This blog has been authored by Akhila DV a student of NUALS, Kochi
Every individual has a right to life. Sabotaging those rights even during a war is not justified. This has been the basis of the evolution of humanitarian law. The IHL protects the people who are not engaged or unable to fight during the conflict. It is indisputable that a set of rules without stringent enforcement mechanisms is worthless. Therefore, through section 8 of the Rome statute for the creation of the International Criminal Court, International law has criminalized the offense of war crimes. The term war crime used in the Rome statute is a broad term that includes both the breach of the Geneva convention and customary international law irrespective of whether the conflict is International or non-International. To this day, ICC has been engaged in prosecuting war crime offenders to deter future crimes of such nature.
After 20 years of its establishment, it is high time to think about whether ICC has successfully addressed war crimes and protected humanitarian commitments under international conventions. The blog tries to analyze whether the ICC, the court of last resort, has become the court of little resort and whether ICC is capable enough to deal with the war crime issues raised by the modern sovereign state and non-state actors. Further, it also tries to propose an efficient mechanism that complements ICC in effectively tackling the same.
Major Impediments of ICC
Firstly, the Rome statute is the governing law of the ICC. Under section 4(2) of the Rome statute, ICC shall only exercise its power and function on state parties who have become parties to the Rome statute. The major hindrance to the efficiency of ICC lies under this provision. If a conflict is between a state party and a non-state party, the jurisdiction of ICC becomes worthless if the perpetrator belongs to or took asylum from a non-state party or the source of evidence is a non-state party. Further Rome statute provides for seeking assistance and cooperation from non-state parties when faced with such a dilemma. However, it does not impose any binding obligation on non-state parties to comply with the same, making the realization of such a request nearly impossible.
A recent example can be seen in Russia Ukraine conflict. More than 5000 (approx.) civilians were killed in the Russian war against Ukraine, amounting to a war crime. Nevertheless, neither Russia nor Ukraine is a party to Rome Statute, though Ukraine has accepted ad hoc jurisdiction of the ICC under the Rome statute. However, recently, Russia has vocally challenged the effort of the ICC in exercising its power on non-state parties. This will ultimately lead to Russia not executing arrest warrants against Russians responsible for war crimes or not allowing the court to collect evidence from Russian territory to convict the accused. Though the action of initiating an investigation even against Russia – a non-state party in the matter of war crime shows that no one can avoid prosecution after committing such a heinous act, it will remain a mere warning in vain.
Secondly, ICC has failed to accommodate major nuclear power states like the USA, India, Russia, and China, the major players in the multilateral world post cold war. The bigger the power, the more the need to regulate it. So, controlling their actions must have been one of the top priorities of the ICC. However, the current position shows that these bigger power can commit war crimes against people of powerless or less powerful states and get away with it as there is no punitive mechanism in place to hold them responsible. This makes ICC a weaker pawn in matters involving major powers.
Thirdly, a possible argument to defend the power of the ICC in prosecuting war criminals irrespective of their signatory status in the Rome Statute is the UNSC referral of war crimes under Chapter VII of the UN Charter. UNSC exercised this power in the Darfur Libya crisis in 2005 by resolution no.1593 for prosecuting the then president of Sudan for alleged war crimes. However, this mechanism is far from making the ICC effective due to the intrinsic issue of veto within the ICC. If a state crisis has to be referred to ICC, it shall require the concurring vote of 5 permanent members if the matter is non-procedural, which is again decided by involving the veto power of the ICC. This is called a double veto. If a party involved in the conflict is an ally of permanent members, such a referral becomes impossible.
Fourthly, the steer predicament in concurring the universal jurisdiction of a state and the complementary jurisdiction of the ICC threatens the ICC's competence. Under art.17(1(a) and (b) of the Rome statute, if a case is being investigated or prosecuted by a State which has jurisdiction over it, then the jurisdiction of ICC can be ousted. The wording "jurisdiction" has a wider connotation as far as Rome statute is concerned, including universal jurisdiction of a nation-state over any person who commits an offense against the international community, even though the act has no nexus with the state prosecuting it. In other words, if a state tries to prosecute an offender of a war crime, then ICC will become completely powerless to try the offender under the principle of one bi in idem. By taking advantage of this provision, states can easily abrogate the power of the ICC.
Fifthly, Under Article 98(1) of the Rome statute, ICC cannot request a non-state party to surrender an offender if such surrender amounts to the violation of commitment of the non-state parties in International Law. This shielding mechanism can act in favor of the offender by restricting the ICC's power to act. Though 98(1) is meaningless in cases that are referred to ICC by UNSC as held in The prosecutor V. Omar Hassan Ahmad Al Bashir, this is not the same when parties refer cases to ICC under article 14. Therefore, the horizontal commitments of state parties can often be pernicious to the functioning of the ICC.
Sixthly, Article 124 of the Rome Statute endows state parties with a 7-year transition period soon after signing the statute. During this period ICC cannot exercise jurisdiction over the war crimes in the state. This opt-out mechanism can safeguard numerous war crime offenders in such a state, and after seven years, they can leave ICC by withdrawing under article 127, a very lenient provision.
Seventhly, ICC has only focused on prosecuting an individual who bears greater responsibility for the war crime, not everyone involved in the war crime like co-perpetrator, and instigator. The capacity or the official position of an individual does not matter in the prosecution initiated by ICC. This is a major challenge since such individual prosecution does not help deter war crimes since co-perpetrators or instigators can still wage war crimes behind shadows.
The way ahead
These issues, coupled with practical difficulties arising out of the state's concern for sovereignty, have undermined the efficiency of the ICC in prosecuting war crime offenders. Even after two decades of forming the ICC, it has only 31 cases of international core crime, including war crimes from which only 14 cases were disposed of, showing the sloth progress of the ICC. Such paced actions cannot keep on par with the burgeoning of war crimes in the international arena.
These factors call for a substantially more effective system that deters can align well with contemporary development by rectifying these defects. Firstly, the ambiguity in the jurisdiction shall be resolved to give prominence to ICC. It shall provide a concurrent jurisdiction to the ICC when faced with war crimes issues against the complementary jurisdiction. The success of the special court established in Sierra Leonne can set the best example for the same transition.
Secondly, Crimes are local. Thus, if an offender has to be prosecuted, then the criminal justice system in the state territory is more expedient. ICC shall work closely with the UN or other regional forums to establish ad hoc benches in the state's territory. This eases the ICC's effort to collect evidence and track the progress of state cooperation. However, ensuring this would not be uncomplicated since ICC is constrained by the obligation to respect the sovereignty and integrity of the nation-state. Nevertheless, ICC can choose to involve judges from these nation-states who represent both victim and state parties to assist in adjudication without ICC losing its international character and the basic principle it upholds. This can benefit ICC in getting state consensus as state participation is involved.
Thirdly, for the non-state parties, UNSC shall actively act to bind them under the jurisdiction of the ICC by exercising its power under Chapter VII of the UN Charter. However, the primacy shall be given to deciding whether such referral shall be a procedural or non-procedural matter to avoid Veto's repercussions. Though getting a consensus on such a referral is difficult, it is not impossible since diplomatic pressure can assist in getting such a consensus to a greater extent.
These directives, influenced by the special court of Sierra Leonne, can significantly help revitalize ICC in addressing war crimes. However, the bottlenecks caused by the overemphasis on state integrity, state-induced war crimes, and state protection of offenders in the landscape of criminalization shall not be overlooked. This might prompt ICC to change its strategy from time to time to accommodate the resurrection of challenges in new ways. In conclusion, active steps shall be taken from time to time to keep the ICC relevant. Otherwise, ICC shall remain a merely desirable body but not a necessary one.