As the only permanent international court governed by the Rome statute, the International Criminal Court (ICC) is the most important court in the world today. In its capacity as a judicial body, it has jurisdiction over international crimes against humanity, genocide, war crimes, and crimes of aggression. The primary goal of the International Criminal Court is “to help put an end to impunity for the perpetrators of the most serious crimes of concern to the international community as a whole, and thus to contribute to the prevention of such crimes”[1].
Established back in 2002, the ICC is considered the first step towards international justice. As an independent body, the ICC does not fall under the United Nations (UN). Nevertheless, there is an agreement between the UN & ICC governing their cooperative relationship, with the UN Security Council still having a say in a few matters. However, it has faced numerous challenges and criticism from various countries with regard to its inefficiency.
So far, there have been 32 cases before the Court, some involving multiple suspects. ICC judges have issued 49 arrest warrants[2]. With the cooperation of states, 21 individuals have been detained at the ICC detention centre and have appeared before the Court.
On July 1998, 120 States adopted the Rome Statute which lead to the establishment of The International Criminal court.
The International Criminal Court is not intended to replace national courts. According to the Rome Statute, each state has the responsibility to exercise its criminal jurisdiction over those responsible for international crimes. The ICC can only step in when a state is either unable or unwilling to conduct a genuine investigation and prosecute the offenders.
Challenges faced by ICC
Now, let us examine the challenges faced by the International Criminal Court that may impact its operations in the long term
Political Challenges :
Co-operation & Geopolitics:
The effectiveness of ICC depends largely on its cooperation among nations, international organisations & NGO’s around the world. However, it lacks the power when it comes to political debate. Lack of cooperation leads to delays in proceedings, increased court costs and delays in delivering justice.
Failure to arrest suspects will lead to undermining the court’s credibility and weakens the Rome statute. Unfortunately, this has been profound in various instances. Be it, Israel’s Prime Minister Benjamin Netanyahu rejecting the arrest warrant for his alleged war crimes in Gaza or Russia issuing arrest warrants against ICC prosecutor Karim Khan and several judges for issuing unlawful decisions against President Putin for children’s rights. It is high time that the state parties hold each other collectively accountable for the treaty signed and act in accordance.
Failure to comply with ICC orders must be taken very seriously and following the procedures relating to non-cooperation adopted by the 10th Session of “Assembly of State Parties” should be made compulsory.
Another major problem faced by the ICC lies with the influential political powers of the world, who are not part of the ICC. The United States, China & Russia pose a major threat to ICC and limits its ability to function globally. The big 3 countries though a part of UN ( United Nations) are not members of ICC.
Due to its political and military power, the USA finds the ICC to be a threat to its national sovereignty and does not want to be subjected to the ICC’s authority. Having grown to become a superpower, China was determined to stop any international body from meddling with its internal affairs. However, Russia, which initially signed the Rome Statute, retracted it when the court criticized it for its military actions in Crimea and Ukraine.
With the ICC having no jurisdiction to try criminals from powerful countries, it faces restrictions when dealing with international crimes. The ICC struggles to try individuals from such states since arrests and extraditions can only be accomplished with the cooperation of national governments.
Withdrawal of African States:
Being one of the early signatories of the Rome statute, African states have passionately been part of the establishment of ICC during the initial days. Since 1998, 33 African states have joined the ICC with Ivory Coast being the most recent back in 2013. With their main purpose in supporting the ICC being to prevent the Rwandan genocide atrocities and since their people have always been subject to various human rights violations such as slavery, war & violence, Africa has long supported the idea of an independent ICC.
However, in recent days their relationship has become strained with the African countries decision on leaving the ICC. Even though there still exists ambiguity with regard to all the member states of the African Union(AU), South Africa back in 2016 notified the UN Secretary-General of its intention to withdraw from the ICC. This would have a significant impact on the ICC as they constitute almost 1/3 rd of the members of the ICC.
The growing debate on the ICC targeting African leaders has become a huge issue. Out of the 54 individuals indicted by ICC, 47 are Africans – supporting the myth that ICC is after “Hunting Africans”[3]. This has led to a varied opinions regarding the effectiveness of the ICC on why they are only after criminals in Africa and not other countries. “There are so many leaders in the Western world who have committed crimes against humanity in different countries like Afghanistan, Yemen, Syria and none of them have ever been taken to the International Criminal Court” stated Magdalene Mutheu (film maker) from Kenya.
With the hope of improving the relationship between ICC and African Union, the President of ICC Judge Piotr Hofmanski recently met with H.E. Macky Sall, President of Senegal and Chairperson of the African Union, and with H.E. Moussa Faki Mahamat, Chairperson of the African Union Commission, on 5th and 6th of September 2022 respectively at the Hague[4].
Operational challenges:
Budgetary constraints:
Budget has long since been a major problem of ICC. The ICC operates with limited financial resources and therefore the leading question is “How does the ICC conduct multiple investigations across the world?”.
The ICC is primarily funded by contributions made by it’s State parties. It is based on the scale of the member’s economy, wealthier nations fund more and poorer nations fund less. The budget covers all operational costs such as investigations, salaries, prosecution and administration. The annual budget for ICC for the year 2024 stands at $187 million[5]. Though it can be considered a big number it is nowhere near enough for an international court.
Let’s compare its budget with the Guantánamo military court. Guantánamo military court was established in 2001 to try non-citizen terrorists who were suspects in the Guantánamo Bay Prison. To date, the court has convicted only 8 individuals, yet its budget stands at $343 million. In contrast, the Dutch military recently raised its defence spending to over €2.4 billion[6]. This leads us to wonder that ICC’s budget is actually very limited.
Due to financial limitations, the court does not have the liberty to take on all cases leading to selective justice. The budget also has an adverse effect on the trial periods leading to prolonged hearings and even a shortage in staff members in ICC. With only over 900 staff[7] across different countries, the budget of the ICC is considered to be very lacking.
Though increasing the contributions made by member countries would help with the problem, it is considered rather unfair and could only help in the short- run.
Prolonged trails:
The ICC is often criticised for its lengthy trial processes. For instance, in the Bemba case, his first appearance before the pre-trial chamber occurred in July 2008. The trial itself began in 2010 and lasted four more years. It took the court an additional two years to convict him in 2016, only for him to be acquitted in 2018. Ultimately, Bemba spent nearly a decade in custody.
Another example is the case of The Prosecutor v. Pauline Nyiramasuhuko et al. [8] at the ICTR (International Criminal Tribunal for Rwanda). Here six accused individuals were arrested between 1995 and 1998 and brought to trial in July 2001 They were convicted ten years later, with their appeals only being resolved in 2015. By that time, one of the accused had already spent 20 years in detention.
This shows that the problem of lengthy and prolonged trials is very evident and therefore leads to the violation of human rights of the accused.
Enforcement limitations:
Due to various restrictions, particularly financial constraints, the ICC continually faces enforcement limitations. The ICC primarily relies on member states for the arrest and transfer of suspects, as it does not possess its own police or military resources. Consequently, the Court lacks the authority to compel defendants to appear for trial and must depend on the good faith cooperation of member states in managing these individuals. For instance, the ICC issued an arrest warrant for Sudan’s President Omar Al-Bashir, which was disregarded by 19 countries. Due to these limitations, the Prosecutors also find it hard to collect information. As the prosecutors rely largely on State support when launching investigations, non-cooperation from states will lead to pro-longed trials and even losing the credibility of the case.
Jurisdictional Gaps:
UN Security Council & ICC:
Under the UN Charter, the UN Security Council is tasked with maintaining international peace and security. The Rome Statute grants the Security Council the authority to determine acts of aggression. There are numerous instances in which the UN Security Council and the ICC are closely interconnected.
The Security Council has the authority to refer situations to the ICC concerning any of the 4 crimes defined under the Rome Statute. When the Prosecution initiates an investigation proprio motu (an official act taken without a formal request from another party) or upon referral from state parties, it is required to inform the Security Council.
However, a challenge arises when the UN Security Council refers cases involving non-state parties to the ICC, as this can create tension. To date, the Council has referred only two cases to the ICC. The most recent attempt to refer a case, concerning the situation in Syria in May 2014[9], was contentious; both Russia and China exercised their vetoes against the referral. Numerous instances of the Security Council’s ineffectiveness in delivering justice have raised questions about the necessity of the veto power.
The ICC is therefore considered as an advanced judicial body that has consistently fulfilled its purpose. However, the question of whether the ICC will still exist in another 30 years remains open to debate. Its future success largely hinges on the cooperation of its state parties, the United Nations, and non-state actors. The ICC will always be viewed as a crucial step toward a more peaceful world, and its effectiveness will depend on an individual’s willingness to engage and participate towards a crime-free world.
[1] International Criminal Court, Understanding the International Criminal Court (The Hague, ICC: 2020) p. 9
[2] The International Criminal Court, https://www.icc-cpi.int.
[3] Melissa Hendrickse, A chance for Africa to counter the pitfalls of international criminal justice?, Amnesty International, April 24, 2024.
[4] Abdallah, F.E., “ICC President meets with Chairperson of African Union and
Chairperson of African Union Commission”, [Press Release: 6th September, 2022], https://www.icc-
cpi.int/news/ Accessed, 24th August, 2023
[5] The International Criminal Court, https://www.icc-cpi.int.
[6]Reuters, Netherlands hikes defence spending to face new threats,Reuters(Sep 5,2024), https://www.reuters.com/world/europe/netherlands-hikes-defence-spending-meet-nato-goal-2024-09-05.
[7] The International Criminal Court, https://www.icc-cpi.int.
[8] Prosecutor v. Nyiramasuhuko et al., Case No. ICTR-98-42-T(2011).
[9]Security council report, The Security Council and the International Criminal Court(2018).
Author: Danika Natasha
Juris Centre 