What States Think Is Wrong With The International Criminal Court

The recent announcement of withdrawals by South Africa and Gambia from the International Criminal Court (ICC) on 21st and 25th October 2016 respectively has revived the debate on the shortcomings of this organisation. The desire of the international community to establish a permanent international court to prosecute individuals charged with the commission of grave crimes got materialised in 1998. After a long negotiation process, Rome Statute which establishes ICC was finally adopted on 17th July 1998. The Court began its functioning on 1st July 2002 at The Hague and has the jurisdiction to investigate and try individuals charged with the commission of the crime of genocide, crime against humanity and war crimes. The ICC, which works complementary to the domestic jurisdictions, was formed with the determination to put an end to the impunity for the perpetrators of the most heinous crimes and to prevent these crimes in future. Despite having such profound objectives, the ICC, from its very inception, has been susceptible to severe criticisms. This write up is an attempt to highlight some of the major criticisms which the ICC has faced from the countries, as reflected in the Rome Conference negotiations in 1998 and the positions taken thereafter. These criticisms can be broadly categorised under three heads: (a) relating to the triggering of jurisdiction; (b) relating to the crimes and; and (c) relating to the working pattern of the ICC.

Triggering of Jurisdiction

According to the Rome Statute, the ICC may exercise its jurisdiction in the following situations- when the commission of the crimes is referred by a State party or; when the UN Security Council refers a matter or; when the ICC’s Prosecutor initiates an investigation. In addition to it, the ICC can exercise its jurisdiction only if “the State on the territory of which the conduct in question occurred” or “the State of which the person accused of the crime is a national”, is a party to the Rome Statute. Even the non state parties, i.e. countries who have not signed the Rome Statute can approach the ICC by lodging a declaration with the Registrar of the Court.

Some States apprehend that the ICC might be used against non-State parties for political reasons. Therefore, they argue that it should try an individual only when both, i.e. the State in whose territory the crime has occurred and the State having custody of the accused give their consent. States also object to the UN Security Council’s power to refer a situation of a State to the ICC, even when that State is not a signatory to the Rome Statute. Many States, including India, consider the UN Security Council’s power to refer, power to defer and the power to bind the non-signatory States to be undesirable. Interestingly and ironically, the majority of the permanent members of the UN Security Council have not joined the Rome Statute but by virtue of their membership, participate in the referral process. States also criticise the powers given to the Prosecutor and believe that it is inappropriate to empower an individual to initiate investigations. It is also argued that such a power puts the Prosecutor at par with states in referring a matter to the ICC. Some States, including India and China, also point out ‘principle of complementarity’ as one of the problems. According to this principle, the ICC acts as a court of last resort and exercises jurisdiction only when a State is ‘unwilling or unable’ to prosecute an accused. These States believe that the power of ICC to examine the inability or unwillingness of the domestic legal system violates State sovereignty.

Relating to crimes

The list of crimes over which the ICC has jurisdiction has also been a major bone of contention. Many States, including India, Pakistan, Algeria, China, Indonesia, Iraq, Libyan Arab Jamahiriya, Nepal, etc., opposed the ICC’s jurisdiction over crimes committed in non-international armed conflict. States, like China, also believe that the crime against humanity, which is often linked with human rights, might turn the ICC into a court addressing human rights issues. Therefore, China fears that the ICC could be used to interfere in its domestic affairs in the name of human rights violation. Furthermore, some States want the ICC to exercise jurisdiction over, inter alia, drug trafficking, terrorism and use of nuclear weapons. They question the inability of the ICC in not addressing the matters of such grave concern to the international community. Also, States, like China and USA, have raised objections to the inclusion of the crime of aggression within the jurisdiction of the ICC.

Relating to the working pattern of the ICC

Withdrawing from the ICC, Gambia alleged it to be biased against the African States and have remarked that the Court has consciously ignored the crimes of the Western Nations. According to Gambia's information minister Mr Sheriff Bojang, “the ICC, despite being called the International Criminal Court, is in fact an International Caucasian Court for the persecution and humiliation of people of colour, especially Africans." Noticeably, out of the ten situations under investigation by the ICC, nine are from the African nations. South Africa, on the other hand, believes that the Rome Statute compels it to act contrary to its other international law obligations, in particular, granting of diplomatic immunity to the head of the State. Some States have also registered their unhappiness about the dearth of African and Muslim judges at the ICC.

Moreover, too much emphasis on individual criminal responsibility is also seen as a camouflage to avoid focus from the responsibility of States. Central to any conflict is the deprivation of civil and political rights and economic, social and cultural rights, which falls under the domain of States and not individuals. Therefore, the ICC is an answer to a limited set of issues which conflicts raise and it largely remains oblivious to the reasons for such conflict.

While the reasonableness of the above arguments might be contested, it certainly warrants due attention by the international community. If the ICC has to remain relevant in the fight against impunity and accomplish its objectives in its entirety, it will have to address the above concerns, as these have refrained States like USA, India, China, Pakistan, Russia, etc. from joining the Rome Statute on the one hand and are apparently prompting withdrawals from States like South Africa, Gambia, Burundi and Kenya, on the other.

(Haris Jamil is a Research Scholar working in the field of International Law at South Asian University. Anmolam is an LLM candidate at South Asian University).