism comes from nations that suddenly have lost their veto and have to face justice like every other nation-state.
The Future
Irrespective of its progress, the future of the ICC is heavily dependent on its signatories and increasing parties to the statutes. While the Office of the Prosecutor has exercised ‘extraordinary’ jurisdiction in recent years, it has faced grave criticism, and the countries that push for punishing Russian impunity will for certain not welcome the ICC to its territory. However, how do you convince nation-states to join the ICC when many ‘developed nations’ are strongly advocating against it? The key job here would be to change the narrative that the ICC is infringing on the sovereignty of nation-states. Most states abstained from ratifying the convention due to the fear of politically motivated cases and infringement on their sovereignty. However, interestingly most States support ICC’s investigation against war criminals, as long as they are not from their nation-state. Support for ICC can only be garnered if we stop viewing the ICC as a prosecuting mechanism alone. Indeed, its primary function is to prosecute war criminals, but in recent years the ICC has taken the lead in creating accountability in the international law arena. Accountability can break the cycle of impunity and r conflict, and respect for the International Criminal Court is respect for rule of law. The jurisprudence of the ICC has created solid law, and soon critics of the court will have to rely on it in light of customary international law and Opinio Juris. Countries opposing the ICC, therefore, are at risk of hurting their own credibility as well as losing out on the opportunity to reform the court. The ICC seems to be steady and strong, negating and answering criticisms coming its way, and it’s time the international community follow suit.
References
Statement of the Prosecutor, Fatou Bensouda, on the conclusion of the preliminary examination in the situation in Ukraine, ICC OTP (Dec. 11, 2020) https://www.icc-cpi.int/Pages/item.aspx?name=201211-otp-statement-ukraine; Fatou Bensouda, “Without Fear or Favour”: Reflections on my term as Prosecutor of the International
https://www.coalitionfortheicc.org/fight/strong-icc/sexual-and-gender-based-crimeshttps://law.stanford.edu/publications/the-american-servicemembers-protection-act-pathways-to-and-constraints-on-u-s-cooperation-with-the-international-criminal-court/
By The European Institute for International Law and International Relations.
