For an overview of the ICC, its development and structure, refer to the article.
The ICC has been subject to criticisms since its establishment.
Lack of executive/enforcement power:
Apart from the post-trial enforcement issue, the ICC also suffers from pre-trial enforcement problem as it depends completely on member states to arrest and transfer defendants. It is uncertain if States are willing to use their military or economic force to extricate an oppressive leader from their country. The ICC itself lacks the institutional resources to ensure that the defendants actually show up in Court as it has no police force of its own and has no reliably effective means to oblige States to cooperate. An illuminating example of this is the ICC’s request to arrest and surrender Sudan’s President Omar Al-Bashir for the commitment of the crimes under Article 5. The arrest warrant, first issued in 2009, was ignored by 19 different countries, 9 of with are signatories of the Rome Statute.
Due to weak enforcement power, the Prosecutor’s performance of gathering information would also be hindered. As noted by one commentator, “pursuing an ideal apolitical form of justice by ignoring the need for State support would only sap the [ICC’s] credibility”. This thus forces the Prosecutor to assess the likely State support before launching an investigation. It is precisely upon this consideration that the Pre-Trial Chamber ruled the investigation into Afghanistan would not be in the “interests of justice” by reason of the scarce cooperation obtained by the Prosecution.
Low Conviction Rates:
Connected with the above criticism is the questioning that it took the ICC 16 years to convict less than ten suspects. However, academics have analysed that because of the complexity of the crimes, “the sheer size of international trials with multiple crime sites, a high number of distinct charges”, the sheer amount of witnesses and volume of documentation per case all lead to a high degree of legal and factual compliance. Moreover, the ICC is not entirely to blame. Effective administration of justice in the context of the ICC requires the cooperation of the States concerned, which, as demonstrated above, is often lacking.
Some measures have been introduced to improve the situation. Under Rule 100, the ICC is now able to decide on the place of proceedings. Under Rule 68, previously recorded audio or video testimony of a witness is allowed to accelerate the trial.
Exclusive Focus on African Countries:
Many African countries have repeatedly criticised the ICC as being inappropriately political by only focusing on situations in Africa. At one extreme, some consider this seemingly unjustified practice as an attempt by the Western States “to keep African countries counties compliant to the dictates of the West and its allies” or “the sacrificial lambs in the ICC’s struggle for global legitimation”. So far, every convicted person has been African.
Despite the assertion, most of the African situations were referred to the ICC by African governments themselves. Secondly, it is the individuals but not the States that were suspected of exceptionally grave crimes and consequently subject to ICC criminal jurisdiction. Perhaps a better question to ask, is why the ICC is doing so little elsewhere. Thirdly, there is no evidence showing any of the ICC prosecutions in Africa were unjustified.
In January 2016, the Prosecutor of the ICC was authorised by the ICC Pre-Trial Chamber to start an investigation into the situation of Georgia, which is the first non-African situation under the Court’s jurisdiction. There is also an appeal against the Pre-Trial Chamber’s decision not to authorise an investigation into alleged war crimes committed by, inter alia, US Forces, CIA and members of international armed forces.
The above analysis has led some authors to conclude that the opposition to the ICC reflects the interest of some leaders to protect themselves from the Court’s scrutiny.
Lack of Resources:
While the ICC is directed to try the most serious crimes, it is given “a budget that enables only a handful of prosecutions per year”. Because of the small number of sitting judges, the ICC can hear only a limited number of cases at any given time. Without States’ support and cooperation, the ICC would have no funding, no defendants to prosecute, and no evidence with which to conduct prosecutions, all of which would go against the very purpose of setting up the ICC.
Despite the number of signatories to the Rome Statute, there are more than 70 States that have yet to join, including the world’s four most populous countries. This leaves the majority of the globe outside the legal jurisdiction of the Rome Statute. It should be recognised that the global legitimacy and the normative effect of the Rome Statute correlate positively with the number of ICC member States. The more States willing to assist the Court, the more effective it could become, for example, in the process of obtaining evidence or arresting suspects.
The example of Omar Al-Bashir above demonstrates cooperation even from signatory States remains lacking. The very design of the ICC entrenches a two-pillar system where the Court serves as the judicial pillar while States act as the enforcement pillar. Without State cooperation, the Court is rendered unworkable as it has no enforcement mechanism of its own. Furthermore, lack of cooperation could increase the operating costs and diminish the Court’s ability to deliver justice in the eyes of the victims. Worse still, it might give a false impression to perpetrators that impunity is permissible and would go unpunished, thereby undermining the Court’s credibility.
Babaian, Sarah. The International Criminal Court – An International Criminal World Court?. S.l.: Springer, 2018.
Bosco, David L. Rough Justice the International Criminal Court in a World of Power Politics. New York: Oxford University Press, 2014.
Schuerch, Res. The International Criminal Court at the Mercy of Powerful States: An Assessment of the Neo-Colonialism Claim Made by African Stakeholders. The Hague: T.M.C. Asser Press, 2017.
Triffterer, Otto and Kai Ambos (eds). Commentary on the Rome Statute of the International Criminal Court. 3rd ed. München: Beck, C H, 2015.
Last Updated: September, 2019
Author: Frankie Wong