Maj. Gen. (Ret) J. B Tjivikua
In the aftermath of World War 2, the Allied powers launched the first international war crimes tribunal, known as the Nuremberg Trials, to prosecute top Nazi officials.
The trials uncovered the fascist German leadership that supported the Nazi dictatorship. Of the 177 defendants, 24 were sentenced to death, 20 to life imprisonment and 98 other prison sentences.
Twenty-five defendants were not found guilty. It was not until the 1990s, however, that many governments coalesced around the idea of a permanent court to hold perpetrators to account for the world’s most serious crimes.
The Rome Statute of the International Criminal Court (ICC) is the treaty that establishes the
ICC. It was adopted at a diplomatic conference in Rome, Italy on 17 July 1998.
After being ratified by more than 60 countries, the Rome Statute entered into force on 1 July 2002 to bring justice to the world’s worst war
criminals.
It is a permanent international court established to investigate, prosecute and try individuals accused of committing the most serious crimes of concern to the global community as a whole: the crime of genocide, crimes against humanity, war crimes and the crime of aggression.
Criticism
Champions of the court say it deters would-be war criminals, bolsters the rule of law and offers justice to victims of atrocities. But since its inception, the court has faced criticism from many parties, and has been unable to gain the membership of major superpowers, including the United States of America, China and Russia. The three countries have withdrawn from the court, and many African governments complain their prosecution has singled out Africa.
The US opposition to the ICC hardened under president Donald Trump, although president Joe Biden’s administration has taken a more conciliatory approach, but the tension remains. Supporters of the ICC say its most recent indictment of
Russian president Vladimir Putin in 2023 demonstrates the court’s continued relevance, despite its formidable challenges. Others are incessantly complaining it is ostensibly being manipulated by Western imperialist powers for their interests.
Importantly, the ICC is intended to complement rather than replace national courts. It can only act when national courts have been found unable or unwilling to try the case.
Additionally, it only exercises jurisdiction over crimes that occurred after its statute took effect in 2002. The court also relies entirely on the cooperation of member-state authorities to apprehend suspects, as it does not have a police force of its own. It cannot try individuals in absentia, and defendants are only subject to ICC warrants when they are in member-state territory.
Challenges
There are 123 countries party to the Rome Statute. Some 40 countries never signed the treaty, including China, Ethiopia, India, Indonesia, Iraq, North Korea, Saudi Arabia and Turkey.
Several dozen others signed the statute, but their legislatures never ratified it. These include Egypt, Iran, Israel, Russia, Sudan, Syria and the US.
In October and November 2016, three African Union (AU) member state parties to the Rome Statute, South Africa, Burundi and The Gambia, submitted their written notifications of withdrawal from the Rome Statute to the United Nations (UN) secretary general, but later South Africa and Gambia reversed course in the face of political upheaval and legal challenges.
Burundi left in 2017, following the court’s decision to investigate the government’s crackdown on opposition protests. The Philippines also pulled out in 2019 after the court launched an inquiry into the government’s war on drugs, saying domestic courts are sufficient to enforce the rule of law.
Power push
Russia launched its “special military operation” in Ukraine on 24 February 2022, and on 17 February 2023, the Pre-Trial Chamber 2 of the ICC issued an arrest warrant for Putin because he is allegedly responsible for the war crime of forcibly deporting and transferring “at least hundred” of children from occupied Ukrainian territory to Russia. The court also issued a corresponding warrant of arrest for Russia’s children’s rights commissioner Maria Lvovat-Belova. The arrest warrants were lauded as a “historic decision” by the court.
But earlier, in 2016, Russia pulled its signature from the treaty after the court classified its 2014 annexation of Crimea as an occupation, despite evidence of legitimate strategic security concern. Moscow is therefore unlikely to cooperate with the court’s war crimes' investigation in Ukraine. Many countries are now dumbfounded that the ICC is only mumbling about the genocide, ethnic cleansing, humanitarian and war crimes being committed by the Israeli state in Palestine, encompassing the Gaza Strip, the West Bank and East Jerusalem without taking speedy basic actions against the war criminals as it was the case with Putin.
On the other side, Washington, ironically has been supportive at times and hostile at others, regarding ICC court decisions. US policymakers originally supported the concept of an international criminal court, and the administration participated in negotiations over the Rome Statute. However, it ultimately opposed the treaty over concerns the prosecutor would have unchecked power, and could subject US soldiers and officials to “politicised prosecutions”.
Despite that, president Bill Clinton later authorised US officials to sign the statute, but he recommended that it not be sent to the Senate for ratification until US concerns were addressed. But, president George W. Bush withdrew the US signature in 2002.
In 2002, the US Congress passed, and the president signed the American Service-Members Protection Act, which requires the government to cut off financial assistance to ICC members who would agree to surrender US personnel to the ICC. That law also authorised the president of the United States of America to use all means necessary to force Americans detained by the ICC. It also struck bilateral agreements with citizens of countries, obligating them not to hand over US personnel.
The US administration took a harder line, angered by then chief prosecutor Fatou Bensouda’s push to investigate US armed forces and the Central Intelligence Agency personnel for potential war crimes in Afghanistan, as well as by her preliminary investigation into alleged Israeli crimes in the occupied West Bank and Gaza
Strip.
Finally, in 2008, Washington announced it would no longer cooperate with the ICC, and would block any efforts to pursue US or Israeli citizens. Yet, the US remains complicit in the ongoing genocide in Palestine. No Western-style democracy has had an ICC arrest warrant for its leaders before. If it happens to Israeli leaders this time around, they would be concerned about the stigma and potential isolation that come with it.
In closing, criticisms generally come from two directions. Some sincerely believe the court has too little authority, making it inherently inefficient and ineffective at putting away war criminals.
Others think it has too much prosecution power, that it threatens state sovereignty, and that it lacks due process and other checks against political bias.
Meanwhile, some worry the prospect of international justice prolongs conflicts by dissuading war criminals from surrendering.
Despite multiple challenges, the relevance of the ICC remains discernible, and at least,
attempts are being made to have war criminals account for their bloody actions.
However, the world is at a crossroads. Either to metamorphose into self-destruction, by those already threatening to use nuclear weapons willy-nilly, or gradually move into adopting a multipolar world order, where preponderance of power is not concentrated in any single state,
but rather distributed at the global level, and to push for urgent reform of the United Nations Security Council (UNSC).