Amity Law School, Delhi.
It was hoped that a paradigm shift would take place when the Rome Statute was signed in 1998 which led to the establishment of the International Criminal Court in 2002. The Statute came into force after 60 member parties ratified it. However, the Court, over the years, had faced a lot of daunting challenges which has managed to reduce its efficacy to adjudicate war crimes and dastardly crimes against humanity.
The Court was set up with an aim to bring individuals of States who have committed such crimes before the court and punish them as per international guidelines provided under the Rome Statute. However, this practice has been futile. Over the years, countries in the middle east and northern Africa have escaped the scrutiny and jurisdiction of the International Criminal Court since they have not ratified the Statute and are hence, not liable for prosecution under the Statute. Moreover, superpowers like the United States, Russia, China and even India have kept a distance in order to escape the jurisdiction of the Court. It is pertinent to note that all these countries are yet to ratify the Rome Statute and are hence, not bound by it.
Before the inception of the International Criminal Court, the United Nations had set up ad hoc Tribunals to adjudicate matters related to crimes against humanity especially in countries like Yugoslavia (1993) and Rwanda (1994). However, this practice had short term implications. Ad Hoc Tribunals are set up to provide temporary relief and are consequently dissolved after their utility has been exhausted. The Court was set up to abandon this practice and move towards a more robust and efficient mechanism which has a long term impact.
It is crucial to understand that the enforcement of international law is a daunting task. No State likes interference in its internal matters. Scholars and academicians, over the years, have argued that the prosecution of individuals and States over the years has often been politicised. Trials in Nuremberg and Tokyo provide a clear indication of politicisation. Moreover, ad hoc tribunals set up for Yugoslavia and Rwanda also had political reasons behind it. The abovementioned instances clearly aimed towards providing justice to the victor instead of protecting the human rights of the citizens. Moreover, African nations, too, have accused the International Criminal Court of partiality in indicting leaders of most African nations. Thus, it can be safely argued that international institutions are by and large influenced by powerful nations.
State Sovereignty versus International Justice
As discussed earlier, most of the global population is confined to nations who refused to ratify the Rome Statute. This has become one of the major factors in limiting the jurisdiction and the importance of the International Criminal Court in adjudicating international crimes.
The sovereignty of any State is its paramount objective. No State wants any other State or institution to interfere in its internal matter or any other matter which threatens its sovereignty. This is precisely the reason behind the refusal of States to ratify its treaty.
Over the years, countries like the United States have shown apprehension towards the trustworthiness of the prosecution which takes place before the Court. The United States has alleged that the prosecutors are partial towards the American cause. It is also important to understand that the United States (and Russia) is still not over the Cold War era hangover and wants to maintain its hegemony.
A crises situation emerged in 2011 when the Arab spring started in Tunisia and eventually spread across the entire north-Africa and the middle-east. The governments of the respective states undertook extreme measures to suppress the politico-democratic movement. The movement saw the collapse of governments and leadership in countries like Libya and Egypt and civil war in countries like Syria.
It was evident that the role of the International Criminal Court was reduced since none of the abovementioned states had ratified the Rome Statute and hence, did not come under the jurisdiction of the International Criminal Court. The nationals of these countries had to undergo extreme violations of human rights. Moreover, superpowers like United States and Russia, who were part of the proxy war, turned a blind eye towards this cause. We must understand that developed countries are equally responsible for the inefficiency of the International Criminal Court.
American airstrikes in Syria and Russian annexation of Crimea received widespread condemnation from the international community but the International Criminal Court is helpless in bringing the perpetrators to justice since these States are not member parties to the Statute. India, too, has shown resistance in ratifying the treat due to the alleged claims of human rights violation in the Jammu and Kashmir region
Lack of enforcement powers and support from states
It is evident that international judicial institutions lack enforcement powers. Institutions like International Court of Justice and Permanent Court of Arbitration also suffer similar predicament. International Criminal Court, too, has received criticism because of lack of enforcement powers.
The Court is totally dependent on the UN enforcement agencies and the member States in bringing the accused individuals before the Court. It is crucial to understand that many Member states refuse to abide by such guidelines despite ratifying the Statute. Due to lack of enforcement powers, the trial of the accused person keeps pending before the Court.
Omar Al-Bashir of Sudan has been accused of such crimes but due to lack of cooperation from Sudan his trial has been pending before the Court. Due to lack of support, local military leaders and despotic rulers continue to violate the human rights of the people without having to answer for their crimes. Ratification of the Rome Statute and State cooperation are completely distant from each other. Such lax approach by the member States disrupts the functioning of the Court. Diplomacy is the key to bring such people before the Court.
Lack of support from the UN Security Council has also prevented the smooth functioning of the Court since China, United States and Russia have not ratified the treaty. United States and Russia regularly deploy their troops to counter each other and are apprehensive of any interference from the Court which could threaten their interests. Moreover, both of them have the veto power over the cases adjudicated by the Court.
It is fundamental that the Court starts receiving support from such States.
What should be done?
The institution is still at a nascent stage. It can take inspiration from the fact that other institutions like the International Court of Justice and the Permanent Court of Arbitration took decades to reach their desired goals. The immediate task of the Court is to seek as much assistance from the member states and not drown into irrelevance. It must take encouragement from the fact that ad hoc Tribunals which were set up in Yugoslavia (1993) and Rwanda (1994) are properly functioning today.
The Court must also look into its internal functioning. The Court lacks sufficient manpower to adjudicate cases on a timely basis. Limited administrative officials and Prosecutors hinder the functioning of the Court. The Court must look into the prospect of appointing a team of efficient and able Prosecutors. Moreover, the Court must seek financial assistance from the Member States and the United Nations to meet its administrative costs.
The Court must formulate strict ground rules to bring the perpetrators to justice. Recent controversies surrounding Omar Al-Bashir and the Darfur uprising have exposed the weakness of the Court in coordinating with the States to hand over criminals charged by the Court. The Court finds itself in confusing situations due to such instances. The Court must encourage the international community including powerful nations like the United States in imposing economic sanctions and prohibiting aid to countries which fail to coordinate with the Court in handing over the criminals. The Court must tighten its leash over countries like Myanmar, Afghanistan, Israel etc who have continuously been accused of such crimes.
Another strategy of the Court should be to convince countries like United States, Russia and China to ratify the Statute. This would enable the Court to adjudicate matters expeditiously. If the ratification takes place, the Court would receive unanimous support not only from these States individually but also from the UN Security Council. This would allow the Court to convict criminals on a priority basis. But this still remains a monumental task as the United States and Russia are fully committed towards their ``war on terror`` and countering each other, especially in the middle-east.
Another compelling task is to streamline the aspirations of the majority of the UN Security Council members. While the UK and France have ratified the treaty, it is a formidable task to bring the United States and Russia together on the discussion table. Ultimately, the interests of one nation have to be sacrificed which is unlikely to happen.
Finally, the fundamental aim of the Court must be to prosecute such criminals otherwise it will continue to face international opposition. The Court must fulfil the task it had envisaged. The long term efficacy of the Court strictly hangs on its ability to perform one task, i.e., to punish international criminals.
A judicial institution will always be judged on the basis of its utility and the International Criminal Court is no different. Even though it is still an adolescent institution but continuous opposition will render its functioning useless. It is important that the Court must enforce flexibility and improvise its functioning.
 Shaun Walker and Owen Bowcott, Russia withdraws signature from the International Criminal Court Statute (Nov. 16, 2016, 2:14 PM), https://www.theguardian.com/world/2016/nov/16/russia-withdraws-signature-from-international-criminal-court-statute  Lesley Wroughton, U.S. imposes visa bans on International Criminal Court investigators – Pompeo (March 15, 2019, 7:56 PM), https://www.reuters.com/article/uk-usa-icc/u-s-imposes-visa-bans-on-international-criminal-court-investigators-pompeo-idUSKCN1QW1ZH Lydia Polgreen, Arab Uprisings Point Up Flaws in Global Court (July 7, 2012) https://www.nytimes.com/2012/07/08/world/middleeast/arab-spring-reveals-international-court-flaws.html  Paul Roderick Gregory, International Criminal Court: Russia`s Invasion of Ukraine is a `Crime`, Not a Civil War (Nov. 20, 2016, 10:20 AM) https://www.forbes.com/sites/paulroderickgregory/2016/11/20/international-criminal-court-russias-invasion-of-ukraine-is-a-crime-not-a-civil-war/#5633790e7ddb  Usha Ramanathan, India and the ICC, World Affairs (2001), https://frontline.thehindu.com/static/html/fl1807/18070670.htm  Joan Nyanyuki, Sudan: Former president Omar Al-Bashir must be tried by ICC for war crimes (April 17, 2019, 4:28 PM), https://www.amnesty.org/en/latest/news/2019/04/sudan-former-president-omar-al-bashir-must-be-tried-by-icc-for-war-crimes/  Tiina Intelmann, The International Criminal Court and the United Nations Security Council: Perceptions and Politics (May 28, 2013, 11:53 AM), https://www.huffpost.com/entry/icc-un-security-council_b_3334006  Claire Felter, The Role of the International Criminal Court (May 30, 2019), https://www.cfr.org/backgrounder/role-international-criminal-court