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Aaweg Charitable Trust

Task: Research Paper

Topic: INTERNATIONAL CRIMINAL COURT

Submitted by: Ashutosh Mishra

Content Page Number

Introduction 2-4

Literature Review 4-

Objectives 6

Hypothesis 6-7

Research Questions 7

Research Methodology 7

Analysis 7-12

Conclusion 12

Bibliography 12-13
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INTRODUCTION

“The moral arc of the universe is long, but it bends toward justice.”

-Martin Luther King, JR1

The International Criminal Court (“the ICC” or “the Court”) is a permanent international court
established to investigate, prosecute and try individuals accused of committing the most serious
crimes of concern to the international community as a whole, namely the crime of genocide,
crimes against humanity, war crimes and the crime of aggression. The International Criminal
Court (ICC) is located in The Hague. Its founding treaty, the Rome Statute, entered into
force on July 1, 2002. The Rome Statute is multilateral treaty which serves as ICC’s
foundational and governing document. It has 123 member countries and India is not one of
them (neither are China and the USA). The ICC has jurisdiction to prosecute individuals and is
independent of United Nations (UN). But it may receive case referrals from UN Security Council
and can initiate prosecutions without UN action or referral. The ICC is intended to complement
existing national judicial systems and it may therefore only exercise its jurisdiction when certain
conditions are met, such as when national courts are unwilling or unable to prosecute criminals or
when the United Nations Security Council or individual states refer investigations to the Court.
So far, nine investigations have been opened, and 36 individuals have been indicted. All of the
official investigations have been in Africa, and hence the ICC has been accused of selective
enforcement of western imperialism towards African countries
History: Before the ICC, four tribunals in particular showed that there was a need for a
permanent international court to serve the international community. Two of these tribunals took
place after World War II: the International Military Tribunal at Nuremberg (1945-1946) and the
International Military Tribunal for the Far East in Tokyo (1946-1948). These tribunals set out
largely to punish Nazi leaders and physicians in Germany, as well as the Japanese war criminals
who led their people to fight with Germany in the Second World War. The astonishment that
existed after the horrors of World War II led to the establishment of the United Nations
Convention on the Prevention and Punishment of the Crime of Genocide. The Convention
defined genocide as a crime under international law and it was under this convention that
the International Law Commission (ILC) was first permitted to explore the possibility of creating
an international judicial body for trying people for crimes of genocide.2

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A Testament of Hope.
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[ CITATION Int \l 16393 ]
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The ILC consists of thirty-four members who have a "recognized competence in international
law" and are nominated and elected by the UN General Assembly. 3 While the ILC continued to
conduct research and gather information, The Cold War, starting in the 1950s through the 1980s,
caused a decrease in focus and concern for the creation of an international court. The United
States and Russia, as well as their respective allies, developed a growing distrust of one another
and were constantly engaged in a power struggle, rendering the UN essentially inoperative on
many fronts. Consequently, the ILC was not able to make much, if any, progress towards
beginning discussions about an international judicial body with governments of the UN Member
States. As the Cold War was ending in 1989, the UN General Assembly requested that the ILC
"resume work on an international criminal court with jurisdiction to include drug
trafficking."4 This work began to gain momentum again, but in the meantime, the UNSC created
the third and fourth tribunals that further influenced the international community. Those were
the International Criminal Tribunal for Yugoslavia (ICTY), established in 1993, and
the International Criminal Tribunal for Rwanda (ICTR) established in 1994.5 Though the support
for these tribunals was strong, these ad hoc tribunals were, and continue to be, very costly. The
ICTY had a budget of approximately $70 million, while Rwanda's tribunal had an annual budget
of approximately $40 million. These high financial costs made them less appealing to the UN
General Assembly and provided further evidence for the need of an established international
court to streamline funds and efforts. It was not until 1994 that the ILC finished drafting a statute
for the ICC and submitted it to the General Assembly. After that, an ad hoc committee met twice
in 1995 and created the Preparatory Committee to work towards a "widely acceptable
consolidated draft text." From 1996 to 1998, the committee had six plenary sessions in order to
debate and negotiate the potential court.6
Four major issues arose in the negotiations for creating the ICC. "First, the role of the [United
Nations] Security Council, second, the level of independence granted to the prosecutor, third, the
method by which states would accept the Court's jurisdiction, and fourth, the preconditions that
needed to be met in order for the Court to exercise that jurisdiction." 7 Some States remained
uncomfortable with the amount of power that was eventually granted to the Court, particularly
the United States. While the ICC is a fully independent body from the United Nations, the UN

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[ CITATION Uni \l 16393 ]
4
 International Criminal Court. Chronology of the International Criminal Court.
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 Benedetti, Fanny and John L. Washburn. "Drafting the International Criminal Court Treaty: Two
Years to Rome and an Afterword on the Rome Diplomatic Conference." Global Governance 5.1
(1999): 1-37.
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Benedetti, Fanny and John L. Washburn. (1999).
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[ CITATION Goo09 \l 16393 ]
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Security Council can delay investigations and prosecutions by passing resolutions supported by
at least nine of the UNSC members, as long as no permanent member of the UNSC vote against
the delay resolution. If a permanent member of the UNSC does not support the resolution, but
does not wish to vote against it either, they may abstain from the vote, therefore not affecting the
outcome. This delay that the UNSC can enact by passing a resolution is for a period of 12 months
that can be renewed annually, and could be viewed as a potential stalling tactic. The power that
the UNSC has to delay cases makes the ICC's independence somewhat questionable.
Finally, the Rome Statute was completed on 17 July 1998, creating the ICC and establishing how
the Court would be governed. The ICC has been in operation since 1 July 2002. The four years
between the completion of the Statute and the operationalization of the ICC was due to the delays
of countries ratifying the Statute. In order for it to be put into force, at least 60 governments
needed to ratify the Statute, which finally happened on 11 April 2002.8 During the months
between April and July 2002, a 5-person advance team was put in place to begin the process of
setting up the Court. Over the next year, the Assembly of States Parties elected the judges,
prosecutors, and a registrar.9 The States also established the first approved budget for the ICC of
approximately €53 million euros for the year 2004.  By 2011, the budget nearly doubled to over
€103 million.
There is a limited scope as to the types of cases the ICC tries and where the Court may assert
jurisdiction. The ICC tries cases against people accused of genocide, crimes against humanity,
war crimes, or crimes of aggression. Jurisdiction can be complicated in some situations, but
generally, the Court may only assert jurisdiction in states that have signed the Rome Statute.
Interestingly, the ICC cannot try cases for crimes committed before a State signed on to the
Statute. As of now, there are 123 members with Malaysia becoming the latest member after
joining ICC in the year 2019.

LITERATURE REVIEW
The Role of the International Criminal Court in Enforcing International
Criminal Law10- Philippe Kirsch

The first, he talks about the common misperception about the Court. The ICC does not have
universal jurisdiction. Its jurisdiction is limited to crimes committed on the territory of or by

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American University International Law Review- Volume 22, Issue 4.
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nationals of States which have voluntarily consented to its jurisdiction. These bases of
jurisdiction-territory of the crime and the nationality of the perpetrator-are the most firmly
established bases of criminal jurisdiction. The Court's jurisdictional regime recognizes the
special role of the Security Council in maintaining peace and security. Under the Statute, the
Security Council may refer situations to the Court so that it no longer has to create ad hoc
tribunals as it did for the former Yugoslavia and Rwanda. The Security Council has already
used this power when it referred the situation in Darfur, Sudan, to the Court Sudan not being
a Party to the Rome Statute. The Security Council, acting under Chapter VII of the U.N.
Charter, may also defer an investigation or a prosecution for a period of one year. The Court's
jurisdiction is also limited temporally. It has jurisdiction only over events since its Statute
entered into force on July 1, 2002. No crime committed before that time can be dealt with by
the ICC. The Court's subject matter jurisdiction covers the most serious international crimes.
In that sense, although obviously the ICC deals with the most serious violations of human
rights, it is not a human rights court in the traditional sense. It is a criminal court. It is a
criminal court that is limited to genocide, crimes against humanity, and war crimes. The
crimes contained in the Statute are well established in customary and conventional
international law as well as national laws. The Statute also provides that the Court has
jurisdiction over the crime of aggression, but the Court will not exercise this jurisdiction until
both a definition of aggression, and conditions for the exercise of jurisdiction are agreed
upon. This has to happen through an amendment to the Statute, agreed to by the States
Parties. Such amendment could occur at the earliest at a review conference to be held in
2009. Aggression was seen by many States as a symbolic crime-a crime that certainly was
central to proceedings after World War II. It was a general view among States that if
aggression were not committed, many other crimes would not be committed and therefore
aggression had to be part of the Statute. However, there was no agreement on how aggression
should be defined and there was certainly no agreement how to move from a declaration of
aggression by States as an act covered by public international law to proceedings covering
individuals having been involved in their crimes under international criminal law. Even
where the Court has jurisdiction, it will not necessarily act. This is the fundamental point that
has to be understood about the ICC. The ICC is a court of last resort. It is intended to act only
when national courts are unwilling or unable to carry out genuine proceedings. This is known
as the principle of complementarity. Under this principle, a case will be inadmissible if it is
being or has been investigated or prosecuted by a State with jurisdiction. In addition, a case
will be inadmissible if it is not of sufficient gravity to justify action by the Court. There is an
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exception under the principle of complementarity where the Court may act. This is when the
State is unwilling or unable genuinely to carry out the investigation or prosecution. For
example, if proceedings were undertaken solely to shield a person from criminal
responsibility-and that can take different forms, which are indeed spelled out in the Statute-or
if the proceedings were carried out in a manner inconsistent with an intent to bring the person
to justice. It follows from what I said earlier, from the concern of States to ensure that the
Court would be a purely judicial institution and would act in a purely judicial way, that the
guarantee of a fair trial and protection of the rights of the accused have paramount
importance before the ICC. The Statute incorporates the fundamental provisions of the rights
of the accused or the rights of the accused and due process common to national and
international legal systems. A particular feature of the ICC, which is different again from ad
hoc tribunals, is the treatment given to victims. Victims have of course participated in other
international proceedings, but largely as witnesses for the prosecutor or for the defense. In the
case of the ICC, victims may participate in proceedings even when not called as witnesses.
The Court also has the power to order reparations to victims including restitution,
compensation, and rehabilitation. The ICC has the obligation to take into account the part

OBJECTIVES

The basic understanding and analysis of the workings of the International Criminal Court is
the one of the basic objectives of the research paper. The researcher has kept in mind that
after reading the paper, the reader is going to get a better understanding of the International
Criminal Court.

HYPOTHESIS

The International Criminal Court is the last great international institution of the
Twentieth Century. It is no exaggeration to suggest that its creation has the potential to
reshape our thinking about international law. The establishment of the Court raises hopes
that the lines between international law and world order are blurring and that the
normative structure being created by international law might influence or even restrain
the Hobbesian order established by the politics of States.

After the various war trials of the second World War, Courts like International Criminal
Court seemed the only solution for the trials of the war crimes, crime against humanity
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and other crimes. Hence, the International Criminal Court was then a need of the hour.
Even in the modern world, where there is a state of war in one state or other, institution
like these helps in providing criminal justice to the people and nations.

RESEARCH QUESTION

The researcher has tried to restrict himself to the research topic with respect to the research
paper. Some of the research questions are:

 What is the Roman Statute?

 How is ICC different than International Court of Justice?
 What are the limitations of the of the International Criminal Court?

RESEARCH METHODOLOGY

The method used by the researcher for the task is secondary. The research is based on data
provided by the secondary sources like journal articles, and other secondary sources such as
book. The secondary nature of research is preferred over the primary because the data was
easily available in the books and the journal articles. Since it would have been very difficult
to collect the primary data under such conditions, the existing circumstances is one of the
main reasons for selecting the secondary source over the primary source.

ANALYSIS
The researcher has tried to find the answer to the above-mentioned research questions. About
the first question, On 17 July 1998, a conference of 160 States established the first treaty-
based permanent international criminal court. The treaty adopted during that conference is
known as the Rome Statute of the International Criminal Court. Among other things, it sets
out the crimes falling within the jurisdiction of the ICC, the rules of procedure and the
mechanisms for States to cooperate with the ICC. The countries which have accepted these
rules are known as States Parties and are represented in the Assembly of States Parties.
The Assembly of States Parties, which meets at least once a year, sets the general policies for
the administration of the Court and reviews its activities. During those meetings, the States
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Parties review the activities of the working groups established by the States and any other
issues relevant to the ICC, discuss new projects and adopt the ICC’s annual budget. On 17
July 1998, 120 States adopted a statute in Rome - known as the Rome Statute of the
International Criminal Court (“the Rome Statute”) - establishing the International Criminal
Court. For the first time
in the history of humankind, States decided to accept the jurisdiction of a permanent
international criminal court for the prosecution of the perpetrators of the most serious crimes
committed in their territories or by their nationals after the entry into force of the Rome
Statute on 1 July 2002.
The ICC is different than ICJ (The International Court of Justice). To make things easy, we
shall look at all the differences between the International Criminal Court and the International
Court of Justice point-wise, which can be seen below.

Relationship with the United Nations: The International Criminal Court is an independent
organisation and is not a part of the United Nations. However, they do work alongside each
other and the United Nations Security Council can refer to situations involving international
crimes to the ICC.

Meanwhile, the International Court of Justice is an integral part of the United Nations and
acts as its primary judicial branch. In fact, the United Nations Security Council enforces the
rulings and judgements passed by this court.

Members: Presently, the International Criminal Court has around 105 members. In 2017, the
African Union moved a resolution encouraging member nations to leave the ICC, because it
has been the subject of controversy due to allegations that it unfairly focuses only on the
developing world, and has only punished their leaders since its inception. Countries like
Burundi and South Africa, in fact, have gone through with their withdrawal. The next year, in
2018, Philippines decided to withdraw from the international organisation. 

Some countries, like the United States, have never joined the ICC due to concerns regarding
ceding their sovereignty to an international body. It is interesting to note that our country is
also not a part of the ICC.

The International Court of Justice has as its members all the members of the United Nations,
which means around 193 countries. Clearly, the ICJ is a bigger organisation than the ICC and
has a wider membership. 
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Derivation of authority: Both these organisations derive the authority to conduct their
affairs and perform their functions by certain international treaties or statutes that are signed
and ratified by nations of the world. The International Criminal Court derives its authority
from the Rome Statute, which was ratified and became executable in 2002. There are certain
countries, like the United States of America, which have ratified this treaty but have not
become a party to the ICC over concerns regarding the succession of their sovereignty and
power to the International Criminal Court.

On the other hand, the International Court of Justice derives its authority from the Charter of
the United Nations, which was signed by all the members of the UN in 1945. Countries that
are not members of the United Nations can also become parties to the ICJ, by ratifying the
Statute of the International Court of Justice, which currently has 50 signatories.

Scope of work: As the name suggests, the International Criminal Court deals with criminal
matters. It was established in 2002 by the Rome Statute to investigate and prosecute
individuals for committing international crimes of genocide, crimes against humanity, and
war crimes. No immunity is granted against this, not even to the Presidents in office at the
time- which is necessary, considering that top government officials are more often than not at
the root of war crimes and the like.

The website of the International Criminal Court talks in detail about the types of crimes it
adjudicates, which are as follows:

1. Crime of genocide, which means the specific intent to destroy wholly or partly a
national, ethnic, racial or religious group, either by killing its members or by other
means.
2. Crimes against humanity, which are serious violations involving large-scale
attacks against civilian populations. The Rome Statute mentioned 15 crimes
against humanity, such as murder, rape, enslavement, etc.
3. War crimes, which are grave breaches of the Geneva conventions in the context of
armed conflict between countries. These crimes include the use of child soldiers,
killing or torturing prisoners of war, etc. 
4. Crime of aggression, which is the use of armed force by one State against the
sovereignty, integrity or independence of another. This was added to the scope of
work of the ICC in July 2018.
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The ICC is “the court of last resort”. It exercises its powers when a state’s legal system
collapses, or when a government is the perpetrator of heinous international crimes.

On the other hand, the International Court of Justice is a civil court. It was established in
1946, and it settles legal disputes between the member-states and gives advisory opinions on
international legal issues referred to it by these member states in the form of the United
Nations General Assembly or other authorized international agencies. The matters it
generally deals with include sovereignty and boundaries, treaty violations, maritime disputes,
trade disputes, etc. It has emerged as one of the main guarantors of peace, security and co-
operation among states and for this reason, it is also called the World Court.

Jurisdiction: The territorial jurisdiction of the International Criminal Court is restricted to its
member states. Also, we can say that the International Criminal Court has jurisdiction to
investigate three areas of crimes, which are:

1. Crimes that were committed in member-countries.

2. Crimes that were committed by people from member-countries.
3. Crimes that the United Nations Security Council want the International Criminal
Court to investigate.

The ICC can also put individuals under trial who have been accused of committing
international crimes.

The territorial jurisdiction of the International Court of Justice is wider, as it can deal with
matters relating to any of the member states of the United Nations, which essentially means
almost all the countries in the world. The ICJ, however, can only entertain cases where states
appear before it. Unlike the ICC, it cannot try individuals. It also does not have jurisdiction to
deal with applications from non-governmental organizations, corporations or any other
private entities. It cannot provide them with legal advice or help them in their dealings with
national authorities. However, a state may take up the case of any of its nationals in the court
where the national has claimed to have suffered at the hand of another state. This is because
such a dispute becomes a dispute between two states, which the ICJ has jurisdiction over.
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Composition: The International Criminal Court is made up of 18 judges who make decisions
on international criminal matters, where each judge serves a nine-year term. They all come
from member-countries of the ICC however, no two of them can be from the same country. It
also has a prosecutor, who investigates crimes and, if he finds evidence suggesting that a
crime has been committed, he asks the judges to begin the trial. Apart from this, the
management of the ICC is taken care of by the Assembly of State Parties, who elect the
above-mentioned prosecutor and judges. Each member country of the International Criminal
Court has one vote in the Assembly. 

The International Court of Justice constitutes 15 judges where each of them, like those in the
ICC, also serve a nine-year term. They are elected by the UN General Assembly and the UN
Security Council, with 5 judges being elected every 3 years to ensure continuity within the
court. Also, no two judges can be from the same country. Interestingly, Justice Dalveer
Bhandari from India serves as a permanent judge in the ICJ. There is an informal
understanding that the seats for the judges shall be distributed according to geographic
regions, hence there are 5 seats for Western countries, 3 for African states, 2 for Eastern
European states, 3 for Asian states and 2 for Latin American and Caribbean states.

Funding: Like any other organisation, these two international legal bodies also require funds
to carry out their affairs. The source of their funding differs based on their status. The
International Criminal Court, being an independent body, mainly functions on contributions
made by state parties to the Rome Statute and voluntary contributions from the United
Nations, governments, individual corporations, etc. Meanwhile, the International Court of
Justice, being a part of the UN, is funded by the same. 

There are various limitations of the ICC. Some of them are:

 Absence of a Police Force: As a judicial institution, the ICC does not have its own
police force or enforcement body; thus, it relies on cooperation with countries worldwide
for support, particularly for making arrests, transferring arrested persons to the ICC
detention centre in The Hague, freezing suspects’ assets, and enforcing sentences.

 Less cooperation from the State: The State cooperation is problematic for several

reasons. It means that the ICC acts inconsistently in its selection of cases, is prevented
from taking on hard cases and loses legitimacy. It also gives the ICC less deterrent value,
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as potential perpetrators of war crimes know that they can avoid ICC judgment by taking
over government and refusing to cooperate.

 Imposition of death sentence: ICC cannot impose a death sentence; it can impose

lengthy terms of imprisonment of up to 30 years or life when so justified by the gravity of
the cases.

CONCLUSION
[ CITATION Phi07 \l 16393 ] The Researcher would like to say that the creation of the ICC was a
truly historic achievement, more than fifty years in the making, but its creation was only the
beginning. The Court now stands as a permanent institution capable of punishing perpetrators
of the worst offenses known to humankind. Indeed, as early as 2004, the U.N. Secretary
General stated that the Court "was already having an important impact by putting would-be
violators on notice that impunity is not assured and serving as a catalyst for enacting national
laws against the gravest international crimes."' Indeed, we at the Court who have a system of
monitoring media reports on issues of international criminal justice and a fairly broad set of
related issues do know how much notice is taken of the Court in many situations some
situations which are already under the jurisdiction of the Court and many other situations
elsewhere. To be fully effective, we must continue our efforts to ensure that the Court has the
support necessary to dispense justice as fairly and efficiently as possible. If there is only one
thing that you should retain from this piece, it is that the Court will do whatever it can to be
as credible as possible, but that it will only succeed with concrete, tangible support.

BIBLIOGRAPHY

 (n.d.). International Criminal Court. Chronology of the International Criminal Court. .

 (n.d.). United Nations. Statute of the International Law Commission. 21 November 1947. .

 Bock, A. (n.d.). Coalition for the International Criminal Court. History of the ICC.

 Goodliffe, J. a. ( (July, 2009)). A Funny Thing Happened on the Way to Rome: Explaining
International Criminal Court Negotiations. The Journal of Politics . The Journal of Politics ,
977-997.
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 Kaul, H.-P. ((Apr., 2005)). Construction Site for More Justice: The International Criminal Court
after Two Years. The American Journal of International Law , 370-384.

 Kirsch, P. (2007). The Role of the International Criminal Court in. American University
International Law Review, 540-547.