The establishment of the International Criminal Court on July 1, 2002, represented a significant milestone in international criminal justice, marking a crucial step towards ending impunity under international law.
The atrocities witnessed during the Rwandan and Bosnian crises underscored the need for a more efficient international judicial body as opposed to ad-hoc courts. Throughout history, various standalone tribunals have been established, such as the special court created by the Allied powers after the Second World War to prosecute defeated leaders. This led to ground-breaking trials such as the ones in Nuremberg and Tokyo, which laid the foundation for the international criminal justice system.
The Nuremberg trials shattered the concept of absolute sovereignty, establishing the principle that high-ranking officials could not evade accountability for heinous crimes such as genocide, war crimes, crimes against humanity, or aggression. This principle, enshrined in Article 27 of the ICC Statute, eliminates immunity for such crimes based on the “act of state” doctrine. This was a major development, ensuring that actions of national officials can be tried on an international level.
However, the ICC has faced criticism for perceived selectivity, particularly in its focus on African leaders, leading to backlash and accusations of unfair targeting. African leaders, some of whom have used sovereignty as a shield to evade accountability for human rights abuses, have raised concerns about the ICC’s approach.
Supporters of the ICC will argue that its policy towards African nations is justified, considering the scale of the crimes committed on the continent. From the Rwandan genocide to the post-election violence in Kenya and the humanitarian crises in Darfur, the ICC has intervened in situations where national jurisdictions failed to address mass atrocities. Critics, however, highlight the court’s emphasis on African cases while seemingly overlooking crimes in other regions such as Iraq, Afghanistan, Ukraine, Georgia and, until recently, the occupied Palestinian Territories. Political dynamics, including the interests of powerful states, influence the ICC’s operations and jurisdiction.
While the ICC should serve as a deterrent against crimes by holding leaders accountable, its perceived selectivity and susceptibility to political pressures have led some states to withdraw from the court, potentially undermining international efforts to strengthen criminal law enforcement.
Recent events involving the Hamas-led attacks in Israel on October 7 and subsequent military action by Israeli forces in Gaza have deliberately targeted civilians, civilian infrastructure and non-military targets, resulting in extensive casualties. The UN has condemned both sides and called for an end to the war that is approaching its ninth month.
According to the Rome Statute, the ICC Prosecutor has full authority to receive referrals and any substantial information about crimes within the jurisdiction of the ICC. Once the Office of the Prosecutor receives credible evidence that passes the admissibility test, it triggers the duty to examine and investigate the alleged crimes. The prosecutor also has the authority to appoint external legal experts to assist in specific issues. The prosecutor’s office has wide discretion to proceed with investigations, using a uniform and impartial approach for assessing sources, information and evidence.
In the examination of information and evidence pertaining to suspected crimes, the office will consider factors such as the trustworthiness and dependability of sources, information and evidence, scrutinising data from various origins to mitigate bias. The prosecutor has the authority to halt an investigation if there are no substantial grounds, or if continuing the investigation would not serve the interests of justice, with any decision requiring approval by the pre-trial chamber.
The crisis in Gaza has highlighted the role of mass media and new technology in pressuring international authorities to uncover and punish perpetrators and military leaders involved in major crimes, ultimately aiming to end the culture of impunity.
Non-governmental organisations, pressure groups and lobbyists have played a decisive role in supporting the ICC’s efforts against attempts to manipulate facts on the ground or hinder its pursuit of justice.
Despite criticism faced by the ICC, recent positions are maturing in upholding international justice. The recent announcement by Prosecutor Karim Khan regarding the submission of an application for arrest warrants against key leaders involved in the Gaza conflict is a significant step towards accountability.
This proactive measure is essential in fighting the culture of impunity and upholding justice for all, regardless of race, religion or ethnicity. Valuable lessons can be drawn from the Gaza conflict, showing that one does not need to be on the battlefield to expose heinous crimes.
In conclusion, the ICC plays a crucial role in holding individuals accountable for international crimes and ending the troubling culture of impunity. While criticisms exist regarding selectivity and political influences, recent developments show a positive shift towards upholding justice on a global scale.
By learning from past conflicts and using the power of media and technology, the international community can and must work towards a more just and accountable world for all.
