From Idealism to Reality: The Current Challenges Facing the International Criminal Court
On March 17, 2023, the International Criminal Court (ICC) made headlines with its announcement of issuing arrest warrants for Russian President Vladimir Putin and the Russian Children’s Ombudsman, Maria Lvova-Belova, for alleged war crimes committed in Ukraine. This decision has put the ICC back into the international spotlight, reopening discussions on the role and significance of the ICC in the international system.
This essay aims to explore some of the most relevant achievements and challenges of the ICC in the context of the ICC’s ongoing efforts to ensure accountability for international crimes. The idea that state actors could be held individually accountable for violations of international criminal law before international courts was first established in 1945, when the International Military Tribunal in Nurnberg trials was established (and soon followed by the International Military Tribunal for the Far East in Tokyo trials in 1946) to punish those responsible for atrocities during WWII. Afterwards, the UN attempted to universally implement the principles established during the trials, but the efforts were thwarted by the Cold War.
When the Cold War ended in the 1990s, the international community was confronted with genocides in Rwanda and Yugoslavia. Ad hoc international criminal tribunals for Yugoslavia (ICTY) and Rwanda (ICTR) were formed to hold these responsible for accountability. The establishment of these courts was widely considered a legacy of the Nuremberg and Tokyo trials. The Rome Statute, which established a permanent International Criminal Court (ICC), was eventually agreed to in 1998 and was intended to be the only permanent international court with universal jurisdiction to investigate and prosecute individuals accused of committing the most serious crimes of concern to the international community, namely genocide, crimes against humanity, war crimes, and the crime of aggression.
Since its establishment in 2002, the International Criminal Court has succeeded in the conviction of ten people. The convicted individuals include a former Congolese militia leader Thomas Lubanga who was convicted of enlisting and conscripting child soldiers in the Democratic Republic of Congo between 2002 and 2003, a former Lord’s Resistance Army commander Dominic Ongwen convicted of war crimes and crimes against humanity for his role in the crimes in Uganda as well as Ahmad Al Faqi Al Mahdi for crimes convicted in Mali. These convictions have contributed to the shifting perceptions of impunity for international crimes. The creation of the Court and its prosecutions have conveyed a message to state officials that they may face consequences for their conduct. The second important achievement of the ICC is its contribution to the establishment of major legal precedents in international criminal law, including the definition of crimes such as forced marriage, the deployment of child soldiers, and sexual abuse as a weapon of war. For example, the ICC cases addressing rape as a weapon of war include the convictions of Thomas Lubanga and Germain Katanga for the use of child soldiers and sexual abuse committed by their troops in the Democratic Republic of the Congo. Furthermore, the ICC is investigating and prosecuting cases involving sexual violence committed during conflicts in countries such as the Central African Republic, Darfur and Mali.
Whilst acknowledging the ICC’s notable achievements and their significant contributions to international justice, it cannot be overlooked that the Court has been facing numerous challenges ever since its establishment. The biggest challenge is the lack of universal jurisdiction. As already mentioned, the ICC’s jurisdiction is limited to the crimes of genocide, crimes against humanity, war crimes, and crimes of aggression, which are defined by the Rome Statute. Moreover, the Court can only exercise jurisdiction over these crimes if they were committed on the territory of a state party, by a national of a state party, or in a situation referred to the Court by the United Nations Security Council. The Rome Statute has been ratified by 123 states. However, the United States, China, Russia, and India are among the noteworthy states that have not ratified the Rome Statute. Taking into consideration that the US, China and Russia are permanent members of the Security Council and possess veto rights, it is practically impossible for the Security Council to refer the crimes committed on their territories to the ICC.
The next important challenge is the dependence of the Court on its member states. The ICC relies on state cooperation to apprehend suspects, acquire evidence, and implement penalties. However, some countries, such as Sudan and the Democratic Republic of the Congo, have refused to work with the ICC, raising points of political concerns or lack of competencies of the Court which makes it difficult for the Court to prosecute suspects. Especially some African countries have accused the International Criminal Court of disproportionally targeting African countries. Following this criticism, Burundi, Gambia and South Africa notified their intention to withdraw from the ICC in 2016, pointing among other things the ICC’s bias against African countries. Although South Africa and Gambia rejoined the ICC, the withdrawal decisions have affected the Court’s credibility. The ICC arrest warrant against Vladimir Putin perfectly illustrates the described limits of the ICC. The warrant was issued in connection with the forced deportation of children from Ukraine to Russia by Russia’s president, Vladimir Putin, as well as for Russia’s commissioner for children’s rights. Under the Rome Statute, population expulsion is considered a crime. It is important to notice that Russia was a signatory to the Rome Statute (however it never ratified it) but withdrew in 2016 after the ICC’s Office of the Prosecutor issued a report on Russia’s annexation of Crimea in 2014. Although Ukraine is not a signatory, it has granted the ICC power to investigate war crimes committed on its territory. Although Vladimir Putin is unlikely to surrender to the court’s jurisdiction anytime soon because Russia does not recognize the court and does not extradite its citizens, the warrant is a clear signal to Russian officials that the crimes they commit in Ukraine can be prosecuted in the future.
It is important to remember that Russia is not the only power that does not recognise the ICC’s jurisdiction. Not only has the United States refused to ratify the Rome Statute, but it has also taken other steps to limit the Court’s authority. The American Service-Members’ Protection Act (also known as the Hague Invasion Act) was passed by the United States in 2002, authorizing the use of force, if necessary, to free US citizens or military personnel who are detained by the ICC. It also prohibits US government agencies and officials from cooperating with the ICC in any way that would facilitate the Court’s investigations or prosecutions of US citizens. Moreover, the George W. Bush administration pushed nations all over the world to sign bilateral treaties obliging them not to hand over US citizens to the ICC. However, the situation has evolved to a more supportive US attitude at the beginning of 2005 when the US did not block a UN Security Council request to the ICC prosecutor to investigate atrocities in Darfur, Sudan, and in 2011, when it voted in favour of referring the situation in Libya to the Court. The US attitude towards the Court changed again when Donald Trump became the US president and issued an executive order in June 2020, authorizing the imposition of financial sanctions and travel bans on International Criminal Court (ICC) officials and members of their families. Trump’s Executive Order had authorized economic sanctions and visa restrictions against ICC officials involved in investigations of US personnel and allies for alleged war crimes in Afghanistan, including sanctions on Fatou Bensouda, the ICC’s former head prosecutor, and Phakiso Mochochoko, the Office of the Prosecutor’s Head of the Jurisdiction, Complementarity, and Cooperation Division. The sanctions were lifted as a result of President Biden’s revocation in April 2021 (Douglas 2021: 477).
However, Secretary of State Anthony Blinken emphasized that the United States continues ‘to disagree strongly with the ICC’s actions relating to Afghanistan and Palestinian situations’ and reasserted the United States ‘longstanding objection to the Court’s efforts to assert jurisdiction over personnel of non-State Parties such as the United States and Israel’. (Douglas 2021: 478). The main argument of the US government against the ICC is concern that the Court’s jurisdiction could be used for politically motivated prosecutions of US citizens, which can hinder the effective operation of the US government The US also raises an argument of the possibility of the violation of the principle of state sovereignty if the ICC is allowed to investigate non-party states.
It is important to notice that the Rome Statute has several protections to avoid politically motivated proceedings. One of them is the rule that unless a state or the UN Security Council refers a case, the ICC prosecutor cannot initiate an inquiry on their own. Permission from a pre-trial panel of three judges is needed. What is more, before trial, the prosecutor must apply to the court’s judges for arrest warrants. In conclusion, the ICC faces numerous challenges in its efforts to achieve international justice and responsibility for the most serious crimes of international concern. One of the most significant obstacles is the refusal of key global powers like the United States, Russia and China to ratify the Rome Statute. This has resulted in a lack of collaboration and support from these states, and their unwillingness to participate in the ICC sends a message to the other states about their commitment to international justice and the rule of law. It also implies that they are unwilling to be held accountable for their activities. Finally, the ICC’s effectiveness in advancing international justice and accountability will be determined by its ability to manage the described challenges as well as maintain cooperation with states and other stakeholders dedicated to preserving the rule of law and defending human rights.
Bibliography:
Ashby H., Bailli L. Glantz M. (2023). „How the ICC’s Warrant for Putin Could Impact the Ukraine War” Available at: https://www.usip.org/publications/2023/03/how-iccs-warrant-putin-could-impact-ukraine-war.
Douglas, L. (2021) “The United States and the ICC,” Journal of International Criminal Justice [Preprint]. Available at: https://doi.org/10.1093/jicj/mqab052.
cases | International Criminal Court (2023). Available at: https://www.icc-cpi.int/cases.
Galvao Teles, P. (2017) ‘The ICC at the centre of an international criminal justice system: current challenges’, Janus.net, 8(1), pp. 61–73.
Human Rights Watch (2022) “Q&A: The International Criminal Court and the United States,” 8 February. Available at: https://www.hrw.org/news/2020/09/02/qa-international-criminal-court-and-united-states#5.
Author: Agata Bidas
