Role of International Criminal Court in Combating Crimes Against Humanity and War Crimes

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Role of International Criminal Court in Combating Crimes Against Humanity and War Crimes

Authors: Kashish Kochar, Vivekananda Institute of Professional Studies
Priyanshi Saraswat, Vivekananda Institute of Professional Studies
Diya Somany, Vivekananda Institute of Professional Studies

Abstract

This paper assesses the capability of the ICC to fight against crimes of humanity and war crimes in modern times through an exploration of both the historical background and structural establishment of the Court, along with a description of its basic legal foundation and key organs building up its institutional architecture. The paper proceeds to examine both procedural and functional mechanisms of the ICC through which cases are initiated, investigated, and prosecuted. For this section contributes to better understanding how the Court works in practice with some illumination on how international justice is practically administered.

It also delves into the specific categories of crimes within the Court’s jurisdiction and analyzes a series of case studies to assess the effectiveness and practical impact of the ICC in fighting international crimes through its participation in major conflicts and prosecutions. These examples are valuable for providing real-world insights about its effectiveness in the international arena. It then evaluates critically the challenges and criticism faced by the ICC like the problem of jurisdiction, political interference, and enforcement limitations and ends with expert suggestions for enhancing the legitimacy, range, and efficiency of the Court in offering international justice.

In conclusion, the outcome of the research confirms that despite the fact that the ICC has been a significant institution in the maintenance of the principle of justice as well as in enhancing peace and harmony, It demands its long-term success to be based on increased international cooperation, political impartiality and institutional reform.

Keywords: International Criminal Court, Crimes against humanity, War Crimes, Global Justice

1. Introduction

Crimes such as war crimes, genocides and crimes against humanity are serious issues for the global community as such crimes remain a destabilising factor for the security and safety of communities, nations, and regions for decades. Investigation and oversight must not only be done by the internal bodies of states but also by other actors when such conflicts occur and human rights are violated. Due to a series of historical events, the International Criminal Court was brought into existence to secure human rights throughout the world. It was a significant development in the long struggle of the international community to initiate a permanent court to prosecute and punish war criminals and fill the void left by state criminal jurisdiction in this regard is the creation of the International Criminal Court. With 23 years now lapsed since the establishment of the International Criminal Court, it remains uncertain whether or not the court has met the expectations of global society. Notwithstanding the substantial criticism that ICC has received, there has been considerable improvement regarding the protection of human rights. The ICC needs major changes, as per some, but others argue that it can indeed be an invaluable tool in fighting international criminals and legal violations. In this research paper, the effectiveness of the ICC and its evolution since it was established in 2002 have been examined.

2. About the Court

2.1 Establishment of ICC

The concept of an international criminal tribunal dates back over a century. After World War I, the Commission of Responsibilities at the 1919 Paris Peace Conference first proposed the creation of a tribunal to prosecute political leaders for international crimes. This idea resurfaced in 1937 at a League of Nations conference in Geneva, which resulted in the drafting of a convention for a permanent court to prosecute acts of international terrorism. However, despite being signed by 13 states, none ratified the agreement, and it never entered into force.

Following World War II, the Allied powers established two landmark tribunals to prosecute Axis powers: The International Military Tribunal in Nuremberg, and The International Military Tribunal for the Far East in Tokyo. In 1948, the United Nations General Assembly acknowledged the need for a permanent international criminal court to address atrocities like those committed during the war. The International Law Commission (ILC) began drafting a statute in the early 1950s, but Cold War tensions halted progress.

The push for a permanent court gained new traction in 1989 when A. N. R. Robinson, proposed the creation of a court to address international drug trafficking. In response, the UN General Assembly tasked the ILC with drafting a new statute for a permanent court.

Around the same time, large-scale atrocities during the Yugoslav Wars and the Rwandan Genocide led to the creation of two ad hoc tribunals: The International Criminal Tribunal for Rwanda (ICTR) in 1994 and The International Criminal Tribunal for the Former Yugoslavia (ICTY) in 1993. These tribunals reinforced the need for a permanent and consistent mechanism to prosecute serious international crimes.

In 1994, the ILC submitted a final draft statute to the General Assembly, which in turn established the Ad Hoc Committee on the Establishment of an International Criminal Court. In June 1998, a diplomatic conference in Rome led to the adoption of the Rome Statute on 17 July 1998, establishing the framework for the International Criminal Court (ICC). It was adopted by 120 countries, with 7 voting against, including the U.S., China, and Israel. Israel opposed a clause on the transfer of population into occupied territory, viewing it as politically biased. Despite objections, the UN General Assembly endorsed the statute in 1999 and 2000. After receiving the required 60 ratifications, the Rome Statute came into force on 1 July 2002, officially founding the ICC.1

2.2 Structure of the ICC2

The ICC is composed of four organs: the Presidency, Chambers, Office of the Prosecutor, and Registry. Every one of these organs has an own function and purpose.

(i) The Presidency

The three judges who make up the Presidency—the President and two Vice-Presidents—are chosen by an absolute majority of the Court’s eighteen justices to serve a maximum of two three-year terms. With the exception of the Office of the Prosecutor, the Presidency is in charge of running the Court. It assists in the organisation of the judges’ work and serves as the Court’s public face. Other duties, like making sure the Court’s sentences are enforced, fall under the purview of the Presidency.

(ii) The Chambers3

The Court’s three judicial divisions—the Pre-Trial Division, which has seven judges; the Trial Division, which has six judges; and the Appeals Division, which has five judges—are home to the 18 judges, including the three judges of the Presidency. They are allocated to the following chambers:

  • The Appeals Chamber, which is made up of the five judges of the Appeals Division
  • The Pre-Trial Chambers, which are each made up of one or three judges
  • The Trial Chambers, which are each made up of three judges.

(iii) The Office Of The Prosecutor

One of the Court’s independent branches is the Office of the Prosecutor. Its mandate is to receive and analyse information on situations or alleged crimes within the jurisdiction of the ICC, to analyse situations referred to it in order to determine whether there is a reasonable basis to initiate an investigation into a crime of genocide, crimes against humanity or war crimes, and to bring the perpetrators of these crimes before the Court.

To fulfil its mandate, the Office of the Prosecutor is composed of three divisions:

  1. The Investigation Division, which is responsible for the conduct of investigations (including gathering and examining evidence, questioning persons under investigation as well as victims and witnesses).
  2. The Prosecution Division, which has a role in the investigative process, but whose principal responsibility is the litigation of cases before the various Chambers of the Court.
  3. The Jurisdiction, Complementarity and Cooperation Division, which, with the support of the Investigation Division, assesses information received and situations referred to the Court, analyses situations and cases to determine their admissibility and helps secure the cooperation required by the Office of the Prosecutor to fulfil its mandate.

(iv) The Registry

The Registry assists the Court in holding unbiased, open, and equitable trials. Supporting the Chambers and the Office of the Prosecutor administratively and operationally is the Registry’s primary duty. It also supports the Registrar’s activities in relation to defence, victims, communication, and security matters. It ensures that the Court is properly serviced and develops effective mechanisms for assisting victims, witnesses, and the defence in order to safeguard their rights under the Rome Statute and the Rules of Procedure and Evidence. The Registry is primarily in charge of the ICC’s public information and outreach initiatives since it is the Court’s official communication route.

3. Working of ICC

The International Criminal Court derives its jurisdiction from its founding treaty, called the Rome Statute. It can decide over 4 main crimes, which are, namely, genocide, crimes against humanity, war crimes, and crimes of aggression. Such crimes come under ICC jurisdiction when they were committed by a State Party national or in a State Party’s territory or in territory of a state which has accepted the jurisdiction; or when the UNSC refers a case to the ICC. For this jurisdiction, there is a certain legal process that is to be followed according to Articles 62 to 76 of the Rome Statute, just like any other municipal court, although it may not be the same. The process of ICC is divided as follows4:

(i) Preliminary examinations

The Office of the Prosecutor, one of the organs of ICC, needs to make observations and understand the given facts, that is, a preliminary examination. With these observations, it needs to be determined whether the crimes so alleged fall within the ICC’s jurisdiction and whether there is sufficient evidence, whether incriminating or exonerating, of these crimes. The ICC also needs to determine whether it would be interest of justice and interest of the victims. These requirements must be met before an investigation can be opened for these sets of facts. The legal process then can continue depending on the findings of the Prosecution, whether an investigation is undertaken or not.

(ii) Investigation

The prosecution, based on its findings, conducts an investigation. It gathers evidence and identifies a suspect. Based on its investigation and its respective conclusions, the Prosecution requests the ICC to issue an arrest warrant or a summons to appear. However, the arrest to be made is made by the respective countries, and the suspect is transferred to the ICC. But the suspect can also appear voluntarily after the summons is issued, or else an arrest warrant is issued.

(iii) Pre-trial stage

This stage begins when the suspect appears, whether by arrest or voluntarily. Initially, after the suspect’s appearance, the three pre-trial judges confirm the identity of the suspect and explain the charges to the suspect and make sure that they are understood.

With this, the hearings begin for confirmation of charges. The prosecution, defence and the legal representative of the victims present their respective submissions, and after hearing them, the judges determine whether there is enough proof for the case to proceed to trial. This determination by the judges is usually done within 60 days.

This stage does not begin if the suspect does not appear voluntarily or is not arrested. The respective submissions can still be made, but a hearing cannot begin.

(iv) Trial stage

Succeeding the pre-trial stage and the determination of the charges and basic evidence to proceed to trial, the three trial judges, that is, the trial chamber, consider the evidence given by the prosecution. The prosecution must prove the suspect’s guilt beyond reasonable doubt.

The judges, after the consideration of evidence, issue a verdict of either guilty or not guilty. If the suspect is found guilty, a sentence may be given up to 30 years or imprisonment for life under exceptional circumstances. If the suspect is found not guilty due to insufficient evidence, the case is closed, and the accused is acquitted and released.

Both these verdicts are subject to appeal by either of the parties. It can also be reopened by presenting new evidence by the prosecution. Reparations may also be ordered for the victims by the judges.

(v) Appeals

An appeal lies on the verdict so given by the Trial Chamber by either of the parties. The victim and the convict can also appeal for reparations. Such appeal goes to a five-judge Appeals Chamber of the ICC. The decision, thereon, can be upheld, amended or reversed. This decision becomes the final decision unless a re-trial is ordered.

(vi) Enforcement

Finally, after the decision so given by the trial chamber or the appeal chamber, if an appeal was so filed, the verdict is to be enforced. If a sentence was given, it will be served in the countries that have agreed to enforce sentences by the ICC, or the person is released if the verdict was not guilty. This concludes the trial process.

The jurisdiction of the ICC is to complement the municipal or national criminal systems. The ICC jurisdiction does not replace the national jurisdiction to try such crimes but is only affected when the States are not willing or unable to do so. The ICC relies on the cooperation of the national states for arrests, transferring such arrested people to detention centres of the ICC, and overall enforcement of the sentences. The ICC works with both state parties and non-state parties and particularly with the host state, the Netherlands. The state parties to the Rome Statute gather once a year to give management oversight, and the state parties are the ones who provide most of the funding, along with other voluntary contributions.

Apart from the trial process, there are certain principles that the court follows:

  1. A fair trial for all suspects and accused.
  2. Since the office of the prosecutor is an independent organ of ICC, it ensures fairness as well.
  3. The defendants are given the right to understand the proceedings in a language they understand and follow. Along with the basic rights of the accused, that is, innocent until proven guilty beyond a reasonable doubt.
  4. The voices of the victims are heard because of the right to participate in the proceedings, with the help of the Office of Public Counsel for the Victims (OPCV). Along with protection programmes for their protection.

The trial process, as discussed, with the principles of justice, is not that different from most of the established national systems of justice. However, the enforcement differs fundamentally, as the court itself is not the one enforcing, but it is the nation states.

4. Crimes Under Jurisdiction of the Court

Article 5 of the Rome Statute5 lays down,

“The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes:

(a) The crime of genocide;
(b) Crimes against humanity;
(c) War crimes;
(d) The crime of aggression.”

(i) Genocide

Article 6 of the Rome Statute6 enactment provides that, “genocide” means any of the following acts committed with the intent to destroy, in whole or in part, a public, racial or ethnical group

  1. Killing members of the group;
  2. Causing serious fleshly or internal detriment to members of the group;
  3. Designedly causing living conditions that are intended to affect in the physical destruction of the group, in whole or in part;
  4. Imposing measures designed to prevent births within the group;
  5. Forcefully transferring children of the group to another group.

(ii) Crimes against humanity

Article 7 of the Rome Statute7 provides information on crimes against humanity that means any of the following acts committed as part of a wide or methodical attack directed against a population, with knowledge of the attack

  1. Killing members of the group;
  2. Decimation;
  3. Enslavement;
  4. Forced expatriation or transfer of populations;
  5. Imprisonment or other severe privation of physical liberty not else amounting to imprisonment;
  6. Torture;

(iii) War crimes

Article 8 of the Rome Statute8 delineates that the court has governance over the war crimes, especially when similar war crimes are committed in pursuit of a plan, policy, or expansive prosecution of similar crimes.

For the sake of this Statute, “war crimes” means

  1. Serious violations of the Geneva Conventions of 12 August 1949, specifically acts against persons or property defended under the provisions of the applicable Geneva Convention; which includes voluntary homicide, torture, or inhuman treatment, including enforced natural trials, massive destruction, or appropriation of property not justified by military necessity and compelling an internee of war or other defended persons to serve in the fortified forces of a hostile power among others.
  2. Other serious violations of the transnational laws and customs of transnational fortified conflict, within the frame of transnational law established which includes directing attacks with the ill intent against the mercenary population or individual civilians not taking part in conflict, directing attacks against mercenary objects, i.e., objects that are not military objects, killing or wounding dogfaces of the opposing side by misleading or cunning conduct and forcing or enlisting children below the age of fifteen into the public army or employing them in direct combat among others.
  3. In the event of a fortified conflict not of a transnational character, grave breaches of Composition 3 common to the four Geneva Conventions of 12 August 1949, denoting acts committed against persons taking no active part in the conflict, including members of the fortified forces who have laid down their arms or are incapacitated due to sickness, injuries, detention, or any other cause. It covers fortified conflicts of anon-international character and does not cover situations of an internal disturbance or pressure, like screams, sporadic acts of violence, or other analogous disturbances.
  4. Other serious breaches of the laws and customs applicable to fortified conflicts not of a transnational character, as they are set forth in transnational law. It is applicable to fortified conflicts not of a transnational character and does not extend to internal disturbances and pressures similar as screams, insulated violent incidents, or other acts of analogous character. More specifically, it covers cases of grossly disproportionate response where there has been long term fortified conflict within the home of a state by government colours with fortified groups or among similar groups.
  5. Force, sexual slavery, forced harlotry, enforced gestation, executed sterilization, or any other form of similar graveness sexual violence
  6. Persecution directed against any identifiable group or groups on political, ethnical, public, ethnical, artistic, religious, or gender grounds or on other grounds generally honoured under transnational law as taboo under the principles of humanity, in connection with any act appertained to in this paragraph or any crime within the governance of the Court;
  7. Executed exposure of persons;
  8. The crime of intolerance;
  9. Other inhuman acts causing great suffering or serious fleshly or internal injury.

4.1 Jurisdiction Ratione Temporis

Article 11 of the Rome Statute defines the temporal jurisdiction (jurisdiction ratione temporis) of the International Criminal Court (ICC). It provides that the ICC can only prosecute crimes committed after the Rome Statute came into force on July 1, 2002.9 In the case of states joining later, the jurisdiction of the ICC extends only from the date of accession. This rule prevents the ICC from exercising its jurisdiction retrospectively.

4.2 Preconditions to the Exercise of Jurisdiction

Article 12 of the Rome Statute states that when a State joins this Statute as a Party, it assumes the jurisdiction of the Court over the crimes as defined in the statute.10 The Court can exercise its jurisdiction where one or more of the following States are Parties to this Statute or have accepted the Court’s jurisdiction in accordance with

  1. The State where the alleged conduct occurred, or, if the crime was committed on a vessel or aircraft, the State of registration of that vessel or aircraft;
  2. The State of nationality of the person accused of the crime.

4.3 Exercise of Jurisdiction

The Court can exercise jurisdiction over an offence as envisaged under Article 1311 Provided it is in conformity with the terms of this Statute, if:

  1. A State Party refers a case to the Prosecutor if it seems that one or more of these crimes have been committed.
  2. The Security Council submits a matter to the Prosecutor, in which it seems that one or more of these crimes have been committed, in accordance with Chapter VII of the United Nations Charter;
  3. The Prosecutor opens an investigation into the crime.

4.4 Cooperation

The ICC is designed to complement national judicial systems, not replace them. It only prosecutes cases when States are unwilling or unable to genuinely prosecute the crimes themselves.12

The ICC does not have its own police force or enforcement mechanism. Instead, it relies on cooperation with States across the globe, particularly for tasks like making arrests, transferring detainees to the ICC detention centre in the Hague, freezing assets, and enforcing sentences.

Though the ICC is not part of the United Nations, it has a cooperation agreement with the UN. In cases where a situation falls outside the Court’s jurisdiction, the UNSC can refer the matter to the ICC, thereby granting it jurisdiction.

The Court maintains a strong partnership with its host country, the Netherlands, on practical issues like constructing the Court’s new permanent facilities, transferring suspects to the ICC Detention Centre, arranging their appearances before the Court, and handling various other tasks.

Additionally, countries, organizations, and civil society groups, including NGOs, collaborate with the Court in various ways, such as promoting awareness of the Court’s work and fostering support for its mission. The Court aims to enhance this ongoing cooperation through initiatives like seminars and conferences.12

So, to conclude the ICC offers a judicial platform for accountability where national courts are either unable or unwilling to prosecute such crimes, fostering justice, deterrence, and the rule of law across the world. Nevertheless, the Court is confronted with serious challenges, such as political opposition, lack of enforcement power, and non-cooperation from some states. But despite these obstacles, the ICC continues to be an important tool for ensuring that perpetrators of the most egregious crimes are brought to book and victims get recognition and redress.

5. Case Studies

ICC remains relevant in contemporary times and on various occasions has reaffirmed to uphold principles of justice to secure international peace and harmony among the states

The ICC remains relevant in contemporary times and on various occasions has reaffirmed to uphold principles of justice to secure international peace and harmony among the states. Here are few cases laws which indicate the same; the case of The Prosecutor v. Bosco Ntaganda establishes that ICC’s commitment to deter heinous crimes threatening international community by imposing stringent punishment such as imprisonment for thirty years, the case of Bejamin Netanyahu and Yoav Gallant serves that the court offers a neutral path in conducting investigation in one of world’s polarising conflict, additionally the case of Russia-Ukraine Conflict signals that even the world’s most powerful leader can face legal consequences. Further, the present alarming situation, as seen in the case Taliban in Afghanistan addressed by the Court, makes sure that the non-state actors like the Taliban can also be prosecuted.

5.1 The Prosecutor v. Bosco Ntaganda13

Born in Rwanda in 1973, Bosco Ntaganda, also known as “Terminator” or “Warrior” due to his active participation in combat, led several rebel groups suspected of committing atrocities in the Ituri district from the late 1990s. The crimes he committed were while he was in office when he was serving as the UPC’s top commander.

He and his troops were blamed for numerous crimes among some of which are murder, sexual slavery, slavery, recruitment and use of children, attacks against civilian on various occasions. Still, in 2012, he and some dissidents, amongst whom is he, attacked, and an insurgency broke out after he rebelled and they joined the M23 rebel army. In the subsequent year, M23 split along internal fault lines, sending Ntaganda and his men into exile to Rwanda.

The ICC first issued an arrest warrant against Ntaganda on 22 August 2006, and another on 13 July 2012. While on 22 March 2013, Bosco Ntaganda himself voluntarily surrendered to the ICC, he is indigent person and costs of his defence are borne by the Court.14

On July 8, 2019, The ICC’s Trial Chamber VI after hearing all the evidences submitted held that Mr. Ntaganda was directly liable for some elements of three crimes: murder, as both a crime against humanity and a war crime, and persecution as a crime against humanity. For the other elements of these crimes, he was convicted as an indirect perpetrator. Thus, sentencing him to 30 years of imprisonment. Furthermore, Trial Chamber VI ordered on March 8, 2021, that the Trust Fund for Victims be used to provide restitution to victims. The Chamber found that he was responsible for a total reparations amount of $30,000,000 USD.15

The Prosecutor and Mr. Ntaganda appealed the judgment, and Ntaganda also appealed against the sentencing judgment. Although on 30 March 2021, the ICC Appeals Chamber upheld both the conviction and reparations thereby the judgments became final. He will stay in the ICC jail in The Hague.16

This is a historic case of international criminal justice, especially for its historic decisions on sexual violence in war. It was the ICC’s first conviction for sexual slavery. It was also unique in that Ntaganda surrendered to the ICC of his own accord in 2013 by walking into the U.S.

For famous fugitives, an embassy in Rwanda is a rare sight. He was convicted in 2019 and sentenced to 30 years in prison, the longest sentence the ICC had ever imposed at the time. Following an appeal, the sentence was upheld in 2021. The ICC also granted $30 million in reparations to his victims, which is the second highest amount the court has ever granted.

5.2 Russia-Ukraine Crisis

On February 24 2022, Russia started a war against Ukraine. From the beginning of the invasion Russian troops have committed atrocities against civilians and their property. They’ve used banned weapons sexually abused civilians, mistreated prisoners of war, and carried out random attacks. What’s more Russian media has spread anti-Ukrainian propaganda, which some see as encouraging genocide. Additionally, anti-Ukrainian propaganda has been disseminated by Russian media, which could be interpreted as inciting genocide. There were approximately 400 dead men, women, and children found with evidence of torture and sexual brutality, and the streets of the de-occupied parts of the Kyiv oblast, especially Bucha, were found littered with civilian corpses. Disturbing videos and eyewitness accounts emerged from these locations. By starting the war against Ukraine Russian leader Vladimir Putin and his closest associates have carried out acts of aggression. Numerous members of the global community have called for Russia to answer for its crimes. They argue that Putin other Russian officials, and soldiers involved in the atrocities should face individual criminal charges.

The Rome Statute negotiated in 1998, forms the basis of the court’s authority. Neither Russia nor Ukraine has signed the Rome Statute. However, by entering two Article 12(3) declarations, one in 2014 regarding alleged crimes during the Maidan protests and the second following the occupation of Crimea and the start of Russia’s proxy war in eastern Ukraine, Ukraine has acknowledged the Court’s ad hoc jurisdiction and the court does have jurisdiction over war crimes, crimes against humanity, and genocide committed in Ukraine. Since Russia is not a member to the Rome Statute, which established the ICC, the ICC lacks jurisdiction over crimes committed entirely within Russia by Russian people. However, anyone who is accused of committing crimes under its jurisdiction on Ukrainian territory, including Russian nationals, may still face proceedings from the ICC. With the exception of crimes of aggression, the ICC’s jurisdiction is still restricted to war crimes, crimes against humanity, and genocide.

In light of the circumstances in Ukraine, Pre-Trial Chamber II of the International Criminal Court issued arrest warrants for Mr. Vladimir Vladimirovich Putin and Ms. Maria Alekseyevna. The warrants were issued in Lvova-Belova on March 17, 2023, on the basis of a reasonable suspicion that each suspect is accountable for the war crimes of unlawful population transfer and unlawful population deportation from occupied areas of Ukraine to the Russian Federation, which injure Ukrainian children.17 On March 5, 2024, arrest warrants were also issued for two individuals: Mr. Sergei Ivanovich Kobylash, a Lieutenant General in the Russian Armed Forces who served as the Commander of the Aerospace Force’s Long-Range Aviation, and Mr. Viktor Nikolayevich Sokolov, an admiral in the Russian Navy who was then the Commander of the Black Sea Fleet.18

On June 24, 2024, arrest warrants were issued for two additional people, Mr. Valery Vasilyevich Gerasimov and Mr. Sergei Kuzhugetovich Shoigu, in connection with the Ukrainian situation for alleged international crimes committed between at least October 10, 2022, and March 9, 2023.19

Ukrainians hold the International Criminal Court (ICC) in high regard. They see the arrest warrant that was issued last spring against Russian dictator Vladimir Putin as a major step in the direction of international justice and assistance for the Ukrainian people. Putin has little prospect of being detained or convicted for these crimes because the ICC relies on state cooperation to carry out arrest orders and lacks enforcement or police authority. Furthermore, without Putin and Lvova-Belova in custody, a trial or conviction cannot take place since it cannot try people in their absence. As a result, many see his warrant as symbolic because the ICC is depending on the symbolic role of international criminal law by issuing and unlocking these arrest orders. In addition to publicly denouncing and condemning Putin and Lvova-Belova for committing grave crimes, it is teaching other world leaders and the public that such behaviour is not acceptable.20

The indictment has already made it more difficult for Putin to visit other countries and go to significant diplomatic gatherings. South Africa, the host country, pushed Putin to skip the 2023 BRICS summit, forcing him to participate virtually with the leaders of Brazil, India, China, and South Africa. Even in the absence of Putin’s arrest, some analysts argue that the ICC’s warrant solidifies Russia’s reputation as a worldwide outcast; he also did not attend the Group of Twenty meeting in Brazil in 2024. Approximately forty nations are debating the idea of establishing a special tribunal specifically for the purpose of prosecuting Russia for the alleged crime of invasion against Ukraine.21

5.3 Benjamin Netanyahu and Yoav Gallant case22

The Pre-Trial Chamber of the ICC has directed Israeli Prime Minister Israeli Prime Minister Benjamin Netanyahu and former Israeli Defence Minister Yoav Gallant were ordered to stand trial by the ICC’s Pre-Trial Chamber in November 2024 on allegations of war crimes and crimes against humanity.

According to the court’s verdict, there are good reasons to believe that Netanyahu and Gallant intentionally and willingly denied the civilian population of Gaza access to necessities for survival, Pre-Trial Chamber I stated that it considered there were reasonable grounds that from “8 October 2023 until at least 20 May 2024” Netanyahu and Gallant had criminal responsibility as co-perpetrators for having committed the acts jointly with others: the war crime i.e., starvation as a method of warfare; and the crimes against humanity of murder, persecution, and other inhumane acts for the war crime of intentionally directing an attack on the civilian population. Israeli President Isaac Herzog said that the warrants had transformed the legal system itself into a human shield for Hamas’ crimes against humanity, while Israeli officials denounced the accusations as antisemitic. Israel—and the United States, where Netanyahu often travels, are not members of the ICC, so neither of the states are obligated to arrest him if he is within their boundaries. This places the case within the scope of an international armed conflict and an occupation.

This resulted the Chamber issuing arrest warrants for war crimes under international armed conflict law. Also, it found that the alleged crimes against humanity were part of a broad and systematic attack on Gaza’s civilian population. Israeli officials have criticized the allegations as antisemitic, and Israeli President Isaac Herzog said the warrants have turned the very system of justice into a human shield for Hamas’s crimes against humanity. Israel—and the United States, where Netanyahu often travels—are not members of the ICC, so neither of the states are obligated to arrest him if he is within their boundaries.

5.4 Taliban in Afghanistan

The Taliban is a fundamentalist group that is predominantly Pashtun and Islamic. There had been conflict in Afghanistan since the 1970s, but in 1996, the Taliban seized control, and the Al-Qaeda leader, Osama Bin Laden, established his organisation’s headquarters. On September 11, 2001, the tragic attack on the US happened, wherein, there was hijacking and crashing of four US jetliners which led to death of about 3000 people.23 The terrorist group Al-Qaeda, led by Osama bin Laden, was found to be responsible for this attack. So, the US, along with other NATO and alliance forces, launched attacks against both Al-qaeda and Taliban forces in Afghanistan and brought their regime to an end.24 Up until 2021, US forces tried to keep the Taliban from regaining control in Afghanistan, but after the US troops retreated after the Doha Agreement, the Taliban regained control in August of 2021 and has been in control since then as a functional government.25

This regime of the Taliban since 2021 constitutes many crimes, including violation of basic human rights for all, harsh interpretations of Islamic law disrespecting rights of women and other religious minorities, lack of food supplies and economic crisis.26

The Taliban has prohibited basic liberties of women by banning education, banning working as teachers or as part of NGO’s, arresting for violating such policies, and only allowing them to appear with a male chaperone with an increase in child marriage rates.27 Apart from this, the economy has taken a hit. There have been curbs on freedom of speech and detentions of protestors or human rights defenders including extrajudicial killing, arbitrary arrests, torture and brutal treatment, deaths and enforced disappearances.28

With regards to the jurisdiction, Afghanistan comes under the jurisdiction of ICC because it deposited its instrument of accession to the Rome Statute in 2003, thus, any crimes under the ICC jurisdiction that happens in Afghanistan can be tried by ICC.29

Additionally, A preliminary examination related to Afghanistan has been public since 2007 and focused on crimes against humanity of murder, and imprisonment or other severe deprivation of physical liberty; and the war crimes of murder; cruel treatment; outrages upon personal dignity; the passing of sentences and carrying out of executions without proper judicial authority; intentional attacks against civilians, civilian objects and humanitarian assistance missions; and treacherously killing or wounding an enemy combatant and the existence and genuineness of national proceedings concerning these crimes. In March of 2020, the ICC’s Appeals Chamber decided to launch an investigation by the Office of the Prosecutor into the alleged crimes in Afghanistan. This decision to the appeal by the prosecutor to get permission to investigate after the preliminary examination.30 In 2024, the Office of the Prosecutor also received referrals from Chile, Costa Rica, Spain, France, Luxembourg, and Mexico. Following the investigation, the Office of the Prosecutor, in January of 2025, filed applications for warrants of arrest for crimes against humanity, against the Supreme leader of the Taliban, Haibatullah Akhundzada, and the Chief Justice of the “Islamic Emirate of Afghanistan”, Abdul Hakim Haqqani.31

Presently, after the issuance of these arrest warrants, the UN as well as Amnesty International issued their statements extending their support. But leaders in Afghanistan have rejected the ICC’s jurisdiction for the same and stated that the decision to join the Rome Statute was unlawful

6. Criticism & Challenges

(i) Weak Record of Prosecutions: The ICC’s prosecution record has been poor. This has raised concerns about the court’s efficacy and its capacity to provide victims of war crimes, crimes against humanity, and genocide with justice. Of the thousands of potential cases that could have been investigated by the International Criminal Court (ICC), only 44 individuals have been indicted, with 45 cases currently before the ICC. Further, only 14 out of the 45 have resulted in a complete proceeding, and only nine were convicted.32

(ii) Discord Among Judges: Judges at the ICC have shown a certain amount of disunity with one another and applied substantive law inconsistently which has led to conflicting rulings and created ambiguity in the establishment and evolution of legal standards in the area of international criminal law. The strongly worded dissents, in which judges accuse one another of unfairness or of acting beyond their authority, do demonstrate a level of animosity that threatens to undermine the ICC’s perceived legitimacy, even though some disagreement and dissent among judges is acceptable and does not indicate a lack of collegiality.33

(iii) Strained relationship with powerful nations: Relationships between the ICC and the world’s superpowers, such as China, Russia, and the US, have not always been easy. Under George W. Bush, the United States in particular had a strained relationship with the ICC. when the American Servicemembers Protection Act of 2002 was introduced with the intention of banning American collaboration with the ICC. The Trump Administration has been openly hostile to the court in more recent times. At the time, John Bolton was the National Security Advisor. He described the court as having “no jurisdiction, no legitimacy, no authority.”34

(iv) Extreme dependence on state parties: The Court cannot succeed without the active and unwavering support of states parties, both verbally and more importantly in tangible actions. Especially when it comes to the crucial matter of the accused’s arrest and surrender, as well as when addressing war crimes and crimes against humanity. In carrying out its mandate, the Court will almost certainly find itself torn between the opposing extremes of law and human rights and ruthless power politics. As a result, negative political winds or even political criticism of all hues will frequently continue to impede the Court’s functioning.35

(v) Logistical, Geographical, and Resource Limitations: The tremendous difficulties of conducting investigations and gathering evidence about mass crimes perpetrated in areas that are thousands of kilometres away from the Court, impossible to access, unstable, and unsafe, represents a very serious factual limitation. Investigating in Uganda, the Democratic Republic of the Congo, the Central African Republic, or Darfur involves logistical and technical challenges that no other prosecutor or court has ever encountered.36

(vi) Addressing Concerns in ICC Investigations: Concerns have also been raised regarding the impartiality of investigations and case selection, particularly in relation to the Central African Republic, Democratic Republic of the Congo, and Uganda. In these incidents, the governments of the countries presented the matter to the ICC, and despite numerous and well-documented accusations of crimes perpetrated by government officials and the armed services, no prosecutions have been brought against them.

(vii) Ensuring State Cooperation and Compliance: Making sure the parties to the ICC fulfil their obligations is the difficult part. It is the responsibility of each state party to fulfil their duties under the Rome Statute, which include full cooperation with the ICC and the ability to conduct national investigations and prosecutions of the offences. However, the majority of states have not yet passed comprehensive laws. The Agreement on Privileges and Immunities is still pending ratification by 50 states parties. Few states have reportedly signed witness relocation agreements, and only eight states parties have signed enforcement of sentences agreements.

7. Recommendations

The following suggestions shall be helpful in enhancing the justice that the International Criminal Court administers:

(i) Enhance State Cooperation

The enforcement of verdicts of the ICC, as well as arrests, witness protection, etc, is done by nation states since the ICC itself lacks the mechanism to do so. This results in failure to enforce because of non-cooperation by states or even their inability to do so. Thus, enhancing cooperation with nation states is essential by means of diplomatic pressure, agreements and encouraging domestic legislation.

(ii) Broaden Geographic and Political Balance

The ICC has been accused of political bias and targeting African leaders. So, the ICC should broaden their horizons and ensure that its investigations do not target certain areas or races and maintain a good balance amongst all areas and regions. More specifically it should also investigate the crimes by powerful states.

(iii) Improve Victim Participation and Reparations

The ICC should ensure that apart from punishing the guilty, the victims also receive the justice they deserve; this includes acknowledging them, providing a voice for them. So, the accessibility to the Trust Fund for Victims should be improved, and mechanisms for better active participation and feedback shall be developed. This also includes better witness protection programmes by strengthening them and funding them.

(iv) Enhance Institutional Efficiency

The trial process can be long and costly, which results in delay, which can ultimately be detrimental to the proceedings and the main objective, that is, justice. Thus, the ICC should ensure minimal delay, invest in more staff, prioritize cases, etc.

(v) Expand Jurisdiction Through Universal Ratification

Currently, many powerful countries like the United States, Russia, China, and India are not members of the ICC, which affects the accountability of the court. Thus, ICC should promote ratification by more countries, hopefully globally, to ensure expansion of its jurisdiction for more cases.

8. Conclusion

The object of the research paper was to understand the effectiveness of the ICC in combating crimes against humanity and war crimes. As discussed above, the ICC has many pending as well as decided cases. The case studies show the different spheres in which the jurisdiction of ICC operates, and the criticisms show the problems in its effectiveness. It can be said that the ICC in itself is enough to prosecute the crimes, but it has hitherto encountered numerous issues concerning the imposition of its judgments, particularly since it is dependent on the nation states for the same, though the majority of the world’s nations are not members of the Rome Statute. Furthermore, geographical and logistical limitations hinder investigations, and the few prosecutions it carries out have been questioned about its ability to provide justice to all its victims. Apart from these challenges, the ICC continues to play an important role in advancing world justice, such as in major cases against Bosco Ntaganda, Russia- Ukraine conflicts, and the Taliban. The ICC can improve its effectiveness by many means as discussed above, and if such are implemented, then it can operate better than before. Thus, the effectiveness, although a little hindered, does provide a remedy for the victims when the national states are unwilling or unable to take action.

References

1 International Criminal Court, ENCYCLOPÆDIA BRITANNICA, (July 10, 2025, 9:40 PM), https://www.britannica.com/topic/International-Criminal-Court

2 International Criminal Court https://www.icc-cpi.int/iccdocs/PIDS/docs/UICCGeneralENG.pdf accessed 26 March 2025

3 International Criminal Court, DOCTOR WITHOUT BORDER | THE PRACTICAL GUIDE TO HUMANITARIAN LAW, https://guide-humanitarian-law.org/content/article/3/international-criminal-court-icc/.

4 How the Court works, INTERNATIONAL CRIMINAL COURT, https://www.icc-cpi.int/about/how-the-court-works.

5 Rome Statute, Article 5.

6 Rome Statute, Article 6.

7 Rome Statute, Article 7.

8 Rome Statute, Article 8.

9 Rome Statute, Article 11.

10 Rome Statute, Article 12.

11 Rome Statute, Article 13.

12 Ibid.

13 The Prosecutor v. Bosco Ntaganda, ICC-01/04-02/06.

14 Case Information Sheet – The Prosecutor v. Bosco Ntaganda, INTERNATIONAL CRIMINAL COURT, (July, 2023), https://www.icc-cpi.int/sites/default/files/2024-08/NtagandaEng.pdf.

15 Ntaganda Case, INTERNATIONAL CRIMINAL COURT, https://www.icc-cpi.int/drc/ntaganda.

16 Ibid.

17 Situation in Ukraine, INTERNATIONAL CRIMINAL COURT, https://www.icc-cpi.int/situations/ukraine.

18 Ibid.

19 Ibid.

20 Rashmin Sagoo, ‘The ICC response to Russia’s war gives hope for justice’, CHATMAN HOUSE (March 19, 2023), https://www.chathamhouse.org/2023/03/icc-response-russias-war-gives-hope-justice.

21 Mariel Ferragamo and Claire Klobucista, The Role of the ICC, COUNCIL ON FOREIGN RELATIONS, https://www.cfr.org/backgrounder/role-icc#chapter-title-0-9.

22 Situation in the State of Palestine: ICC Pre-Trial Chamber I Rejects the State of Israel’s Challenges to Jurisdiction and Issues Warrants of Arrest for Benjamin Netanyahu and Yoav Gallant, INTERNATIONAL CRIMINAL COURT, https://www.icc-cpi.int/news/situation-state-palestine-icc-pre-trial-chamber-i-rejects-state-israels-challenges.

23 Griff Witte, Afghanistan War, BRITTANICA (February 10, 2025) https://www.britannica.com/event/Afghanistan-War.

24 Afghanistan War: How did 9/11 lead to a 20-year war?, IMPERIAL WAR MUSEUMS, https://www.iwm.org.uk/history/afghanistan-war-how-did-911-lead-to-a-20-year-war.

25 Lindsay Maizland, The Taliban in Afghanistan, COUNCIL ON FOREIGN RELATIONS (January 19, 2023) https://www.cfr.org/backgrounder/taliban-afghanistan.

26 Ibid.

27 Ibid.

28 Afghanistan- Events of 2023, HUMAN RIGHTS WATCH, https://www.hrw.org/world-report/2024/country-chapters/afghanistan.

29 Situation in the Islamic Republic of Afghanistan, INTERNATIONAL CRIMINAL COURT, https://www.icc-cpi.int/afghanistan.

30 Situation In The Islamic Republic Of Afghanistan, ICC-02/17-218

31 Ibid.

32 Goodman, S. J, The Effectiveness of the International Criminal Court: Challenges and Pathways for Prosecuting Human Rights Violations, 12 INQUIRIES JOURNAL, 2 (2020).

33 Milena Sterio, The Ukraine Crisis and the Future of International Courts and Tribunals, 55 Case W. Res. J. Int’l L. 479, (2023).

34 Ibid.

35 Hans-Peter Kaul, The International Criminal Court: Current Challenges and Perspectives, 6 WASH. U. GLOBAL STUD. L. REV. 575, 578(2007).

36 Ibid.

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