Author of this article in The Hague, Netherlands. Image Credits: Advocate Arunansh B Goswami
Dutch jurist Hugo Grotius is called the father of international law; his masterpiece, De Jure Belli ac Pacis (1625; On the Law of War and Peace), is considered one of the greatest contributions to the development of this subject. I recently spent a considerable part of my stay in Europe in Grotius’s homeland, the Netherlands. During my stay in The Hague, or Den Haag as the Dutch call it, home to International Court of Justice, the Permanent Court of Arbitration, and the International Criminal Court (ICC), as a scholar of law, I spent time pondering over the dynamics of international politics and international law, their convergence, and divergence based on “national interests.” This article is the result of this ideation. In the recent past, many events in India’s immediate neighbourhood have led human rights attorneys to knock on the doors of ICC for Justice, from the Uyghur issue to the Rohingyas and the ongoing violence against religious minorities in Bangladesh.
Structure and functioning
First things first, in order to understand the functioning of ICC, which has over the years been accused by its detractors of being an arena of international politics, it is pertinent to first be aware of its organisational structure and funding. The ICC was created on July 17, 1998, under the Rome Statute adopted by the United Nations Diplomatic Conference on Plenipotentiaries on the Establishment of an International Criminal Court. The ICC is composed of four primary organs: the Presidency, the Judicial Divisions, the Office of the Prosecutor, and the Registry. ICC has jurisdiction over four main crimes: First, the crime of genocide, Second, the ICC can prosecute crimes against humanity, which are serious violations committed as part of a large-scale attack against any civilian population. Third, war crimes, which are grave breaches of the Geneva conventions in the context of armed conflict; finally, the Fourth crime falling within the ICC’s jurisdiction is the crime of aggression. It is the use of armed force by a state against the sovereignty, integrity, or independence of another state. The four Geneva conventions and the additional protocols added subsequently, along with genocide, fall under the direct jurisdiction established in the Rome Statute of 1998 and therefore are prosecutable in the ICC. The financing of the International Criminal Court (ICC) is subject to part 12 of the Rome Statute. The top 10 countries for ICC budget contributions in 2023 were Japan, Germany, France, Britain, Italy, South Korea, Canada, Brazil, Spain, and Australia.
India, US and the Rome statute
Like India, the United States of America is not a state party to the Rome Statute, but why? The reason for India is “powers given to the United Nations Security Council (‘UNSC’) and the non-inclusion of nuclear weapons and other weapons of mass destruction as weapons whose use would constitute a war crime; also, India has long suffered terrorist activities, and it has spearheaded the movement to get a Comprehensive Convention on International Terrorism adopted at the United Nations General Assembly, and it believes that if the ICC is to judge crimes of international concern, then terrorism must be included in the list of crimes.” The reason for not joining the ICC for the US, according to John Bellinger III, a former legal adviser for the National Security Council of the US, is that the US has been concerned from the very beginning that the prosecutor for the court would be given too much power unchecked, and he or she could conduct politically motivated prosecutions of US soldiers.” Many influential countries view the ICC as an arena of geopolitical competition under the garb of international law and hence not as unbiased as it claims to be.
Jurisdiction of the ICC
Reuters reported on January 9, 2025, that the US House of Representatives passed a bill, the “Illegitimate Court Counteraction Act,” which would sanction any foreigner who investigates, arrests, detains, or prosecutes U.S. citizens or those of an allied country, including Israel, who are not members of the court. This bill has been brought to impose sanctions on the International Criminal Court (ICC) in protest of its arrest warrant for Israeli officials. Over the years the ICC has issued arrest warrants against leaders of countries that are not member states of the ICC. So as to understand the exercise of jurisdictional competence of the ICC, it is important to read Articles 12-14 of the Statute. In general, the Court can exercise jurisdiction if a “situation” or case (1) is referred to the Prosecutor by a State Party to the treaty, (2) is referred to the Prosecutor by the U.N. Security Council, or (3) is under an investigation initiated by the Prosecutor proprio motu. On 14 November 2019, ICC Pre-Trial Chamber III, composed of Judge Olga Herrera Carbuccia, Presiding, Judge Robert Fremr, and Judge Geoffrey Henderson, authorised the prosecutor to proceed with an investigation for the alleged crimes within the ICC’s jurisdiction in the Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar (“the situation in Bangladesh/Myanmar”). The Chamber concluded that the Court may exercise jurisdiction over crimes when part of the criminal conduct takes place on the territory of a State Party, relying on the case of France v. Turkey (Case of the SS “Lotus”) at the ICJ. While Myanmar is not a State Party, Bangladesh ratified the ICC Rome statute in 2010. According to the ICC, its vision is to complement, not to replace, national criminal justice systems. It can prosecute cases only if national justice systems do not carry out proceedings or when they claim to do so but in reality are unwilling or unable to carry out such proceedings genuinely. This fundamental principle is known as the principle of complementarity.
According to US Secretary of State Anthony Blinken, it is precisely this principle of complementarity that wasn’t applied by the prosecutor of the ICC in the case of Israel. Blinken stated, “The ICC was established by its state parties as a court of limited jurisdiction. Those limits are rooted in principles of complementarity, which do not appear to have been applied here amid the prosecutor’s rush to seek these arrest warrants rather than allowing the Israeli legal system a full and timely opportunity to proceed.” Three experts appointed by the UN Human Rights Council, Margaret Satterthwaite, Special Rapporteur on the independence of judges and lawyers; Francesca Albanese, Special Rapporteur on the situation of human rights in the Occupied Palestinian Territory; and George Katrougalos, Independent Expert on the promotion of a democratic and equitable international order, have urged the US Senate to reject this bill. They said, “It is shocking to see a country that considers itself a champion of the rule of law trying to stymie the actions of an independent and impartial tribunal set up by the international community to thwart accountability.” Even though the ICC has issued an arrest warrant against Israeli Prime Minister Benjamin Netanyahu, Prime Minister Viktor Orban of Hungary (that is a state party to the Rome Statute that established the ICC) has invited Netanyahu to visit his country, and in 2024, Mongolia, another state party to the Rome Statute, gave a red carpet welcome to President of Russia Vladimir Putin and ignored calls to arrest him on an international warrant by the ICC. A substantial disbelief in ICC’s proclamation as an unbiased institution can be seen not just in the Hungarian and Mongolian examples but in several other instances. On the one hand, international law aims to establish a rules-based order; on the other hand, geopolitics often dictates how these rules are applied or ignored.
Conclusion
While in 2019, the ICC agreed to investigate crimes committed against the Rohingyas in Myanmar, it refused to investigate China’s detention of Uyghur Muslims in 2021, being accused of bias in favour of certain countries. ICC has indicted more than fifty individuals, mostly from African countries. In 2017, Burundi became the first African country to withdraw from the ICC. “The ICC has shown itself to be a political instrument and weapon used by the West to enslave other states,” said presidential office spokesman Willy Nyamitwe. Even though allegations have been made against the ICC of bias in favour of certain countries, it has welcomed two new state parties to the Rome Statute: Armenia and Ukraine. For Armenia, with the fall in the trust in Russia as a traditional security guarantor against Azerbaijani aggression, ratifying the Rome Statute appeared as a better choice. Membership in the ICC would give Armenia new legal tools to utilise in its efforts to constrain Azerbaijan. For Ukraine, integration with the European Union is a priority, and ratification of the Rome Statute is a mandatory condition for Ukraine’s European integration. Article 8 of the Association Agreement between the European Union and Ukraine provides for the ratification of the Rome Statute. While there are states that continue to level allegations of bias against the ICC, there are others that repose their trust in its functioning.
Disclaimer
Views expressed above are the author’s own.
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