There is a controversy regarding the question as to whether there exists an international criminal law or not. While some argued that there is a small body of international penal rules, on the other hand, some said that the international criminal rules do not exist in material terms.
International criminal laws can exist in material terms only when certain preconditions are satisfied.
1. some external authority to enforce sanctions of international criminal law
2. an international criminal court
3. a code of criminal law
4. States as well, individuals should be amenable to international criminal possibility.
In the absence of requisites such as these, Prof . Schwarzenberger has remarked that unless there is a transformation of the present system of world power politics in disguise into at least a world federation,[1] it is futile to comprehend the idea of international criminal law.[2]
Background of International Criminal Court
Proposal for the establishment of criminal court
Proposals for the establishment of the international criminal court have been under consideration for more than 50 years. The advisory committee of jurists, which was given the task of preparing plans for the establishment of a permanent court of international justice, also had before it a draft relating to the constitution of a high court that could take cognizance of “crime committed against the international good order and universal law of nations.”.[3] The advisory committee met in the Hague in 1920 and drew a draft scheme for the institution of a permanent court of justice. The final draft also included the recommendation for a high court of international justice.
In 1937, the League of Nations drafted a convention for the establishment of the international criminal court, which was proposed to contain 5 judges and 5 deputies belonging to different nations. It was proposed for all the members to adopt the convention on November 16, 1937.
However, the matter was considered and pursued again. The general assembly requested the international law committee study the desirability of such an institution for the trial of convicts of genocide and other crimes. In the fifteenth session, the general assembly established a committee (the Geneva committee) on international jurisdiction, which again established a seventeen-member committee that proposed a revised draft in the nineteenth session of the general assembly. [4]
However, various problems arose in connection with the establishment of the international criminal court, and various methods were prescribed, out of which the members favoured the establishment of the court of multilateral convention. [5]
Apart from the U.N., the proposal of setting up an international criminal court was also made by various other institutions and persons, such as two conferences held in Rome, Wisconsin, U.S.A., in 1971–72 and in Bellagio, Italy, in 1972 under the auspices of the international conference. U.N. commission on crime prevention and criminal justice
Later on, realization dawned upon the international community that the new forms of crimes are emerging. This led to 114 state ministers meeting at the Versailles (France) in November 1991 and considered the creation of an effective U.N. crime prevention and criminal justice program. these concerns were affirmed by the U.N general assembly on December 18th, 1991 . The general assembly called for the creation of the commission on crime prevention and criminal justice as a functional body of the economic and social council. The general assembly decided to provide all its funds to the new commission and dissolved the existing committee on crime prevention. Furthermore, the general assembly also approved a statement of principle and program of action for the action of the U.N. crime prevention and criminal justice program devoted to providing practical assistance to the states, such as data collection, information, and training to help prevent crime within and among the states. [6]
World conference on organized crime
In its second session held in Vienna from 13 to 23 April 1993, the commission on crime prevention and criminal justice accepted an offer by Italy to host a world conference on organized crime in the second half of 1994. attended by 142 nations, the world conference on organized transnational crime was held at Naples (Italy) from 21-23 November 1994. It discussed the new criminal style, or the “crime multinational” as termed by U.N. secretary Boutros Boutros ghali. It focused on increasing financial sophistication and predominantly international character of present-day crimes. [7]
Convention against the transnational organized crime
On November 29, 2000, the general assembly adopted this convention. It entered into force on September 29, 2003, and had 185 members as of January 2015. It aimed at the prevention of trafficking of women, smuggling of migrants, and illicit manufacturing and trafficking of firearms and their parts.
Adoption of the statute of the criminal court
The general assembly passed a resolution 51/207 on 17th December 1996, through which it decided to hold a conference of plenipotentiaries in 1998. This was accepted by the general assembly on 15th December 1997 in its resolution 52/206, and it was decided to hold the United Nations conference of plenipotentiaries on the International Criminal Court from 15 June to 17 July 1998. On July 17, 1998, the conference adopted the statute known as the Rome Statute of the International Criminal Court. This entered into force on 1st July 2002. This conference was attended by 162 countries.[8]
Jurisdiction of the ICC
it shall be limited to the most serious crimes of concern to the international community as a whole. According to the Article 5 of the Rome Statute, these are:
1. the crime of genocide
2. crime against humanity
3.war crimes
4. the crime of aggression
composition: the international criminal court, according to Article 34 of the statute, shall consist of
(a) presidency division
(b) an appeal division
(c) office of the prosecutor
(d) the registry
Moreover, it shall consist of 18 judges selected from different states and should possess high morality, legal competency, impartiality, and integrity.
Human rights and ICC
The ICC aims to eradicate international crimes and hold those individuals responsible who cause these crimes and hold them to face justice. Moreover, it also aims at the prevention of these crimes by effective administration of justice.
The International Criminal Court has jurisdiction over 4 main crimes, these are:
1. Genocide
The first crime is that of genocide, which is characterized by the intention of killing, destroying, or harming a particular community on the basis of nation, ethnicity, race, or religion. The main aim of this is the reduction in the number of members in the said group by preventing births or forcibly transferring the children of it to another group.
2. Crime against humanity
These constitute serious violations on a large scale. These are 15 types of crimes mentioned in the Rome Statute, such as murder, slavery, apartheid, rape, imprisonment, forcible disappearances, etc.
3. War crimes
These include serious breaches of the Geneva Convention, such as intentional attacks on hospitals, the use of child soldiers, and the killing of civilians and prisoners of war.
4.Crimes of aggression
It was defined by amending the Rome statute at the first review conference of the statute of Kampala, Uganda, in 2010. These include the use of armed forces on the sovereignty, integrity, and independence of another.[9]
Key cases
The role of the ICC in addressing international crimes can be understood with the analysis of some cases.
1. The Prosecutor v. Al Hassan Ag Abdul Aziz Ag Mohamed Ag Mahmoud[10] : In this case, Al Hassan Aziz Ag Mohammad Ag Mahmoud was suspected of crimes against humanity and war crimes allegedly committed in Timbuktu, Mali, between 2012 and 2013. Charges were confirmed on 30 September 2019. opening of the trial in July 2020. He was convicted on June 24, 2024, in ICC custody.
2. The Prosecutor v. Ali Muhammad Ali Abd Al-Rahman[11]: Suspected of crimes against humanity and war crimes allegedly committed in Darfur, Sudan. Confirmation of charges took place on 24-26 May 2021. charges confirmed on 9 July 2021. trial opened on 5 April 2022 and is still ongoing.
3. The Prosecutor v. Ahmad Al Faqi Al Mahdi[12] – Found guilty, sentenced to 9 years. On September 20, 2016, the trial chamber VIII found Mr. . Al Mahdi guilty and found him guilty of war crime of intentionally attacking against historic monuments and buildings dedicated to religion in Timbuktu, Mali, in June and July 2012. Time spent in detention since arrest to be deducted from sentence. sentence reduced by two years on 25 November 2021. Reparation order on 17 August 2017. confirmed in appeals on 8 March 2018.
4. Additionally, the ICC has also been in the news for issuing and arresting warrants against Vladimir Putin and Benjamin Netanyahu, both of which were done for alleged commission of war crimes by them during the Russian-Ukrainian war and the Israeli-Palestine war, respectively.
Challenges faced by the ICC in upholding human rights
The adoption of the Rome Statute and establishment of international criminal law is a big milestone in the field of criminal justice and has played an immense role in the eradication of crime on an international level. However, this had its own challenges:
1. The crimes such as hijacking and terrorism, which pose a threat not only to a particular state but to the whole world, are still not included in the list of crimes over which the ICC has jurisdiction.
2. The enforcement system is far from satisfactory; the states have still not prepared a proper court for compulsory jurisdiction.
3. According to the 2011 reports of the ICC, this requires more international recognition and more members. Back in 2011, the number of members was 116, which has now increased to 124. However, still, many countries, such as India, China, and Russia, are not a part of it.
4. Furthermore, according to the same report, there are many areas where the court must improve its work and efficiency, such as IT, areas of administrative nature, and judicial work. Additionally, the office of the prosecutor must develop an effective body for prosecuting international crimes. [13]
ICC’s complimentary role in national justice systems
According to the principle of complementarity, the ICC can only use its jurisdiction when all the other national legal systems fail or when they are unable or unwilling to do so.
This principle was implemented through Articles 17 and 53 of the Rome Statute, which deal with the conditions for a case to be admissible by the ICC. However, this does not mean that the state cannot investigate and prosecute other atrocities potentially under the jurisdiction of the ICC. The states and ICC must work together to address the cases properly.
It is important to ensure complementarity because:
1. It respects the primary jurisdiction of the state
2. National justice proceedings have certain advantages over international ones, such as being closer to the crime scene and victims and better understanding of the administration and socio-economic conditions prevalent in the country. This ensures better efficiency in the redressal of the issue.
3. It strengthens a culture of the rule of law and legality within the state. [14]
ICC and deterrence of human rights violations[15]
The formulation of the ICC and its ratification can have a deterrent effect on the violation of human rights. According to a research conducted by Beth Simmons and Allison Danner, “suggestive evidence that a government’s ratification of the ICC tends to be correlated with a pause in civil war hostilities and reduction in human rights violations.”
Part of this may be attributed to the ICC’s complementarity provision that allows its members to formulate their own rules on the domestic level.
According to the “credible commitment theory” of Simmons and Danner, the least accountable governments with a past of civil violence voluntarily subjected themselves to the ICC jurisdiction. This can be used as a form of self-binding by the governments that are the most vulnerable.
On the other hand, avoiding ICC jurisdiction by conducting domestic prosecution also had a positive effect on the deterrence of human rights violations. For example, research by Sikkink and Walling in 2007 found that “in 14 of the 17 cases in Latin American countries that have chosen trials, human rights seem to have improved.” [16]
Conclusion
Thus, the author explained what an international criminal court is and its importance in the deterrence of human rights violations. The ICC is a permanent body that was formed under the Rome Statute and typically addresses 4 different types of international crimes, namely, genocide, crime against humanity, war crimes, and crimes of aggression. The author also analyzed various cases to explain the working of the ICC and its redressal of the issues. However, there are certain challenges that the ICC faces during this, such as a lack of international recognition. Various nations like India, China, and Russia are not even its members. In the author’s opinion, proper international recognition and ratification are necessary for effective implementation of justice and ensuring peace and harmony.
Additionally, various heinous crimes like terrorism, which pose a global threat, are not given place in the statute, something that should be done at the earliest in order to establish peace and harmony among the nations. Furthermore, the ICC often acts as a last resort for international criminal issues, and therefore, various big cases are not even addressed by the ICC. The ICC has only 32 cases and has only issued 59 search warrants, 9 summonses, 11 convictions, and 4 acquittals. In the author’s opinion, the ICC needs to address more issues and provide justice in them to deter the criminals from committing international crimes. All these changes are necessary to establish international peace.
[1] J.E.S Fawcett, The Law of Nations p.18 (1961)
[2] Dr. S.K. Kapoor ,International Law and Human Rights, 381, 22nd ed 2021
[3] Dr. S.K. Kapoor, International Law and Human Right, 383, 22nd ed, 2021
[4] Dr. S.K. Kapoor, International Law and Human Rights , 384, 22nd ed, 2021
[5] Blischchenko and N. Zhdanov , Terrorism and International Law , 261,1984
[6] Dr. S.K.Kapoor, International Law and Human Rights, 385, 22nd ed, 2021
[7] Dr. S.K.Kapoor, International Law and Human Rights, 385, 22nd ed, 2021
[8] Dr. S.K Kapoor, International Law and Human Rights, 386, 22nd ed, 2021
[9] International Criminal Court https://www.icc-cpi.int/about/how-the-court-works (Last visited Nov. 21, 2024)
[10] ICC-01/12-01/18
[11] ICC-02/05-01/20
[12] ICC-01/12-01/15
[13] H.E. Judge Dr. jur. h. c. Hans‐Peter Kaul International Criminal Court-Current Challenges and perspectives,International Criminal Court, 2011, 5-6, https://www.google.com/url?sa=t&source=web&rct=j&opi=89978449&url=https://www.icc-cpi.int/sites/default/files/NR/rdonlyres/289B449A-347D-4360-A854-3B7D0A4B9F06/283740/010911SalzburgLawSchool.pdf&ved=2ahUKEwjxk_7ThvCJAxX5S2wGHZpqOrcQFnoECDYQAQ&usg=AOvVaw05pdnx-fuCRedbuzW0K2wn
[14] Parliamentarians for Global Action, https://www.pgaction.org/ilhr/rome-statute/complementarity.html#:~:text=According%20to%20the%20principle%20of,to%20genuinely%20carry%20out%20proceedings. (Last visited Nov 22, 2024)
[15] Christen Romero Philips LAW ’18, The International Criminal Court & Deterrence, Standford Law School, 2016, 4, https://www.google.com/url?sa=t&source=web&rct=j&opi=89978449&url=https://law.stanford.edu/wp-content/uploads/2016/07/Philips-The-International-Criminal-Court-and-Deterrence-A-Report-to-the-U.S.-Department-of-State.pdf&ved=2ahUKEwi7kfrHlPCJAxX1RmwGHcwTJhsQFnoECC8QAQ&usg=AOvVaw36c6j024n9t4wEsFfDpiHn
[16]Kathryn Sikkink and Carrie Booth Walling, The Impact of Human Rights Trials in Latin America, Journal of
Peace Research 44(4) 427, 442, (2007)
Author: Amrita Gaur, Government Law college, Kota
