ROLE OF THE INTERNATIONAL CRIMINAL COURT IN THE PROSECUTION OF WARS AND OTHER CRIMES

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10 months ago

Author: Anubha Kumar, a student at Symbiosis Law School, Hyderabad

Abstract

The paper discusses and analyses the objective of the International Criminal Court and its significance. It focuses on rendering the importance of the ICC as the last resort for widespread crimes and genocides taking place in the global atmosphere. Different large-scale crimes and wars have led to the disintegration of the judicial system and for the protection of the judiciary, the role and jurisdiction of the ICC have been showcased in the paper. It also highlights its legal framework and the structure of the functioning of the Court. It also gives a brief study of the Rome statute and laws enshrined under its articles. The various roles of the prosecutor and other officers have also protected the victims and the funds raised are one of the key importance of the paper by the Court, It also aims to provide an analysis of the recent cases that have been challenged in a court of law. The research paper aims to prepare a study of the revolvement around the topic. The criticism and their showcase have been discussed with analysis and proper evaluation has been done in the research paper.

History and legal framework of the International Criminal Court

The International Criminal Court (ICC) is determined to prosecute crimes taking place at a large scale against the scale of humanity. Large-scale crimes need an adjudication by a higher authority and in the determination of international concerns of two countries. It is considered to be a last resort in the adjudication of crimes as it deals with crimes in wars, genocides, nuclear attacks, and all the crimes that put a horrendous mark on the country’s heritage and its interests. It was set up by the United Nations in the year 1990.

Rome Statute was the court’s founding treaty set up in 1998 and its initiation in 2003. The International Criminal Court has considered raising awareness around the world of the requirement of responsibility in situations that follow investigations mainly in areas of Africa, the Democratic Republic of Congo, and other southern African regions. The main objective of the establishment of this court was to administer justice for the needy and those who had faced long-term losses- in both the financial and social aspects of their countries. Several Countries such as Belgium, Spain, Africa, Afghanistan, Palestine, Germany, Australia, etc. are members of the ICC. The Rome Statute was enacted by 123 countries in total.

It is a multilateral treaty consisting of 4 organs functioning together for the Court which are the Presidency, Judicial Division, Office of Prosecutor, and Registry. The Assembly of State Parties acts as the Court’s supervisor. It is responsible for the election of judges, prosecution, and various amendments in relation to the Rome statute. The presidency has the most power consisting of Presidents and Vice Presidents elected by a higher majority. There is also an office of the Prosecutor for the functioning of the prosecution by the court. Since a high degree of crimes are under prosecution and crimes of a grave nature are placed before the court, a thorough examination and in-depth analysis along with heavy investigation is carried out.

Prosecution of war crimes under ICC

The crimes which take place where there is a threat of aggression against one country and there is an infringement of the rights of the citizens of the country or there is an armed rebellion, such a crime is termed as a war crime. It is a serious crime against humanity and various provisions under international law protect the rights of the citizens and combat such war crimes. It can include a direct attack on the human population causing cruel treatment to a section of people, widespread bloodshed, or civil war. The ICC has adequate jurisdiction to adjudicate upon such commission of a crime as a source of large planning or any motive. Many crimes like murder, enslavement, and any broad and enlarged attack on humanity shall be subject to punishment and prosecution by the Court of Law.

Investigation and procedure under ICC

The role of the office of the Prosecutor (OTP) is assigned who works independently in the court. Its main responsibility is to carry out examinations and investigations for the prosecution of heinous crimes. Information on suspected crimes under the Court’s jurisdiction is sent to the OTP by any individual, organizational structure, or State. The communications that the OTP has accumulated up to this point serve as a framework for the Office’s preliminary investigations.

The OTP does a first assessment to determine if there is proper and reasonable cause to open the investigation. The Officer must evaluate and confirm specific legal requirements in the procedure. The authorities at the national level are required to investigate for the prosecution in the initial process rendering it as an authoritative regime. There is no specific time limit required in the assessment of the preliminary examination as such crimes vary on a case-on-case basis. The prosecutor has the authority to either assess the investigation and give its nod toward further evaluation and can even reject the inquiry as deemed by the circumstances or the factual matrix of the situation.

As soon as the Officer gives their nod and accepts it, the investigations are conducted and different pieces of evidence of the concerned nations are taken into account which varies by the number of victims of the crime and its consequences. It assesses the gravity of grave matters and those accused.

Once there is a significant piece of evidence available, it becomes evident to prove in a court of law and thereby an issue of warrant of arrest or summons is issued by the concerned judges in consonance with the crimes. Those accused of the crime need to appear before the judge of the court. The officer of Prosecution needs to plead before the court of the crime committed and the judges will assess whether to continue further proceedings or shall decline it. If it is sufficient that it shall be adjudicated, the trial continues. The Onus of proof lies on the officer to prove the accused as guilty under reasonable grounds with resources of evidence and other legal documents. The accused is also required to present their defense on the claim.

Effective reparations made for Victims and Survivors

Victims under the ICC are awarded reparations to administer justice to the righteous against the gruesome crimes against humanity. When a victim’s private objectives are at stake, the Rome Statute enables victims to be represented by counsel before the ICC. Article 75 of the Rome statute states the jurisdiction of the court in awarding compensation, damages, and rehabilitation to the victims.

A fund was raised by the ICC known as the Trust Fund for Victims for their basic needs and utilization of victims of crime. This fund includes donations, funding made spontaneously by nations, international groups, and organizations. The funds raised shall have a general aid competence in various nations and circumstances that the ICC is investigating. To help victims and their families with material support, emotional assistance, and physical treatment in such cases, the TFV may use donations made voluntarily by the government and its organizations. There also lies the duty of the TFV to notify the relevant chamber while carrying out such special measures.

There are provisions made for the security and protection of those under the wars and genocides. Article 68 of the Rome statute renders its safeguard of the witnesses of the crime and the survivors. A separate unit has been established by the concerned court to increase the importance of its safeguard measures for the survivors and victims of criminal acts at a large scale. As of the year 2023, there have been a total of 5 cases that have arrived at the stage of reparations based on the ruling by the International Criminal Court regarding such a case.

Challenges and Criticism Faced by ICC

Various criticisms around the judgment and adjudication of the International Criminal Court have been challenged. There has been a lack of cooperation by the States and its question on the sovereignty for the prosecution of the crimes and the incapability of the majority of the judges. There was a motion raised where it was claimed that the ICC acts unlawfully and uses an unfair inquiry, which jeopardizes national security thus putting US allies at risk. In the framework of fair legal processes and autonomous, objective investigations, it can be termed as an additional step towards exerting pressure on the ICC and compelling its personnel. The most serious international crimes are the subject matter of the ICC’s investigations and prosecutions.

It is often condemned for being ineffective. unproductive, and excessively costly. The ICC is constantly constrained and has no net growth, which makes matters worse when there are too many cases being filed. Proponents have been urging the ICC to get more involved in cases where it may not have the authority to intervene.

There is also a time constraint and limited resources for ICC to work at a fast pace and function smoothly with the sovereign functions of the government. Remarkably, the International Criminal Court is not limited to cases in which the state has been designated as the offender. Instances where nations have declined to take action against the offenders have also compelled them to act.

As a result, the ICC is increasingly bearing the brunt of responsibility for the national court’s shortcomings. It shall be carefully noted that despite these lacking functions and ineffectiveness, several nations consider ICC as the main pivot as a conventional method to assess mass crimes and genocide or any crimes against humanity.

Case laws:

In Prosecutor v. Al Hassan, the defendant was suspected of criminal activity in waging wars and widespread crime against humanity in the years 2012 and 2013. The Crimes are alleged to have taken place in the Islamic states against the civilian population of Mali. Crimes included rape, extortion, sexual enslavement of women, and large-scale execution. It was held by the International Criminal Court unanimously upholding the Pre-Trial Chambers 2019 ruling that in light of the factual matrix of the case against Mr. Al Hassan, the defendant, it is substantially serious enough to warrant additional legal proceedings against him.

In Prosecutor v. Bemba Gombo, Mr. Gombo was alleged of crimes of murder at a large scale and rape by also attacking the Central African region. Nevertheless, it was further held that there was an error on the side of the Trial Chamber and the defendant shall be acquitted. The Trial Chamber had released its interim order against Mr. Gombo stating that he had refused to speak to any witnesses in this matter, abstained from making public comments about it, being fair to any court orders, not moving without notification, and promptly turned himself into the appropriate officials as and when Trial Chamber demands. Therefore, he was sentenced to one year imprisonment along with a fine for the commission of crimes against humanity.

In the recent war between Russia and Ukraine, the ICC had planned on issuing arrest warrants against Russia and the alleged abduction of young children from Ukraine and its target on the Ukrainian civilian population. There has been criticism about the same for it being too slow for such a process yet its investigations concentrate emphasis on the ongoing crimes and their victims and, in the end, convey a message to those who commit them that the pursuit of righteousness is long, notwithstanding the difficulties of obtaining evidence in a war zone and apprehending those engaged.

Conclusion:

The International Criminal Court has its main objective which lies in its accountability and administration of justice. It has significance in developing and enforcing International Criminal law in the sphere of fulfilling its aim and objectives. It has been facing challenges and criticism due to lack of resources or any other means, despite such inefficiencies it works on improving and adapting work with different member countries. It aims at improving its relations with other district courts and their workflow, other civil organizations, or individuals of a particular nation. Along with properly communicating and interacting with the interests of the general public and communities that were impacted, the ICC has to maintain an appropriate equilibrium between its procedural and judicial duties and its political and social ramifications. Though not a perfect or all-encompassing solution to the issue of impunity, the ICC is a vital component of the international legal working as a human rights framework.

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