17 July is International Justice Day which marks the commemoration of the adoption of the Rome Statute on 17 July 1998, the origin of the International Criminal Court (ICC). On 1 July 2002, the Rome Statute took effect upon ratification by 60 states, legitimately establishing the ICC. As of July 2024, 124 states are party to the statute. India is not a party to the Rome Statute along with the United States and China.
The ICC has jurisdiction over crimes under international law including genocide, war crimes, crimes against humanity and crimes of aggression committed on or after 1 July 2002. The court can exercise its jurisdiction over these crimes when they were committed by a national belonging to a party to the statute (state party), or in the territory of a state party, or in a state that has accepted the jurisdiction of the ICC.
The jurisdiction of the ICC is complementary to the jurisdictions of domestic courts. It is not to replace the national criminal systems and it only prosecutes cases when states are reluctant or not capable to do it in a legitimate way. It means it should intervene when rogue states refuse to let go of alleged architects of war crimes, mostly who dwell in high political and military power, barely be touched by domestic legal systems.
The ICC may also have jurisdiction over crimes if its jurisdiction is authorised by the United Nations Security Council (UNSC) pursuant to a resolution adopted under Chapter VII of the UN charter which allows the UNSC to refer certain cases to be considered by the prosecutor of the ICC. There is a criticism that the Rome Statute made the ICC subordinate to the UNSC, by providing power to permanent members to refer cases to the ICC, and accordingly giving scope for their interference. Moreover, without a recommendation from the UNSC or a state party, Article 15(1) of the Rome Statute gives the power of Proprio motu (on one’s own initiative) to the prosecutor of the ICC to initiate an investigation into certain circumstances. The self-determining ability of the prosecutor to initiate own investigations and cases was one of the most hotly debated issues during the negotiations of the Rome Statute and condemned by many nations.
The office of the prosecutor conducts a preliminary examination to determine if the alleged crimes have adequate evidence, enormity and jurisdiction, followed by investigations and prosecutions. When investigating, the prosecutor needs to collect and reveal both implicating and vindicating evidence. The prosecutor will have the power to reject the recommendations made by the UNSC and the state parties. When an arrest warrant is issued, parties to the statute are obligated to apprehend and transfer defendants to The Hague for prosecution.
As the ICC does not have its own police force, the states that have ratified the Rome Statute have a legal obligation to cooperate with the ICC at all stages of preliminary examinations, investigations, prosecutions, arrests and surrenders of suspects, freezing the assets of suspects and enforcing sentences. In fact, the state cooperation has become a major challenge to the ICC. States are differing and opposing the ICC specifically by not cooperating for the reason that they feel threatened by its capability to prosecute their top leaders for the most serious crimes under international law that undermines their sovereignty.
At present, there have been 32 cases before the ICC, with 11 convictions and four acquittals. ICC judges have issued 49 arrest warrants. 21 people have been detained in the ICC detention centre and have appeared before the court and 20 people on the loose. While there are some positive examples of state cooperation for implementing arrest warrants, the ICC has also faced numerous challenges in the case of heads of states like Simone Gbagbo (Ivory Coast), Saif al-Islam Gaddafi (Libya) Vladimir Putin (Russia), Uhuru Kenyatta (Kenya) etc. Even if the leaders who have a warrant visit any country party to the statute, the states are unwilling to arrest them as they have their own diplomatic interest in ascertaining their visit.
ICC has been blamed for being a tool of Western bias in support of powerful countries against feeble states. The major criticism of ICC is that it disproportionately focuses on the African continent, as the majority of cases have been dealt with the alleged crimes in African states. Conversely, the recent investigations into the Myanmar, Palestinian territories, Russia, Ukraine, and Venezuela give the impression that the ICC is expanding its outstretch and capability.
Last year, arrest warrants were issued against Russian President Vladimir Putin and the Children Rights Commissioner Maria Lvova-Belova. Moreover, in May 2024, the prosecutor of the ICC announced his application for arrest warrants for Israel Prime Minister Benjamin Netanyahu and Foreign Minister Yoav Gallant, and Hamas leaders Yahya Sinwar, Mohammed Deif, and Ismail Haniyeh. The action against Russian President Vladimir Putin received extensive appreciation from the West, whereas the application for arrest warrants for Israeli leaders has surprised, seeing the first time the ICC is pursuing the leader of a Western ally.
In the case of India, it did not sign the Rome Statute, and thus, is not a party to the Rome Statute. It has many apprehensions like many other states in issues like power given to prosecutors, crime classification and state sovereignty. India was not supportive of the powers given to the prosecutor on a proprio motu basis.
India assumed that the jurisdiction must be commenced by the competent authority of states and not the prosecutor, as the prosecutor who will get power to enquire may be biased and on its own motion for political purposes. For instance, if India is a party to the statute, Indian leaders and military officers may be summoned out of the country by politically motivated (or persuaded by the organisations of the terrorists) ICC prosecutor for alleged crimes committed in the course of performing their duties in areas like Kashmir and the North East.
Such apprehensions about potential misuse and abuse were not confined to India and were shared by most countries whose Armed Forces are involved in such situations of armed conflicts. Another drawback of the Statute is there is no inclusion of the use of nuclear weapons and terrorism among the list of crimes. The ICC statute refused the proposals of India to authorise these crimes among crimes within the purview of the ICC.
Undoubtedly, the ICC since its inception in 1998 is playing a primary role in the field of international criminal justice as a responsible body. The debate over the court still fumes because it challenges the exclusivity of sovereign states. Many states including India feel that overindulgence of prosecutorial power without sufficient due process and other checks against political prejudice intimidates the state sovereignty.
The complicated relationship with the world’s great powers, such as China, Russia and the United States is also a significant challenge. Facing such considerable challenges may threaten the ICC to bring justice to the world’s most terrible war criminals. If the court is willing to set right its prosecutorial practices and judicial approaches, the ICC’s future may be vivid and vibrant.
(Disclaimer: The opinions expressed in this article are those of the writer. The facts and opinions expressed here do not reflect the views of ETV Bharat)
