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Crisis in the International Criminal Court

This article looks at the deep crisis in the International Criminal Court. From a rocky start, after just existence of 18 years, the cracks in the ICC are increasing day by day, with its legitimacy and authority being questioned and challenged by some of the most powerful states in the world.

By: Arnav Sharma, 2nd year, B.B.A. LL.B, Jindal Global Law School.

Based on the Rome Statute of 1998, the International Criminal Court (ICC) is a permanent ‘International Tribunal/ Court’ that seeks to prosecute individuals for the crimes of Genocide, War Crimes, Crimes against Humanity and Aggression. Having started its operations in 2002, and with 123 member states, the ICC has recently been going through a crisis; the criticism against it has never been this stronger, nor has it faced so many accusations of bias, and being called irrelevant, which brings into question: is the ICC required. After analyzing the data, statutes, laws and the views of practitioners and academia, I recommend making changes to the ICC to make it more inclusive, accountable, transparent and less biased. 

This paper looks at (I) brief history of the ICC (II) Beginning of the crisis and Criticisms of the ICC (III) Concluding remarks. 

(I)

Historically, many mass atrocities and grave crimes have been conducted by men with impunity. Be it Chengis Khan, Timur the Lame, Vlad the Impaler or Ivan the Terrible, numerous such men killed, raped, maimed, and tortured millions of people throughout the world.

After the Industrial Revolution, with the advent of technological advancements, and the Enlightenment period, with freedom, liberty and equality being the buzzword, and with the end of feudalism and monarchy, and the subsequent rise of Capitalism and the Democratic Republic states around the world, it was thought that maybe such atrocities were a thing of the past. World War I shook this reality.

The calls to establish an international forum where political leaders accused of committing grave crimes could be tried and punished first arose in the Paris Peace Conference of 1919. The Second World War, the deadliest conflict in human history, saw the setting up of two ad hoc tribunals to prosecute Axis leaders for war crimes. The International Military Tribunal in Nuremberg, and the International Military Tribunal for the Far East in Tokyo. The General Assembly of the United Nations requested the International Law Commission to draft statutes that could establish a similar permanent court, and the ILC came up with two statutes, but they were shelved as the entire world was facing the rampant rise of the Cold War. After the Yugoslavian wars, and the Rwandan Genocide, the International Criminal Tribunal for the former Yugoslavia was formed, to prosecute the large-scale atrocities, ethnic and racial cleansing by the armed forces during the wars. Similarly, the International Criminal Tribunal for Rwanda was set up following the Rwandan Genocide. The creation of these tribunals strengthened the calls for a permanent solution to this issue. 

The ILC presented a final draft statute in 1994, and a special conference of the General Assembly was held in June 1998, to negotiate and finalize the treaty that would serve as the court’s statute. The Rome Statute of the International Criminal Court was adopted by a vote of 120 to 7, with 21 abstentions. 

After 60 countries ratified the Rome Statute, the ICC began its operation on 1st July 2002, with its headquarters in The Hague, the Netherlands. It has 123 member nations and does not enjoy a universal jurisdiction, but the only jurisdiction over member countries. 

(II)

It is not that the opposition against the ICC is new but has been since it’s very inception. Only 123 countries are members of the ICC. Almost 70 countries, including the superpower United States, Russia, India, China, Israel, and the Philippines with many more nations have attempted to or have left the ICC. The ICC has been repeatedly called out for its hypocrisy, anti-Semitic, anti-African bias. An overwhelming majority of investigations and convictions by the ICC have been in the African continent, while many crimes have been committed with impunity around the world which the ICC claims to prosecute. The ICC is accused of having an anti-Semitic and anti-Israel stance since it’s very inception. The United States has repeatedly said that the ICC looks at the Israeli-Palestinian issue from a biased lens. Similarly, is what is alleged by African leaders and politicians, who have said that the ICC exists only to ‘harass small and weak nations’, while completely ignoring what the rich and powerful countries are doing.

The ICC has long been condemned for not taking any action against the United States for its actions in the Middle East, especially in the Iraqi invasions, where multiple US forces personnel and the Central Investigation Agency (CIA) have been accused of killing innocent people, raping women and destroying their properties.

Similarly, other European countries such as the UK, Germany and France’s, and Australia’s armed forces deployed abroad have been accused of committing war crimes, but the ICC has kept mum over such issues. This has further raised questions over its credibility and claims of impartiality. 

But the real crisis began in 2017, when an investigation by eight international media groups of the European Investigative Collaboration found bombshell evidence after analyzing 40,000+ confidential documents of the ICC, finding the open bias and political games in the ICC. Evidence showed that the former and First Prosecutor of the ICC, Luis Moreno Ocampo (2003-2012), along with the ICC tried to detain Cote d’Ivoire’s ex-President Laurent Gbagbo, without having an arrest warrant and before even preliminary investigation. French intelligence documents showed that the same was being done by the ICC and Ocampo in confluence with the new President of Cote d’Ivoire, who wanted political revenge and snatch the control from Gbagbo. Further documents proved that Ocampo and the ICC knew they had no judicial basis and lacked serious evidence to prove that Gbagbo had indeed committed, crimes against humanity, but they still did the same. 

Another explosive finding was of Libya. Ocampo had issued an arrest warrant in 2011 against Muammar Gaddafi, the longest-serving and brutal dictator of Libya, but could not follow through because he was killed later that year. After stepping down from the role of the Prosecutor of the ICC, he worked in a private American law firm, Justice First. One of Justice First’s client was Hassan Taranaki, a very wealthy and powerful Libyan business, once a close friend of Gaddafi, and now an ally of General Haftar Khalifa, the most powerful man and de-facto ruler of Libya. When Ocampo found out that his successor, the new ICC Prosecutor, Fatou Bensouda, planned on prosecuting General Khalifa, he not only worked to protect General Khalifa but also helped the ICC prosecutor to indict Khalifa’s enemies. For this, he received more than $7 Million from a foreign donor, suspected to be living in Qatar. 

EIC’s investigations also show how, after indicting Kenyan President Uhuru Kenyetta, for crimes against humanity in 2010, the ICC and its Prosecutor took a complete U-turn without any plausible explanation.

After leaving office as the Prosecutor, Ocampo began talking about offering Kenyetta ‘an honorable way out’. He then contacted his successor, Bensouda, and they both decided to ‘honourably acquit Kenyetta’. It is mind-blogging to think that the same man who convicted Kenyetta, just a few years ago, would want to let him off after leaving office. It was widely believed that the same was done to appease the United States, which saw Kenyetta as a key ally in the African region, and its fight against Al Shabab in Somalia. 

The EIC findings shredded whatever credibility the ICC had left. The US had never cooperated very much with the ICC, with President George Bush staunchly against it. The Obama administration saw some cooperation on some issues. In 2019, the Pre-Trial Chamber of the ICC refused to authorize an investigation into the alleged war crimes that have been committed by all the parties in Afghanistan since 2003. The Prosecutor had submitted a 20,000 plus page request, in 2017, however, the PTC held that the requested investigation ‘would not serve the interests of justice’. This decision had led to huge dismay and uproar around the world. While the United States, Israel and its allies celebrated this decision, many around the world understood that the ICC had succumbed to the intense pressure and bullying of Washington. However, when the ICC in 2020 did authorize an investigation, the United States began a belligerent, brutal and relentless attack on the ICC. Former NSA John Bolton used inflammatory rhetoric and called the ICC ‘illegitimate’, and President Donald Trump via an EO threatened to arrest ICC officials if ICC brought criminal charges against its personnel, and revoked the Visa of all ICC officials, including the Prosecutors. This has only deepened the credibility crisis the ICC is going through. The ICC is also plagued with cumbersome, lengthy and very slow trials and weak management. Many accused are still at large, including Sudan’s President Omar al-Bashir, and billions of dollars have been spent for just 3 convictions for core international cases. Also, Bashir and Cote d’Ivoire’s former President Laurent Gbagbo got acquitted upon appeal. This made ICC the subject of scorn and ridicule around the world. It also raised questions over the Prosecution’s ability to get convictions in high-profile cases. 

(III)

The challenges the ICC face are numerous and tough, but the ICC is here to stay.

The ICC is not solely to be blamed for that; the member states have not been very supportive of the ICC, and the resources have been limited.

With major powers of the world refusing to join and fund the ICC, and threats of more leaving, how these issues are solved, and the ICC regains its credibility, transparency and the closes in the gap between the unique vision captured in the Rome Statute, to what it is today, is to be seen. 

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