1

ALLIANCE SCHOOL OF LAW

ALLIANCE UNIVERSITY, BANGALORE

INTERNATIONAL CRIMINAL TRIBUNAL

INTERNATIONAL CRIMINAL COURTS: AN ANALYSIS OF ITS SUCCESSES

AND FAILURES
AND CHALLENGES FACED THE ICC TRIBUNALS FOR WAR CRIMES

By:
NAME: KARTHICK M
REG.NO: 16040141040
BALLB (HONS) SEC: B
BATCH: 2016-21

TO:
PROF. AMIT BHASKAR
ALLIANCE UNIVERSITY
 2

DECLARATION

I, declare that the seminar paper entitled “International Criminal Courts: An

Analysis of Its Successes And Failures And Challenges Faced The ICC Tribunals For
War Crimes” has been prepared by us and it is the original work carried out by

us for the fulfilment of requirements of BA., LLB (Hons) degree programme of

school of law, Alliance University. No part of this seminar paper has already
formed the basis of any examination/ evaluation of any degree.

Name: KARTHICK M

Reg. no: 16040141045

Batch: BA.LLB 2016-21

School of Law

Alliance University, Bangalore

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INTERNATIONAL CRIMINAL COURTS: AN ANALYSIS OF ITS

SUCCESSES AND FAILURES
AND CHALLENGES FACED THE ICC TRIBUNALS FOR WAR
CRIMES

ABSTRACT:

The international criminal court (ICC) is the last great international institution of the
20th century. The ICC is based on a treaty joined by one twenty three country. The
mechanism of Article 21 sub clause (3) which is more precise than that of ICT, could
encourage them to give greater weight to international human rights instruments. This paper
evaluates the need for the establishment of International Criminal Court that was to be
governed by the
Rome Statute. The fundamental aim to establish the court at the end of Cold War was to help
end impunity for the perpetrator of the most heinous crimes, such as, matters of genocide,
crimes against humanity and war crimes. However, since its establishment, the tribunal
established by the ICC is facing
various challenges to deal with war crimes and in prosecuting individuals who have
committed war crimes. The paper deliberates upon the successes and failures of the ICC and
particularly highlights the war crimes committed in Darfur and Uganda. The examples of
Sudan and Uganda have been discussed in detail and in doing so, an attempt has been made
to assess whether this leading judicial body has been able to achieve its goal of deterring
individuals from committing crimes and other brutalities or not. Towards the end of the
study, recommendations are put forward for an unbiased and effective
functioning of the court.

Keywords: ICC, ICTR, ICTY, War Crimes, Criminal Justice, Human Trafficking,
Human Rights, Rome Statue, International Justice.
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CONTENTS:
SL.N CHAPTER AND SUBCHAPTERS PAGE
O NO

i) DECLARATION 02
ii) ABSTRACT 03
iii) LIST OF ABBREVIATION 05
1 INTRODUCTION 06
1.1. Existing Legal situation 06
1.2. Aims and Objectives 07
1.3. Research Questions 07
1.4. Research Problem 07
1.5. Hypothesis 07
1.6. Research Methodology 07
1.7. Literature Review 08
2 ROLE OF INTERNATIONAL CRIMINAL COURT ON 09
WAR CRIMES

3 CHALLENGES OF ICC ON WAR CRIMES 11

4 SUCCESS AND FAILURES OF ICC ON WAR CRIMES 15

5 VARIOUS COUNTRIES ON ICC 18

6 CASE LAWS 20

7 CONCLUSION 22

8 BIBLIOGRAPHY 24
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LIST OF ABBREVATION:

ICC- INTERNATION CRIMINAL COURT

ICTY-THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE

FORMER YUGOSLAVIA
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1. INTRODUCTION:
The International Criminal Court (ICC) was established as a
consequence of the Rome Statute in 1998 with a purpose of prosecution of persons who
committed war crimes, crimes against humanity and genocide. According to Luis Moreno-
Ocampo, the first chief and first Prosecutor of the ICC and an Argentinean lawyer, the Rome
Statute guarantees that everybody has access to international justice and also ensures that
victims get justice and criminal are punished for the criminal acts.1 But, since its inception,
the court has faced considerable setbacks. It has been unable to gain the support of major
powers, including the United States, China, and Russia, who say it undermines national
sovereignty. Two countries have withdrawn from the court, and many African governments
complain that the court has singled out Africa. U.S. opposition to the ICC hardened under
President Donald Trump, and although the Joe Biden administration has taken a more
conciliatory approach, tensions remain. The ICC differs from the International Court of
Justice—the top UN court, which settles disputes between states and is also located in The
Hague—in that it prosecutes individuals. Its broad geographic reach and continuous operation
distinguish it from temporary international tribunals, such as that in Rwanda. The ICC differs
from the International Court of Justice—the top UN court, which settles disputes between
states and is also located in The Hague—in that it prosecutes individuals. Its broad
geographic reach and continuous operation distinguish it from temporary international
tribunals, such as that in Rwanda.

1.1. EXISTING LEGAL SIUATION:

International Criminal Court (ICC) was established as a consequence of the Rome
Statute in 1998 with a purpose of prosecution of persons who committed war crimes, crimes
against humanity and genocide.

The International Criminal Tribunal for the Former Yugoslavia (ICTY) was
established in 1993, and The International Criminal Tribunal for Rwanda (ICTW) in
1994, to investigate and punish the perpetrators of the egregious crimes committed during
those conflicts
1
https://www.icc-cpi.int/about/the-court
 7

1.2. AIMS AND OBJECTIVES:

1. The aim and objectives are to study about the challenges faced by ICC.
2. To analyse the success and failure faced by ICC.
3. To analyse the criticism faced by ICC.
4. To view the cases handled by ICC.

1.3. RESEARCH QUESTION:

1. What role did the International Criminal Court played during the war crimes?
2. What are the challenges faced by International Criminal Court for war crimes?
3. Whether International Criminal Court provides International or criminal justice?

1.4. RESEARCH PROBLEM:

The research problem is that are to be various challenges to deal with war crimes and in
prosecuting individuals who committed war crimes after the establishment of the ICC. The
success and failure of ICC particularly are to during the war crimes an how the ICC is funded
and what is the stand of US towards the International Criminal Court and also the criticisms
faced by the ICC and the short comings are addressed in this project.

1.5. HYPOTHESIS:

The ICC differs from the International Court of Justice—the top UN court, which
settles disputes between states and is also located in The Hague—in that it prosecutes
individuals. Its broad geographic reach and continuous operation distinguish it from
temporary international tribunals, such as that in Rwanda.

1.6. RESEARCH METHODOLOGY:

The methodology adopted for the purpose of conducting research on this paper is
purely Doctrine research. This project data has been collected from various secondary
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resource’s comprising of articles, books and journals and e-books and web sources,
judgements from cases and journals, which has been explained more detailed in the study

1.7. LITERATURE REVIEW:

This paper comprises so numerous information taken from multiple resources.

1. Minhas Majeed Khan, “Challenges Faced by the ICC tribunal for war crimes”. In
this article the author discussed about the various issues happen in the International
Criminal Court and the challenges that are to be faced by the International Criminal
Court and the criticisms that are faced by the ICC. And the war crimes in Uganda
and the war crimes in Darfur are discussed.

2. Daniel Donovan, “International Criminal Court: Successes and failures of the past
and goals for future”. The author states the success and failure that happened after
the establishment of the International Criminal Court and How the International
Criminal Court has formed and whether the Criminal Justice has been given or not.
And the ICC actions against the powerful state are discussed in this article.

3. Claire Felter, “Role of International Criminal Court”. The author states the role of
the international Criminal Court and the Court's Origins and what Countries are
members of the Court and what are the work of the court and the fund provided to
the court are detailedly discussed on this article.

4. Gwen P. Barnes, “International Criminal Court's Ineffective Enforcement

Mechanisms”. In this article the author discussed about the drawbacks of the
International Criminal Court and also discussed about the ineffective mechanism.
And how the developed and most developing countries are not a part of ICC and
among the 123 countries there are very few developing countries and whether
establishment of the International Criminal Court is effective or not is discussed in
the article.
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2. ROLE OF INTERNATIONAL CRIMINAL COURT:

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. 2

The ICC was established because of Some of the most heinous crimes were committed
during the conflicts which marked the twentieth century. Unfortunately, many of
these violations of international law have remained unpunished. The Nuremberg and
Tokyo tribunals were established in the wake of the Second World War. In 1948,
when the Convention on the Prevention and Punishment of the Crime of Genocide
was adopted, the United Nations General Assembly recognised the need for a
permanent international court to deal with the kinds of atrocities which had just been
perpetrated. The idea of a system of international criminal justice re-emerged after the
end of the Cold War.

However, while negotiations on the ICC Statute were underway at the United Nations,
the world was witnessing the commission of heinous crimes in the territory of the
former Yugoslavia and in Rwanda. In response to these atrocities, the United Nations
Security Council established an ad hoc tribunal for each of these situations. These
events undoubtedly had a most significant impact on the decision to convene the
conference which established the ICC in Rome in the summer of 1998. After being
ratified by more than sixty countries, the Rome Statute entered into force on July 1,
2002.

What are war crimes?

“War crimes” include grave breaches of the Geneva Conventions and other serious
violations of the laws and customs applicable in international armed conflict and in
conflicts “not of an international character” listed in the Rome Statute, when they are

2
https://www.cfr.org/backgrounder/role-international-criminal-court
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committed as part of a plan or policy or on a large scale. These prohibited acts

include:
▪ murder
▪ mutilation, cruel treatment and torture
▪ taking of hostages
▪ intentionally directing attacks against the civilian population
▪ intentionally directing attacks against buildings dedicated to religion, education, art,
science or charitable purposes, historical monuments or hospitals
▪ pillaging
▪ rape, sexual slavery, forced pregnancy or any other form of sexual violence▪ conscripting
or enlisting children under the age of 15 years into armed forces or groups or using
them to participate actively in hostilities.

How does the court work?

The ICC is based in The Hague, a city in the Netherlands that hosts many international
institutions and has field offices in several countries. The court carries out its investigative
work through the office of the prosecutor, led since 2021 by British lawyer Karim A.A.
Khan, who previously served as assistant secretary-general of the United Nations.
The court has eighteen judges, each from a different member country and elected by the
member states. It requires its members  to seek a gender-balanced bench, and the judiciary
must include representatives of each of the United Nations’ five regions. Judges and
prosecutors are elected to non-renewable nine-year terms. The president and two vice
presidents of the court are elected from among the judges; they, along with the registry,
handle the administration of the court.
The court has jurisdiction over four categories of crimes under international law:
 genocide, or the intent to destroy in whole or in part a national, ethnic, racial, or
religious group.
 war crimes, or grave breaches of the laws of war, which include the Geneva
Conventions’ prohibitions on torture, the use of child soldiers, and attacks on civilian
targets, such as hospitals or schools.
 crimes against humanity, or violations committed as part of large-scale attacks against
civilian populations, including murder, rape, imprisonment, slavery, and torture; and
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 crimes of aggression, or the use or threat of armed force by a state against the
territorial integrity, sovereignty, or political independence of another state, or
violations of the UN Charter.
The court can open an investigation into possible crimes in one of three ways: a member
country can refer a situation within its own territory to the court; the UN Security Council can
refer a situation; or the prosecutor can launch an investigation into a member state proprio
motu, or “on one’s own initiative.” The court can investigate individuals from non-member
states if the alleged offenses took place in a member state’s territory, if the non-member state
accepts the court’s jurisdiction, or with the Security Council’s authorization.
To open an investigation, the prosecutor must conclude after a preliminary examination that
the alleged crimes are of “sufficient gravity.” Once an investigation is opened, the
prosecutor’s office typically sends investigators and other staff to collect evidence. Any arrest
warrant or summons must be approved by the judiciary, based on information provided by
the prosecutor. A group of pretrial judges ultimately decides whether a case should be
brought to trial. Defendants may seek outside counsel to represent them, paid for, if
necessary, by the court. Convictions and sentences require the vote of at least two out of the
three judges on a trial bench; convicted defendants may appeal to the ICC’s appellate bench,
which is made up of five judges.
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 a case. Additionally, it only
exercises jurisdiction over crimes that occurred after its statute took effect in 2002.
The ICC differs from the International Court of Justice—the top UN court, which settles
disputes between states and is also located in The Hague—in that it prosecutes individuals.
Its broad geographic reach and continuous operation distinguish it from temporary
international tribunals, such as that in Rwanda.

3. CHALLENGES OF ICC FOR WAR CRIMES:

Like any other international body, ICC besides achieving success and in some case
failures, has been facing certain challenges when dealing with war crimes. There are various
spaces where the ICC has to recuperate and make its performance more effective. The ICC
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has been snowed under the problems of enforcement since its Inception. There have been
attempts at rectifying this problem, however the efforts were futile. ICC will not be able to
achieve its mission for dispensing justice for international crimes unless it develops
mechanism to surmount the underlying problem of enforcement.
War Crimes in Darfur
In 2003, the conflict in Darfur in Sudan attracted the attention of international community
when two rebel groups started fighting the government. The government was accused of
being biased and oppressive to the non – Arab population. The non – Arab population
reaction in the form of fighting back led to their ethnic cleansing by the government. In the
conflict between the two, hundreds of thousands were killed. The situation in Darfur
deteriorated and it was then referred by the Security Council to the ICC in March 2005 on the
report of the International Commission of Inquiry on Darfur. The UN Security Council
Resolution – 1564: 2004 had authorised this Commission.3
In April 2007, the former Minister of State for the Interior, Ahmed
Haroun, and a Janjaweed leader, Ali Kushayb, were issued arrest warrants by ICC for crimes
against humanity and war crimes.4 The Sudanese government strongly protested while
claiming that the ICC had no jurisdiction over it.23 Sudan is not a state party to the Rome
Statute. Consequently, it claims it does not need to execute the arrest warrant. The UNSC
ordered a commission to investigate and report violation of human rights in Sudan's Darfur
region in September 2004. The SC passed Resolution:1593 on March 31, 2005, which gave
the ICC jurisdiction to probe and indict alleged crimes committed in the region after
receiving the commission’s report. This resolution bounds Sudan to cooperate with the ICC.
Subsequently, The ICC filed charges against Omar al-Bashir for committing war crimes
and crimes against humanity on 14 July 2008. The Prosecutor of the ICC claimed that
Bashir had been the main architect of these atrocities. The arrest warrant of Omar al-Bashir
were issued by ICC for crimes against humanity and war crimes allegedly committed in
Darfur on the fourth day of March in the year 2009. The ICC has reiterated its stance that
Sudan should conform to the arrest warrant. As the first ever incumbent head of the state,
Bashir was charged by the court, however, there has been wide condemnation of the arrest

3
UN Security Council Resolution 1564 (2004).
4
International Criminal Court, “Warrants of arrest for the Minister of
State for Humanitarian Affairs of Sudan, and a leader of the
Militia/Janjaweed”, (May 2, 2007)
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warrant by the Arab League and African Union. Moreover, Bashir has been travelling
internationally. He made visits to Qatar and Egypt. Both of the countries declined to obey
the order of arrest issued by the ICC. Bashir also visited Chad in
2010. Chad, which is an ICC state party, but Chad also refused to
arrest Bashir.
There has been a call from Amnesty International to intercept Bashir’s plane during travel
because of which Bashir’s planes are always escorted by Sudanese jet fighters.5

However, Omar al Bashir has not been still apprehended and brought to justice. This has
serious repercussions for the ICC as it is casting doubts over the credibility of its
enforcement. The internal situation inside Sudan has been dicey which has also made the
execution of arrest warrants not possible. 6
Therefore, it is unlikely that Sudan will give in. Furthermore, the timing of the arrest warrant
was also very crucial as it was issued during the time when the war against terrorism was at
its peak. This further gave room to Sudan for crying foul. The lack of cooperation on
Sudan’s part is posing a serious challenge to ICC in Darfur. As elucidated before, some
states were also unwilling to enforce ICC’s decision. The ICC will prove to be redundant
the ICC lacks an independent enforcement agency, it principally depends on two factors to
effectively implement its decisions. Primarily, all member states are duty-bound to take
de rigueur steps to implement the decisions of ICC under the Rome Statute.
This will enable the ICC to use the resources of its member states in enforcing its
decisions. In condition of the state party failing to enforce ICC’s decision, ICC may refer the
matter to its governing body, the Assembly of member states. It will not be
out of place to mention that the support from member states to the
ICC is contingent largely upon the image of ICC as a trustworthy
and highly regarded institution.
The ICC can build and maintain this image by being legally sound and impartial. The ICC's
lack of ability to take in account any of these objectives has ensued ineffectual trials. UN

https://www.researchgate.net/publication/309842808_International_Criminal_Court_ICC_An_Analysis_of_its
_Successes_and_Failures_and_Challenges_Faced_by_the_ICC_Tribunals_for_War_Crimes
6
Mohammed Nureldin Abdallah, “Kenyan court issues arrest order for
Sudan's Bashir”. Availble at:
http://www.reuters.com/article/2011/11/28/us-kenya-bashir-icc-
idUSTRE7AR0YA20111128. (Accessed December 2, 2013)
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Security Council Resolution 1593 has often been cited as a failure of enforcement of ICC’s
decision due to its political nature. The support for ICC’s work kept on decreasing
with passing time in the region with the prospects for negotiated settlement increasing.
The Western states preferred political and diplomatic processes over judicial prosecutions. As
a consequence of which, the governments have been reluctant to move forward on
implementation of the due arrest warrants of the ICC. The Security Council has also failed
to force the member states of the UN to put into effect the ICC's prosecutions. What to
speak of pressing member states, when in June 2012 Ahmed Haroun, who became the
Governor of the South Kordofan of Sudan, was assisted and provided a helicopter ride by the
UN to attend a meeting to resolve a local conflict within his region.
The Governor is also issued arrest warrant by the ICC for war crimes and crimes against
humanity in Darfur along with Bashir. The lack of support for the ICC is due to political
expediency. On the other hand, because of politicisation of the referral, the ICC has been on a
weak footing. This is tarnishing ICC’s image that is harmful for the very reason that it was
created.
War Crimes in Uganda
The individual responsible behind the war crimes was Joseph K. Kony, the leader of a
guerrilla group Lord’s Resistance Army (LRA) in Uganda that led to ICC action against war
crimes there. The ICC has initiated investigations into the war crimes and crimes against
humanity against the LRA insurgency that has been going on since 1987.7 According to a
British Broadcasting report, the LRA is accused of numerous violations of human rights.8 The
Government of Uganda referred the matter to the ICC in December 2003. Consequently,
arrest warrants were issued for Joseph Kony, Raska Lukwiya, Okot Odhiambo, Dominic
Ongwen, and Vincent Otti. Josephy Kony is the commander and chairman of the LRA while
Vincent Otti is the vice chairman and second-in-command of the LRA. Moreover, Raska
Lukwiya is also a high-ranking commander of LRA whereas Okot Odhiamboo is the deputy
army commander. Dominic Ongwen is the commander of the Sinai Brigade of the mentioned
group.9 According to Hovil, the method of investigation of ICC was also mired in
7
Associated Press, “International Criminal Court gets Its first case”.
(accessed December 15, 2013).

8
British Broadcasting Corporation. "Profile: Uganda's LRA rebels" ,
(February 6, 2004).

9
The Hague Justice Portal, “Situation in Uganda”. Available at:
http://www.haguejusticeportal.net/index.php?id=6175. (Accessed
December 25, 2013)
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controversy. Various quarters were of the view that the ICC started investigations at an
unfavourable time. Furthermore, the investigation was not comprehensive and did not show
the true picture. It also did not take into account the views of the victims. Moreover, this
approach was seen to have jeopardised the link between the citizens and the state in war-
affected areas. The ICC got involved in the matter as the Ugandan Government had referred
the matter to it. Since the investigation was initiated at the behest of the government, it was
widely regarded as unpopular with the ICC being seen as a tool of government. Moreover,
the investigation was being conducted lopsidedly and the assets of the states were widely
used. There was also a high level of secrecy being maintained about the offices of ICC in
Uganda. Uganda also hosted a review conference of the ICC that further raised
suspiciousness about the partiality of the ICC.
It is also to be noted that the government failed to protect its people from LRA, and later on
initiated a counter insurgency program to deal with the rebels. This program aimed at
relocating people to the protected villages it made. However, people argued it
prevented them for reaching their land. People found outside the perimeters of the protected
villages were seen as rebels and were killed. Seen in the context of human right, this is also a
grave violation of human rights to which the ICC turned a blind eye. The ICC was of the
view that these acts were not grave enough to be tried under the statute which courts operates.
This was a partial approach by the ICC that was criticized by the locals from very start.
According to Tenove, the ICC was envisioned to be a court of last resort. However, the
Ugandan government referred the matter to the ICC on the first instance. Some experts argue
that it was intended to label LRA as a terrorist organization so that their political demands are
ignored. The ICC’s involvement also hindered negotiations as it was in the middle of peace
talks between the LRA and the Ugandan government when the arrest warrants were issued.
These are the challenges that the ICC has to address; yet ICC cannot be held responsible for
these deficiencies.
According to Louise Parrot, to maintain the dignity of the ICC, the prosecutorial discretion
must be exercised cautiously. There should be a system of checks and balances that reviews
it. If it is not exercised meticulously, the ICC will lose its dignity and will be seen as an
institution that is driven by political motives10. The ICC is passing through difficult times and

10
Louise Parrott, “The role of the International Criminal Court in
Uganda: Ensuring that the pursuit of justice does not come at the price of
peace”, Australian Journal of Peace Studies 1, no. 1 (2006)
 16

it must ensure that to grant justice and at the same time not jeopardising peace.

What are other criticisms of the ICC?

Criticisms generally come from two directions. Some believe the court has too little
authority, making it inefficient and ineffective at putting away war criminals. Others think it
has too much prosecutorial power, threatening state sovereignty, and that it lacks due process
and other checks against political bias.11 There has also been debate about the qualifications
of judges. Meanwhile, some worry that the prospect of international justice prolongs conflicts
by dissuading war criminals from surrendering, though the research on that question is
inconclusive. Even advocates of the court have admitted that it has shortcomings.
Additionally, some cases have raised thorny legal and moral questions, such as the culpability
of former child soldiers who were pressed into service and themselves victimized.

Several major powers echo U.S. complaints. China and India, in abstaining from the court,
argue that it would infringe on their sovereignty. Analysts point out that both countries could
face investigations if they joined.12 In 2016, Russia pulled its signature from the treaty after
the court classified its 2014 annexation of Crimea as an occupation, and Moscow is unlikely
to cooperate with the court’s war crimes investigation in Ukraine.

Many African nations have accused the ICC of disproportionately targeting the African
continent. Of the court’s more than two dozen cases, all have dealt with alleged crimes in
African states. In 2016, the African Union backed a proposal led by Kenya for a mass
withdrawal, though the vote was largely symbolic.

Still, in Kenya and elsewhere, the court maintains broad public support. CFR’s Gavin writes
that the opposition of many African leaders to the ICC “is not necessarily aligned with the
desire of many Africans for fairness and accountability.”

4. SUCCESSES AND FAILURES OF ICC

The Successes of International Criminal Court:

As discussed in the above paragraphs that the ICC is the forerunner in its commitment to
justice for the victims and punishment for the criminals. There was some reason to be
11
In 2017, Foreign Affairs interviewed Chief Prosecutor Bensouda about criticisms levied against the court.
12
https://www.cfr.org/backgrounder/role-international-criminal-court
 17

positive due to the functioning of the tribunals in the past. For example, in in the decades of
1990s the tribunals of Rwanda and Yugoslavia set models for delivering justice. These cases
proved what was impossible to imagine; that is to say – a former head of state standing for
trial until that time. As a result, this improved the outlook that a trans-nationally legal system
could be established.
These tribunals were credited to have convicted several criminals for crimes against
humanity, war crimes and genocide. The reason to launch ICC is not only to penalize persons
who have committed acts like genocide, crimes against humanity and war crimes but also to
act as a deterrent to stop such crimes to take place in prospect. 13
These factors will help in assessing the success of the court. Another
argument presented by Birju Kotecha is that if the functioning of ICC is perceived in terms of
statistical data based on trials and convictions, the ICC’s calculable accomplishment is
somewhat inconsistent. At present, there has been only eight investigations and six arrests so
far. Furthermore, one trial has been completed with a conviction, though it is also
subject to appeal. On the other hand, the counter argument by the former prosecutor Moreno -
Ocampo is that the success of the court is clear from lack of international trials since it is due
to enforcing domestic jurisdictions. Having said that, it is a fact that the ICC has laid the basis
for an effective and successful judicial body. It is worth mentioning that despite the
objections by some states, the Rome Statute was passed and the treaty was ratified which
showed the willingness act against the individuals involved in such heinous
acts.14 There is manifold increase in favour of and support for the ICC, particularly among the
smaller nations of the world. Another important point is that, to increase its effectiveness on
the global level, the court had to be complimentary and supplementary to the national courts,
that as a result, will enable the states to prosecute the individuals on their own as well. In
cases if a state is not able to or does not want to prosecute the perpetrators of heinous acts, the
ICC serves as the last resort. Moreover, the court also checks and ensures the impartiality as
well as any interference or any kind of delay on the part of the government if a state is
willing to take up a case. Since the ICC provides the means for the states in prosecuting their
own criminals, it is considered as one of its successes.

13
Daniel Donovan, “International Criminal Court: Successes and failures
of the past and goals for the future”, op. cit.

14
Vijay Padbanaham, From Rome to Kampala, Council Special Report
No.55 (New York: Council on Foreign Relations Press, 2010), 30.
 18

It is also pertinent to mention that the ICC through its institutional mechanism has ensured
the states’ cooperation with its criminal prosecution. The formation of ICC after 1 July 2002,
its jurisdiction extends over all potential criminal cases that have
occurred.
A new development in enhancing the role of ICC was the inclusion of terrorism to list of
crimes and to reach upon a consensus in defining terrorism in a review conference in 2009.
The task of adding terrorism to the scope of ICC has yet to shape since the amendment for the
inclusion of terrorism has yet to be finalised. With all its merits the court is yet to gain
accomplishment in the actual prosecuting or sentencing of offenders. That does not
undermine the role of the court as the structure has been laid down with flexibility to the need
of the changing world that should ensure its success in the days to come.
The Kampala Conference in 2010 was an encouraging initiative for the state parties as it
showed the adaptability and flexibility of the state parties to the changing transnational
scenario.13 During the conference, the UN Security Resolution 3314 was debated in detail. In
the parameters of this resolution, aggression was included in a list of potential crimes that is
within
the jurisdiction of the ICC . It is expected that the recommendations of this conference are to
be implemented in letter and spirit and can take effect as a treaty on January 1, 2017.
The addition of aggression to the crimes has facilitated in extending ICC’s jurisdiction and at
the same time guaranteeing global peace.
The failures of ICC
Though the ICC was a real glimmer of hope for numerous countries facing conflicts as it
came into being after enough groundwork through the Rome statute. Nevertheless, it is seen
by many states as a failure. The first reason for their disappointment was the inactivity of ICC
till 2009 when it opened its first case. The first chief prosecutor, Luis Moreno-Ocampois who
got recognition by revealing the corruption of Argentine in the Trial of the Juntas, but he has
been generally critiqued for his continuous failure which has added to the reluctance of the
states.15

15
Ali Ezzatyar, “Fending off Failure: The International Criminal Court’s
New Chief Prosecutor”, The Moderate Voice (June 27, 2012). Available
at: http://themoderatevoice.com/151042/fending-off-failure-the-
international-criminal-courtsnew-chief-prosecutor/
 19

The ICC under the guidance of the adhoc tribunals, which were established previously,
developed the concept of accountability. The claim to jurisdiction over human rights has been
mandated to the Security Council. For the smooth functioning of ICC, plenty of resources
have been allotted to it; unfortunately, it has failed to accomplish a high level of prosecution.
In addition to this, there has also been a geographical disproportion in its prosecution. It has
been observed that the court is particular about taking action against the violator of Human
rights in Africa. Although, there is gross human rights violation on almost all continents, the
emphasis of ICC’s investigations is has remained on Africa only. This has raised concerns in
various quarters about the credibility of ICC and many term it as a tool of west. Also, their
failure of ICC to level charges against those perpetrators having greater chances of being
brought to trial is also criticised.16

In case of Omar al-Bashir, the President of Sudan, the ICC levelled charges against the
incumbent head of state for committing crimes in Darfur. It is worth mentioning that
President Bashir was able to evade the arrest and avoid prosecution due to a network of
support behind him. He travelled to those countries, which are signatories of ICC, but the
countries did not arrest an incumbent head of state. The inability of ICC to pressurize those
states to arrest Omar has tarnished its standing. It is also important to note that there were at
least ten other important human rights violators in Sudan who could have been easily
apprehended and stood trial with a higher probability of conviction. This action
would have sent a strong message to all other violators that the noose around their necks
would get tightened any time. Similarly, taking a look at the example of Libya, it can be
noted that the referrals against Gaddafi did more harm than good. The court has a mission to
grant justice and it cannot be put into action without consideration of the limits as well as
performance of the court. Therefore, the argument put forward by various quarters is that it is
high time that ICC must come up to the expectations and achieve the goal for which it has
been established.17 One of the stony reactions on the functioning of ICC is that it is focusing
more on the crimes in African continent than on crimes committed by the armies of many
Western countries in Middle East, Asia, or Latin America. With regards to crime committed

16
Ali Ezzatyar, “Fending off Failure, op.cit.
17
Maryam Jamshidi, “The enforcement gap: How the International
Criminal Court failed in Darfur”. Available at:
http://www.aljazeera.com/indepth/opinion/2013/03/2013325 62714
599159.html (Accessed December 4, 2013
 20

by individual, it is also to be noted that certain quarter in the Muslim as well as Western
nations have raised them concerns about the prosecution of the US President George W.
Bush along with Tony Blair after the incidents of 9/11 and them intervention in Afghanistan
and Iraq. Therefore, it is enormous task for the ICC to act against the powerful individuals of
the powerful states.

5. VARIOUS COUNTRIES ON ICC

When the ICC was established, it was widely applauded; no longer would the heinous crimes
of world leaders and others with power go unpunished. However, enthusiasm for the ICC has
waned since then, especially on the African continent, among claims that the court is
disproportionately targeting Africans and engaging in Western imperialism and/or neo-
colonialism.

It is easy to see why such claims have been made: As of December 2016, only one of the
court’s investigations has occurred in a non-African country (Georgia); all other
investigations have concerned individuals from eight African countries. Defenders of the
court rebut these charges by noting the origins of the African investigations: five African
countries (Central African Republic, Côte d’Ivoire, Democratic Republic of the Congo, Mali,
and Uganda) invited the ICC to investigate allegations of wrongdoing in their countries, and
investigations concerning two other countries (Sudan and Libya) were begun at the request of
the UN Security Council.18 The only African investigation that the ICC began of its own
volition was the one in Kenya. Also, preliminary examinations—the precursor to an
investigation—have been opened in non-African areas, including Afghanistan, Colombia,
Iraq (regarding the actions of United Kingdom nationals in Iraq), Palestine, and Ukraine, as
well as in some other African countries: Burundi, Gabon, Guinea, and Nigeria.

Another point to take into consideration when examining the focus of the ICC’s preliminary
examinations and investigations is which countries have not ratified the Rome Statute and
therefore are not a party to the court. For example, China, India, Russia, and the United States
never ratified the Rome Statute (although the latter two are signatories) and therefore are not
a party to the court. That larger powerful countries such as the aforementioned four have not
yet joined the ICC has irritated many who feel that the lack of ratification by those countries

18
https://www.britannica.com/story/the-international-criminal-court-icc
 21

perpetuates a sense of unequal and unfair treatment in the ICC’s activities. The court has also
come under fire for what some feel is a lacklustre track record of having won only four cases
since its start.
Countries that no longer wish to be a part of the ICC are free to leave. But a country’s
declaring its intention to leave the ICC doesn’t mean that the withdrawal automatically
happens. There is a procedure that needs to be followed. In order for a country to formally
withdraw from the ICC, the country must notify the secretary-general of the United Nations
in writing; once that notification has been received, withdrawal will take effect one year from
the date of the notification, or later if the notification specifies a later date.

In 2016 several countries announced that they were leaving or were considering leaving the
ICC. Many of those countries cited the previously mentioned concerns as their reasons for
wanting to depart from the court, but some observers also noted that certain countries that
were contemplating leaving the ICC were the subjects of, or the potential subjects of,
investigations that would be unfavourable to their governments. Russia announced that it was
going to leave the ICC, but since Russia never ratified the Rome Statute, it technically
couldn’t withdraw from the court; it could only declare that it was withdrawing its signature
from the original 1998 statute. Other countries that have also mulled a departure include
Namibia, Uganda, Kenya, and the Philippines. Thus far, only three countries have taken
formal action to withdraw from the court. Burundi, South Africa, and The Gambia all
submitted written notification to the secretary-general of the UN, informing him of their
intent to withdraw; this raised the alarm for the future of the court if other countries were to
follow suit. In December, however, The Gambia’s new president-elect announced his
intention to stay with the ICC, and in South Africa, the decision to leave the ICC was in the
process of being challenged in that country’s court system. These actions gave some measure
of hope that a mass departure from the ICC might not be as imminent as it initially appeared.

6. CASE LAWS

BAHAR IDRISS ABU GARDA CASE
Attack on African Union peacekeepers 
The Abu Garda case relates to a 29 September 2007 attack on the African Union
peacekeeping mission stationed at the Haskanita Military Group Site during the internal
conflict between government and rebel forces. Twelve peacekeepers were killed and a further
 22

eight severely wounded in addition to destroyed communication, installations, dormitories,

vehicles, and other materials. 

The attack on the MGS Haskanita was allegedly carried out by splinter forces of the Justice
and Equality Movement (JEM) rebel group, under the command of Abu Garda, the chairman
and general coordinator of military operations of the United Resistance Front. The ICC
prosecutor alleged that Abu Garda and other commanders agreed on a common plan to attack
the MSG Haskanita.

First ICC summons to appear 

In May 2009, Abu Garda became the first ICC suspect to voluntarily appear before the Court
—the ICC had issued its first summons to appear in lieu of an arrest warrant. The charges
included: violence to life in the form of murder, intentionally attacking peacekeeping
missions and pillaging. All were war crimes. 

ICC judges decline to confirm charges 

Following a confirmation of charges hearing in October 2009, Pre-Trial Chamber (PTC) I
declined to confirm Garda's charges, deciding that it lacked sufficient evidence to support the
prosecutor's allegations vis-à-vis Garda's involvement in a common plan to attack the
Haskanita base. The prosecutor's appeal request was rejected in 2010.

UHURU KENYATTA CASE:

2007-08 post-election violence in Kenya
In 2007, incumbent President Mwai Kibaki of the Party of National Unity (PNU) was
declared the winner in the closely-contested Kenyan presidential race against Raila Odinga.
Odinga and his opposition party, the Orange Democratic Movement (ODM), refused to
recognize the results and widespread violence ensued, causing thousands of deaths, the
displacement of over half a million people, as well as hundreds of victims of sexual assault. 

Who is Uhuru Kenyatta?

Uhuru Kenyatta is the son of Jomo Kenyatta, Kenya's independence leader and first
president. In March 2013, Kenyatta was elected president of Kenya. Before this, Kenyatta
held various positions within the Kenyan government, including minister of finance and
 23

deputy prime minister. Kenyatta was a prominent member of the PNU political party at the
time of the 2007-08 post-election violence (PEV).  

Kenyatta charged for alleged common plan against ODM supporters

The ICC prosecutor suspected Kenyatta was responsible for planning, financing, and
coordinating violence against ODM supporters as part of a common plan along with two
others: Francis Muthaura, a former civil service chief, and Muhammed Hussein Ali, a former
police chief. 

Kenyatta was charged with five counts of crimes against humanity: Murder, deportation or
forcible transfer, rape, persecution, and other inhumane acts. 
The prosecution alleged that Kenyatta, as an indirect co-perpetrator, orchestrated cooperation
between the PNU and Mungiki criminal organisation that carried out attacks on ODM
supporters during the PEV. The alleged common plan was carried out around areas of
Nakuru, Naivasha, Kibera, and Kisumu from 30 December 2007 to 16 January 2008. 

Mixed outcomes in confirmation of charges

In January 2012, Pre-Trial Chamber (PTC) II confirmed the charges against Kenyatta and
moved the case to trial. On 8 October 2014, Kenyatta became the first sitting head-of-state to
appear before the ICC during a pre-trial hearing. 

Charges against Muthaura were also confirmed but were eventually withdrawn before the
case got to trial after a critical witness recanted his prior statements. The prosecutor alleged
the Kenyan government had provided only limited cooperation and had failed to assist in
uncovering crucial evidence against Muthaura.

Judges declined to confirm charges against Ali for lack of evidence.

Judges decide hearings to take place in The Hague

On 15 July 2013, in the context of the Ruto/Sang trial, the plenary of ICC judges rejected a
joint defense request to hold the trial in Kenya or Tanzania. For such a move to be adopted, at
least two-thirds of the 18 judges needed to vote in favor of it. The judges stated that they took
into consideration the security and cost of holding proceedings outside The Hague, the
potential impact on victims and witnesses, as well as the potential impact on the perception of
the Court
 24

7. CONCLUSION AND SUGGESTION

Even though the ICC is a prime judicial body that is ratified by 122 countries, it is still
caught up in issues of universality and enforceability. It is also interesting to note that at
present there are 71 countries that have not ratified the Rome Statute. These countries are
shying away from ratifying it so that they do not fall under ICC’s jurisdiction. This factor is
causing a problem in administering justice across board, as the body will not have jurisdiction
in the countries that have not ratified its statute.
As observed in the previous paragraphs, once a country becomes a
state party to the ICC, it is incumbent upon the state to extend full cooperation to the Court. It
is also to be noted that the ICC is dependent on the states, since it does not have an enforcing
body of its own. However, it has been widely seen that despite being a state party, the states
have failed to cooperate with the judicial body for one reason or other. Resultantly, this has a
negative impact on the working of the court as it undermines its authority and impedes
justice. Furthermore, the state parties must also help in executing the arrest warrant issued by
the ICC. In this regard, in the year 2012, the state parties executed five of the eighteen arrest
warrants issued. It shows the lack of cooperation from the state parties.

The Rome Statute envisages the participation of the

victims in the court proceedings to deliver justice. This is aided by the Victims’ contribution
to impartial and efficient trials. In view of the fact that the International Criminal Justice
System does not have a concept of jury, the victims are the only popular participants in the
proceedings of the trial. This has been a stepping-stone towards delivering justice as the
previous tribunals lacked such innovation. Another important development is that it also
carries a significant importance under the statute of the ICC, as the court wants to sensitize
itself with the gravity of situation by giving the victim the right to participate. The Rome
Statutes stipulates that the International Criminal Court is a court of last resort,and it will
intervene where national courts have failed to address international crimes. The Rome Statute
comes into play when national courts fail to investigate crimes within its jurisdiction and,
hence, prosecute their perpetrators. Nevertheless, it remains the primary responsibility of the
state for prosecuting the perpetrator of these crimes. Generally speaking, there are
occurrences when barbaric crimes are committed with impunity that does not fall in the scope
of ICC’s charter and the national courts do not take cognizance for multifarious reasons. All
things considered, it is recommended that the ICC statute should include reprehensible crimes
like rape, sexual slavery, enforced prostitution, human trafficking and other forms of sexual
 25

violence as a distinct category of war crimes, given the fact that these crimes comprise grave
breaches of laws and customs in an armed conflict. It is suggested that the Office of the
Prosecutor (OTP) must exercise its prosecutorial discretion prudently. Also, a system of
checks and balances must be put in place to monitor it. In Addition to that, the OTP also
encourages state referrals, even though, the Rome Statute stipulates that the ICC is the last
resort. The ICC should also have a mechanism where it can also assess the actual reasons for
state referrals. Given these points, the state referring violations on its own accord to the ICC
should not be understood as comprehensive endorsement of international criminal justice.
From time to time, some countries have referred cases in order to manipulate the judicial
process for their own political reasons. With this intention, a revamping and restructuring of
the prosecutor’s office is the need of the time. The success of ICC depends upon the
successful prosecution and conviction of the individuals. However, looking at its
performance, the Office of the Prosecutor has failed miserably in this regard. There needs to
be critical assessment of the output of prosecutor’s office. In support of this argument, there
have been instances when, even the ICC judges have been critical of the prosecutor’s office.
Therefore, the prosecutor’s office needs to have a team of dedicated, professional and
competent individuals for successful prosecution and conviction of the individuals. In a
nutshell, What the ICC needs is to increase its deterrent potential in order to curb the serious
crimes threatening the peace, security and well-being of individual and international
community. As discussed above, there have been instances when the ICC has tried to deter
the further commission of crimes, however, there is more to be done as it has not been
successful in letter and spirit.
8. BIBLIOGRAPHY:
Articles & Journals:

1. Sadat LN (2002) The International Criminal Court and the Transformation of International

Law: Justice for the New Millennium. Transnational Publishers, Inc. New York.

2. chabas WA (2011) An Introduction to the International Criminal Court. Cambridge

University Press.
3. Werle G (2005) Principles of International Criminal Law. Oxford University press.

Websites:
 26

 https://www.omicsonline.org/open-access/the-international-criminal-court-its-
success-and-limitations-for-pursuinginternational-justice-2169-0170-
1000180.php?aid=70587
 https://www.cfr.org/backgrounder/role-international-criminal-court
 https://www.researchgate.net/publication/
309842808_International_Criminal_Court_ICC_An_Analysis_of_its_Successes_
and_Failures_and_Challenges_Faced_by_the_ICC_Tribunals_for_War_Crimes
 https://www.scribd.com/document/430450416/THE-ROLE-OF-VICTIMS-IN-
IN-INTERNATIONAL-CRIMINAL-COURT
 https://www.semanticscholar.org/paper/International-Criminal-Court-(-ICC-)-
%3A-An-Analysis-Khan-Marwat/5061a0c8d27261ff50701f9311571385a021ac3d
 https://www.qurtuba.edu.pk/thedialogue/The%20Dialogue/11_3/
Dialogue_July_September2016_242-256.pdf
 https://www.icc-cpi.int/sites/default/files/Publications/understanding-the-icc.pdf
 http://www.inquiriesjournal.com/articles/1806/the-effectiveness-of-the-
international-criminal-court-challenges-and-pathways-for-prosecuting-human-
rights-violations
 https://www.icc-cpi.int/sites/default/files/NR/rdonlyres/289B449A-347D-4360-
A854-3B7D0A4B9F06/283740/010911SalzburgLawSchool.pdf
 https://blog.oup.com/2015/11/three-challenges-international-criminal-court/
 https://www.grin.com/document/453036
 https://www.britannica.com/story/the-international-criminal-court-icc
 https://www.tandfonline.com/doi/full/10.1080/01436597.2013.800737
 https://www.icc-cpi.int/cases
 https://www.coalitionfortheicc.org/cases/uhuru-kenyatta