International Criminal Court (ICC)

The pursuit of an enforceable system of justice and law in the international system was a major goal for many nations during the twentieth century, although the concept of jus gentium (law of nations) is classical in origin. The philosophical foundations of the modern system of international law date back to thinkers such as Hugo Grotius and others, who are considered the progenitors. Theoretical schools of international law include positivism, realism, liberalism and natural law. American Civil Law and English Common Law are two Western legal systems, which are dominant. The International Criminal Court (ICC) emerged from the historical pursuit of an international legal regime.

Brief History

The International Criminal Court was created on July 17, 1998. The governments of one hundred and twenty nations adopted the Rome Statute, which is the legal foundation of its existence. The ICC is the embodiment of the ideals and aspirations for the creation of an intentional system of justice capable of dealing with type of high crimes against humanity defined by consensus among nation-states in the international community. Such crimes include genocide, war crimes, and other heinous violations of human rights. The mission of the court is a continuance of the Nuremberg and Tokyo trial systems that convened after World War II (1939–45) to adjudicate those responsible for the atrocities committed during the war.

The court is the first permanent, treaty based international criminal court, recognized by the majority of nation-states in the international system. It is entrusted with the power and authority to prosecute those responsible for the most heinous crimes, acts of aggression, and acts against humanity in the international system. It is the first and only court of its kind, and it is completely independent of the United Nations or any other regional or international institutional construct. It is funded solely by states and receives voluntary contributions from interested parties.

The ICC emerged after the collapse of Soviet Union and the end of the Cold War—an era of great uncertainty and insecurity. The implosion and collapse of the governments and nation-states of Somalia and Yugoslavia, and later the Rwandan genocide, during the 1990s, resulted in a level of international consensus that those responsible should face prosecution and be held accountable.

The structure of the court includes four major components: the presidency, the judicial divisions, office of the prosecutor, registry and other offices. The adjudicating organs responsible for ICC proceedings at different stages are the judicial divisions consisting of eighteen judges. The office of the prosecutor receives referrals and information on crimes and conducts the investigation and examination of allegations. The office is responsible for the prosecution of cases that go before court.

ICC Today

The ICC did not replace the International Court of Justice—the judicial arm of the United Nations (UN)—nor does it replace the criminal justice systems of individual nation-states. It requires the cooperation of the sovereign states and those recognizing its legitimacy and authority. It has a special working relationship with the United Nations and other nongovernmental organizations, and the recognition of nation-states in the international system. However, states may opt out of the court’s jurisdiction, therefore exempting their nationals from prosecution. The United States, Israel, and Sudan opted out of the court’s jurisdiction by not signing the Rome statute.

The UN Security Council has the ability to refer cases to the ICC. In 2005, the Security Council referred the situation in Darfur, and in 2011 the crimes of former Libyan president Muammar al-Qaddafi , his son, and brother-in-law to the court. In the summer of 2005 the court’s first arrest warrants were delivered and initiated the first hearings in 2006. The court tried and ruled against its first defendant, the Congolese rebel leader Thomas Lubanga Dyilo, on charges related to war crimes and the use of child soldiers. In 2015 Lubanga and two other defendants were convicted and sentenced to fourteen and twelve years in prison, respectively, for crimes committed in the Democratic Republic of the Congo (DRC).

The Court’s cases and investigations have involved allegations and reports of crimes in the DRC, Uganda, Central African Republic, Darfur, Sudan, Kenya, Libya, Cote D’Ivoire, Mali, Afghanistan, Colombia, Georgia, Guinea, Honduras, Iraq, Nigeria, Palestine, and Ukraine. The disproportionate number of cases involving African leaders, however, has prompted much criticism and the controversy has raised questions about the motivations of the court in pursuing international justice.

Critics have questioned the effectiveness of the court, pointing to the targeting of leaders from marginal nation-states while the actions of leaders from the powerful nation-states, such as the nonparticipating United States and Israel, remain unaddressed. As a result, discussions among a significant number of African state parties have threatened withdrawal from the Court. In 2013 the African Union (AU) held a special summit on the issue. Jacob Zuma, president of South Africa at that time, was instrumental in calling for the special AU summit. The ICC responded to the concerns and charges of the AU by agreeing to discuss amendments to the Rome Statute.

Throughout the 2010s and 2020s the ICC faced ongoing criticism over its effectiveness and reach, with many developing nations continuing to accuse the ICC of being a neocolonialist institution. In March 2023, over one year after Russia invaded Ukraine, the ICC issued arrest warrants for Vladimir Putin, the president of Russia, and Maria Alekseyevna Lvova-Belova, Putin's commissioner for children's rights. After reviewing evidence that Russia had kidnapped Ukrainian children, the ICC determined that Putin, with Lvova-Belova's involvement, had enacted laws making it easier for Russian families to adopt these abducted children. However, since Russia did not recognize the authority of the ICC, the warrant was unlikely to be served at that time, a fact which highlighted the limits of the ICC's effectiveness in countries where it lacked jurisdiction.

Despite its limitations, the ICC is, for some in the international community, the "last hope" for those seeking justice for serious crimes of concern to the international community because it has power to intervene when other efforts to prosecute responsible parties are ineffective.

Bibliography

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