By Prof. (Dr.) Bharat H. Desai
I. The Context: Fear of the ICC
On February 06, 2025, the maverick President of the United States of America (USA), Donald Trump, chose to take up cudgels against the International Criminal Court (ICC) based at The Hague (The Netherlands). Invoking the grouse of “International Criminal Court (ICC), as established by the Rome Statute, has engaged in illegitimate and baseless actions targeting America and our close ally Israel”, President Trump chose to designate it as a “national emergency to address that threat” and pronounced a series of ‘sanctions’ against the ICC and its officials. The US action has virtually placed the ICC on trial, as it did earlier when the Trump 1.0 Administration imposed similar sanctions on the ICC Prosecutor Fatou Bensouda on September 02, 2020.
They were subsequently revoked on April 02, 2021 by the Biden Administration. This targeting of the ICC as a judicial body reflects the time we live in. It shows that sovereign states prefer international judicial institutions to deliver but don’t want their arrogant and authoritarian leaders hauled up for brazen use of force in violation of the UN Charter and the Laws of War. It is reminiscent of the US attack on the International Court of Justice (The Hague) in the aftermath of the 1986 Nicaragua Judgement that held the USA responsible for “breach of its obligations under customary international law not to use force against another State, not to intervene in its affairs, not to violate its sovereignty” (page 136, paragraph 292).
The US action elicited a swift response from the President of the ICC on February 07, 2025. “The announced Executive Order is only the latest in a series of unprecedented and escalatory attacks aiming to undermine the Court’s ability to administer justice in all Situations. Such threats and coercive measures constitute serious attacks against the Court’s States Parties, the rule of law based international order and millions of victims”, Judge Tomoko Akane said. The ICC has remained under attack from some of the powerful States that are not parties to the Rome Statute. Some leading non-member States include: China, India, Israel, Russia, United States etc.
II. Idea of International Criminal Justice
The idea of international criminal justice i.e. prosecuting the perpetrators before an independent tribunal or court of law having an international character has been in vogue for more than a century. It was works of scholars such as James L. Brierly (8 Brit. YB Int'l L., 1927), Manley Hudson (38 American JIL 1938 549-554) and others that gave fillip to the idea and justification for a permanent International Criminal Court. Over the years, different models of institutional designs have emerged – international military tribunals (Nuremberg and Tokyo), international criminal tribunals (Yugoslavia and Rwanda), hybrid courts (Sierra Leone, Lebanon, Kosovo, East Timor and Cambodia) and national court with competence to try international crimes (Bangladesh).
The permanent form, multilateral structure, judicial independence, fairness, expertise, transparency, among others, provided much legitimacy, credibility and an edge to the idea of the ICC. It performs functions to enforce universally recognised rules of international law, including the law of armed conflicts and human rights law. Has the ICC overcome the shortcomings and pitfalls of other tribunals? It grapples with problems faced by the ICTY and ICTR in terms of distance from the conflict zone, cost factor, delay in trial and non-participation of local population. It follows ‘retributive model’ by focusing on criminal prosecution of the offenders instead of promoting post-conflict justice mechanisms. The Preambular paragraph 10 of the Statute as well as Articles 1, 17 and 18 lay down the principle of complementarity. It implies the ICC shall “exercise its jurisdiction over persons for the most serious crimes of international concern” as “complementary to the jurisdiction of national criminal courts” wherein they fail, or are unwilling or unable to act. Thus, availing cooperation of the States holds the key to compliance with the ICC orders to arrest and deliver the indicted persons for trial.
Governed through the Rome Statute (1998), the ICC came into being on July 01, 2002 (vide Article 125). With the seat in The Hague and 125 States Parties (February 11, 2025) [Africa: 33; Asia-Pacific: 19; Eastern Europe: 20; Latin America & Caribbean States: 28 and Western Europe & other States: 25], as a treaty-based independent international organization, the ICC aims to end impunity for the perpetrators of the most serious crimes of concern to the international community. The ICC structure comprises: Presidency (3 Judges), Judicial Division (Appeal; Trial; Pre-Trial); Office of the Prosecutor and the Registry. The Court has jurisdiction to prosecute and punish individuals for genocide, war crimes, crimes against humanity and aggression. The ICC process starts with the Prosecutor determining a formal charge or accusation of a serious crime and identifying an individual who bears the greatest criminal responsibility for the crimes. However, the ICC’s role is circumscribed and hence it may exercise jurisdiction wherein national legal systems fail to do so or are unwilling or unable to genuinely carry out criminal proceedings.
III. Future of the ICC
All international institutions come under attack including the UN when they seek to give effect to their mandate that impinges upon vital national interests or adversely affect people in power in the member States. Things become precarious when a judicial body such as the ICC seeks to arraign key individuals of non-member States. Hence the recent outburst and attack on the ICC. For instance, on March 17, 2023, the ICC issued arrest warrants for Russian president Vladimir Putin and other officials for alleged crimes committed in the wake of Russia’s ‘special military operation” in Ukraine. Russia promptly denounced the arrest warrants as "outrageous" and Russia's Ministry of Internal Affairs retaliated by placing several ICC officials on its wanted list. Similarly, on November 21, 2024, the ICC announced arrest warrants for Israeli Prime Minister Benjamin Netanyahu, and Defense Minister Yoav Gallant for the war crimes committed in the Israel-Gaza war. It is in this backdrop that the US sanctions (February 06, 2025) were announced on the ICC coinciding with an official visit of the Israeli PM. The ICC arrest warrants do infuriate the powerful people as they retaliate against the ICC Judges, the Prosecutor and the institution. It is a serious hazard for the judicial body to hold such individuals accountable for crimes under the Rome Statute as compared to affixing responsibility of their States (Russia or Israel) per se.
IV. Conclusion
As mentioned in this author’s previous twelve SIS Blogs on Weapons of War (January 24, 2025), the question of Legal Controls of International Conflicts, taught by the author in SIS programs (MA and Ph.D.), has always remained a scholarly quest to eliminate warfare as an evil. Notwithstanding persistent quest for ‘outlawry’ of war (1907 Hague Peace Conferences; 1919 Treaty of Versailles; 1928 Pact of Paris; 1945 UN Charter, Article 2 (4); Article 51), they continue to be a scourge for the humankind. It is truism that our “future lies not in war” (Indian PM, January 09, 2025). Hence, Gandhi’s prophetic words provide us a ray of hope: “When I despair, I remember that all through history the way of truth and love has always won. There have been tyrants and murderers and for a time they seem invincible, but in the end, they always fall...think of it, always.” In the end, as asserted by President Tomoko Akane, the ICC staying the course amidst attacks matters since some 2 billion people face grave risks in 59 conflicts raging in 34 countries (PRIO, June 10, 2024) in our troubled world.
This is an Original Contribution, the13th article in “Weapons of War” series, to the SIS Blog.
Prof. (Dr.) Bharat H. Desai is the former Chairperson and Professor of International Law at the Centre for International Legal Studies (SIS, JNU), who served as a member of the Official Indian Delegations to various multilateral negotiations (2002-2008), initiated & coordinated the futuristic knowledge initiatives for the SIS Faculty Wall of Honor (2023-24), the Inter-University Consortium: JNU; Jammu; Kashmir; Sikkim (2012-2020) and the Making SIS Visible (2008-2013) as well as contributes as the Editor-in-Chief of Environmental Policy and Law (Sage: Amsterdam).