Published on 3rd March 2025
By: Abha
Indian Institute of Management- Rohtak
Introduction
The International Criminal Court is an international permanent court established through the Rome Statute signed on 17 July 1998. The ICC is an important landmark in promoting international justice. The ICC was established primarily to investigate, prosecute, and hold individuals accountable for very serious and grave offenses under international law that concern the whole world, especially war crimes, genocide, crimes against humanity, and the crime of aggression. The role of the ICC then is to prevent violence from escalating and maintain peace. With its focus on justice and human rights, it helps to stabilize international relations by providing hope for victims and a sense of justification in post-conflict situations.
The Role of the International Criminal Court in Wartime
The International Criminal Court plays an important role in safeguarding peace during warfare by laying emphasis upon enforcing and inducing compliance with some specific norms of international law which outlaw and prevent mass violence. The role of the ICC is significant from this perspective as it fulfills a major function in keeping the world peaceful through exposing, blaming, and punishing people for serious crimes that further dissuade the potential for individuals who may instigate or incite any hatred among society that can create a severe struggle.
Jurisdiction of the International Criminal Court
ICC is a permanent institution with the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute, and shall be complementary to national criminal jurisdictions. [1] The ICC has a legal capacity to exercise its functions and power as provided in the Statute on the territory of any State Party and by a special agreement on the territory of any other State.[2] The jurisdiction and functioning of the Court shall be governed by the provisions of Part II of the Rome Statute. Under Article 5, the jurisdiction of the court over the most serious crimes, particularly the crime of genocide, crimes against humanity, war crimes, and the crime of aggression, is defined. [3]
Article 8(1) of the Rome Statute defines the jurisdiction of the court in cases specifically related to war crimes, where the plan or policy or part of a large-scale commission and execution of such crimes. [4] War crime is a violation of the law and customs that is applicable globally; the Geneva Convention, 1949, is a legal framework framed to deal with crimes that are against persons or property that is protected under the provision. In the provision, the killing of a person wilfully causing great suffering or serious injury to the body or the health and taking hostages is considered to be wrong. [5]
The Court has control over any individual accused of a crime within the jurisdiction of the ICC, except for any individual who was below the age of 18 at the time of the alleged commission of the crime. [6][7] The Rome Statute expressly foresees in Article 27 that immunity can never be invoked regarding the crimes over which the ICC has jurisdiction. [8]
Impact of the International Criminal Court during Wartime
The International Criminal Court plays a significant role during wartime by addressing and prosecuting war crimes, genocides, and crimes against humanity. The ICC impact is significant and versatile in wartimes. The ICC serves as a deterrent to potential perpetrators of the war crimes and discourages those who aim to commit a serious and grave crime. This helps to prevent further escalation of violence, which creates an apprehension among the individuals or group of individuals who wish to engage in such criminal activities.[9]
The ICC holds individuals responsible for the actions that result in conflict. By prosecuting for the war crimes and other serious offenses, which prevent criminal activities and ensure that justice is served. The ICC’s accountability is pivotal for maintaining the rule of law and upholding international standards of human rights. It reflects a principle that no one is above the law, irrespective of their power or position.[10]
The ICC provides a platform for the victims and sufferers to seek justice. In wartime, often general people are victimized, due to which they have to face numerous problems that make them vulnerable, voiceless, and powerless. The ICC offers them an opportunity to protect their rights, such as the right to have their voice heard and to seek redress for the crimes committed against them. This will help the communities to restore a sense of justice, healing, and harmony.[11]
Additionally, the ICC contributes significantly to the development and enforcement of international humanitarian law and international criminal law. By exercising their power and prosecuting the individuals for serious crimes such as attacks, killing of humans, sexual violence, and other crimes. The court sets legal precedents and clarifies the application of international law. This is important for the developing of legal standards and for ensuring that future conflicts are governed by clear and enforceable rules. [12]
Significance of the International Criminal Court in wartime can be illustrated through Ukrainian Situation, where the ICC has issued arrest warrants against, Mr. Vladimir Vladimirovich Putin, President of Russia and Ms. Maria Alekseyevna Lvova-Belova, Commissioner for Children’s Rights. They are charged for the war crime of unlawful deportation of population and unlawful transfer of children from occupied area of Ukraine to the Russian Federation under Article 8 (2)(a)(vii) and Article 8 (2)(b)(viii) of the Rome Statue. These crimes were committed on the Ukraine to the Russian Federation from 24th February 2024. Pre-Trail Chamber II considered the applications of 22 February 2023, and concluded that there are reasonable grounds to believe that the practise of illegal transfer of Ukrainian children from the Ukraine occupied area to the Russian Federation took place.[13]
The Court Chamber unrevealed the warrants in order to protect the victims, witnesses, and safeguard the from the investigation. Later, these warrants were published to spread public awareness that may contribute to the restrict and curb further commission of crimes.
However, the ICC faces significant challenges, which limit the jurisdiction, reliance on state cooperation, and political pressure that often pose substantial hindrances to their performance. Even after these complexities, the court remains a vital institution in the pursuit of human rights during conflicts. [14]
Challenges faced by the International Criminal Court
The Court has faced a number of fundamental challenges in its attempt to uphold justice and impunity, which has ensured its effectiveness in the eyes of many in its aim and purpose.[15] The ICC’s jurisdictional limitations lead it to rely on the United Nations Security Council (UNSC), which affects its flexibility. The Office of Prosecution struggles with budget constraints, which affects the strength and performance of its investigation. Lack of cooperation and weak security limited the investigating power of the ICC, which can be seen in African countries like Sudan, Libya, and Burundi. [16]
The ICC was being alleged for political bias, specifically regarding the admissibility of the cases based on severe crime gravity. It also receives poor support from judicial institutions, which is crucial for carrying out its jurisdiction. The ICC lacks military forces and police officers to investigate and arrest the suspected group or individual, relying on national cooperation, which is not sufficient to curb the serious crimes. These aforementioned challenges reflect the International Criminal Court’s limitations in legitimacy, admissibility, jurisdiction, apprehension, and capacity to fight against the crime insufficiently and make it difficult to serve justice. One of the greatest challenges faced by the ICC was the case of Sudan and Omar al-Bashir.
This raises a question of credibility about the International Criminal Court’s functioning that is often spread by a sense of disappointment at the international level.[17]
The following illustrations reflects the significant challenges faced by the ICC while serving justice:
Case Study on Omar al-Bashir
Omar al-Bashir served as President of Sudan from 1989 to 2019 but was removed in 2019. During his presidency period, the Sudanese regions saw significant bloodshed in their internal struggles, much of which was marked in Darfur. This conflict dates back to 2003, when the Sudanese government alleged being opposed to various physical and political powers as well from within. Under his leadership, the rebels claimed that this government instigated and led a systematic assault on the civilian population. The International Criminal Court (ICC) had issued an arrest warrant against Omar al-Bashir on two separate occasions, the first of which was made out on March 4, 2009, and the second was on July 12, 2010, in connection with five charges of crimes against humanity, habeas corpus, and three counts of genocide.[18] The crimes against humanity specifically were murder, elimination, abolition of torture, and rape of sexual assault done systematically against civilians in Darfur. War crimes against al-Bashir were also charged because agents were on the direction of those agents, making it possible. Civilian populations are usually subject to atrocities of international law. Other than the classic crime against humanity charge, war crimes such as an apportionment attack or even pillage as sub-sections are featured within the context of even the broader conflict between the Khartoum regime and rebels. However, the gravest charges against al-Bashir regard genocide, accusing him of the killing, infliction of serious bodily or mental harm, or generally putting conditions of existence that would lead to the physical destruction of the enumerated groups-the Fur, Masalit, and Zaghawa ethnic groups. The warrant of arrest by the ICC has far-reaching implications for the peace process in Sudan with some arguing that the arrest warrant could create further destabilization in the region and complicate the peaceful resolution of the conflict. The indictment served as evidence showing the immense and difficult balancing that must be established by ICC in following justice and maintaining peace in conflict areas.[19]
Hamas-Isreal Conflict
Hamas-Isreal conflict created significant tension globally. Following the attack by Hamas in Israel on 7th October 2023, numerous complaints lodged at the International Criminal Court. Complaints has been filed by organizations, reporters and many more. Three Palestinian human right organizations (Al-Haq, Al Mezan, and the Palestian Centre for Human Rights) filed a complaint on 8th November with the ICC for “war crime, apartheid, genocide, and incitement to genocide” and requesting the issuance of arrest warrants against three Israeli leaders, citing actions including bombing, forced displacement, and deprivation of basic necessities in Gaza.[20]
The ICC has issued arrest warrants against the Israeli Prime Minister Benjamin Netanyahu, former Defense Minister Yoav Gallant and Hamas Commander Mohammed Deif. The warrants against Netanyahu and Gallant, they are charged for committing “crimes against humanity” and “war crimes,” particularly concentrating on starvation as a method of warfare and other inhumane acts during the conflict from October 8, 2023, to May 2024.
Many claims that this decision was distortion of international law that questions the Court’s credibility, wholly undermining its core mandate, and emboldens enemies of democracy around the world. Without acknowledging the truth behind the Isreal’s military actions in Gaza and solely focused on defeating the internationally recognized terror organisation Hamas. But in my view, the court found reasonable ground to do so that gives reason to believe that Mr. Benjamin Netanyahu and Mr. Gallant both knowingly deprived the civil population in Gaza from the basic necessity such as food, water, medicine and medical supplies, along with electricity and fuel that is required for their survival.
Conclusion
The International Criminal Court is the most important and would need to remain the foremost institution for justice in the areas of conflict and war. Thereby, it becomes one of the pivotal agents for accountability in the prosecution of serious international crimes, for instance, war crimes, genocide, and crimes against humanity. The ICC thus can send equally strong messages that by making perpetrators answerable, one would achieve a plan for preventing further atrocities and restoring a measure of justice to communities afflicted by crime.
However, the ICC has its own challenges, including state cooperation, contemporary political pressure, and lack of jurisdiction and enforcement powers. All this has impacted its effectiveness. Sudan’s Omar al-Bashir is one example of how hard it has become to give justice its due when the ICC is concerned. Similarly, in the Hamas-Gaza conflict, questions were raised on the credibility of the ICC’s decision. This makes the work of the ICC extremely high in importance during a war. It is not only concerning law enforcement, it has hope for the victim and also sends a clear, strong signal to the world that no one is above the law, no matter one’s position or place in society. Investigating war crimes during the Ukraine war is itself an excellent example of this principle.
References
[1] See Article 1 of the Rome Statue of the International Criminal Court
Rome statue of the International Criminal Court, 2 A.R.T.I.C.L.E. § 1 (International Criminal Court 1998).
[2] Rome statue of the International Criminal Court, https://legal.un.org/icc/statute/99_corr/2.html
[3]See Article 5 of the Rome Statute of the International Criminal Court
[4] Rome statue of the International Criminal Court, 2 A.R.T.I.C.L.E. § 8(1) (International Criminal Court 1998).
[5] Rome statue of the International Criminal Court, 2 A.R.T.I.C.L.E. § 8(2)(a) (International Criminal Court 1998).International Criminal Court, Rome statute of the International Criminal Court International Criminal Court (1998), https://www.icc-cpi.int/sites/default/files/NR/rdonlyres/ADD16852-AEE9-4757-ABE7-9CDC7CF02886/283503/RomeStatutEng1.pdf (last visited Jan 9, 2025).
[6]Rome statue of the International Criminal Court, A.R.T.I.C.L.E. § 26 (International Criminal Court 1998).
[7] The Practical Guide to Humanitarian Law, Doctors without borders | The Practical Guide to Humanitarian Law, https://guide-humanitarian-law.org/content/article/3/international-criminal-court-icc/ (last visited Jan 2025).
[8] Rome statue of the International Criminal Court, A.R.T.I.C.L.E. § 27 (International Criminal Court 1998).
[9]The International Criminal Court | Facing History & Ourselves (2016) (last accessed, Jan 10, 2025)
[10] Awa Njoworia Valerie Adamu, Analyses of the challenges faced by the international criminal court in the exercise of aits jurisdiction Law Journals (2011), https://www.lawjournals.org/assets/archives/2020/vol6issue6/6-5-79-412.pdf (last visited Jan 11, 2025).
https://www.facinghistory.org/resource-library/international-criminal-court
[11] The International Criminal Court | Facing History & Ourselves (2016) (last accessed, Jan 10, 2025)
[12] W. J. Fenrick, Crimes in combat: the relationship between crimes against humanity and war crimes International Criminal Court (2004), https://www.icc-cpi.int/sites/default/files/NR/rdonlyres/ADD16852-AEE9-4757-ABE7-9CDC7CF02886/283503/RomeStatutEng1.pdf (last visited Jan 11, 2025).
[13] Situation in Ukraine: ICC judges issue arrest warrants against Vladimir Vladimirovich Putin and Maria Alekseyevna Lvova-Belova, www.icc-cpi.int (2023), https://www.icc-cpi.int/news/situation-ukraine-icc-judges-issue-arrest-warrants-against-vladimir-vladimirovich-putin-and (last visited Jan 2025).
[14]Awa Njoworia Valerie Adamu, Analyses of the challenges faced by the international criminal court in the exercise of aits jurisdiction Law Journals (2011), https://www.lawjournals.org/assets/archives/2020/vol6issue6/6-5-79-412.pdf (last visited Jan 11, 2025).
https://www.facinghistory.org/resource-library/international-criminal-court
[15]Renas Ibrahim Mohammed, The Role of International Criminal Court and its Effectiveness on War Crimes in Africa Yakın Doğu Üniversitesi (2019), https://docs.neu.edu.tr/library/6748356312.pdf (last visited Jan 10, 2025).
[16]Alexandre Skander Galand, Nature of the Rome Statute of the International Criminal Court (and its amended jurisdictional scheme) | Journal of International Criminal Justice academic.oup.com (2019), https://academic.oup.com/jicj/article-abstract/17/5/933/5709883 (last visited Jan 9, 2025).
[17]Renas Ibrahim Mohammed, The Role of International Criminal Court and its Effectiveness on War Crimes in Africa Yakın Doğu Üniversitesi (2019), https://docs.neu.edu.tr/library/6748356312.pdf (last visited Jan 10, 2025).
[18] International Criminal Court, Al Bashir International Criminal Court, https://www.icc-cpi.int/darfur/albashir (last visited Jan 2025).
[19] W. J. Fenrick, Crimes in combat: the relationship between crimes against humanity and war crimes International Criminal Court (2004), https://www.icc-cpi.int/sites/default/files/NR/rdonlyres/ADD16852-AEE9-4757-ABE7-9CDC7CF02886/283503/RomeStatutEng1.pdf (last visited Jan 11, 2025).
[20]Israel-Palestine: The Role of International Justice, www.unric.org (2023), https://unric.org/en/israel-palestine-the-role-of-international-justice/ (last visited Jan 2025).
