The story so far: In the wake of the Russia-Ukraine standoff, Karim A.A. Khan, the prosecutor of the International Criminal Court (ICC), located in The Hague, The Netherlands, said on February 28, that he will open an investigation into the situation in Ukraine “as rapidly as possible”. He believes that both war crimes and crimes against humanity have been committed in Ukraine.
In the past few days, Ukrainian authorities have accused Russian forces of targeting civilian and residential areas, with the country’s president Volodymyr Zelensky terming it “undisguised terrorism”.
Mr. Khan said that while Ukraine is not a state party to the ICC, it has accepted the court’s jurisdiction in its territory twice in the past, adding that the investigation will be built upon what the ICC has found since 2013, while examining possible war crimes in Ukraine. Russia is also not an ICC member.
An Investigation was opened into Ukraine first in relation to deaths of countless protesters at the hands of security forces in early 2014 before the ouster of the country’s former pro-Russian leader. This was followed by Russia illegally annexing Crimea and backing separatist forces in the eastern Ukraine. This conflict between separatist and Ukrainian forces, continuing since 2014, has killed nearly 14,000 people till the start of 2022.
What is the ICC?
The International Criminal Court is a permanent court to prosecute serious international crimes committed by individuals. It tries crimes such as genocide, war crimes, crimes against humanity, and aggression. The court was established to fight global impunity and bring to justice criminals under international law, regardless of their rank or stature. This is not to be confused with the United Nations’ International Court of Justice, also at The Hague.
Before the ICC became functional in 2002, its founding treaty was adopted by the UN General Assembly in 1998 in Rome, Italy, thereby making it the Rome Statute.
To become a member of the ICC or State party to the Rome Statute, countries have to sign the statute and ratify it under their respective legislatures. 123 countries are currently members of the ICC, with African countries making up the largest bloc. Notably, countries including India, China, Iraq, North Korea and Turkey never signed the Rome Statute, while others including the US, Russia, Israel and Syria signed, but never ratified it.
How does the ICC function?
The court carries out its investigations through the Office of the Prosecutor and has 18 judges. Both the judges and prosecutors hold non-renewable nine-year terms. The current prosecutor of ICC, Mr. Khan, who was formerly serving as the special advisor to the UN Secretary-General, was preceded by Gambian lawyer Fatou Bensouda, who held the post of the prosecutor since 2012.
There are pre-trial, trial, and appellate benches in the ICC. The prosecutor conducts a preliminary examination in a matter, before seeking permission from pre-trial judges to open a full investigation. The initial examination must conclude that the crimes in question are of “sufficient gravity”.
The prosecutor can open an investigation in three ways: when a case is referred by a member country in its own territory; when a case is referred by the UN Security Council; and when the prosecutor takes up a case proprio motu or on his own. Non-member states can also be investigated in three ways: if alleged crimes were perpetrated by non-members in member states, if the non-members accept the court’s jurisdiction, or when the Security Council authorises it.
Since its inception, 30 cases, some with multiple suspects, have been opened before the ICC. It has so far convicted ten individuals and acquitted four; while issuing a total of 35 arrest warrants. 17 people have been detained by the ICC so far and 13 remain at large. 12 cases are currently in the preliminary investigation stage, while full-fledged investigations are going on in 15 cases.
What cases has the ICC dealt with in the past?
In 2011, the UN Security Council had referred the situation in Libya to the ICC, with allegations that Muammar Gaddafi, the then de facto leader of Libya, and his son and brother in law, were responsible for civilian killings during the Arab Spring protests. The court had issued arrest warrants against all three in June 2011, but Gaddafi died before he could be arrested and the warrant against his son could not be carried out and he remains at large to date. The ICC does not try any individuals till they are present in the courtroom, meaning Libya’s case has been stuck.
Similarly, ICC had issued arrest warrants in 2009 and 2010 against former Sudanese head of state Omar Al Bashir for alleged war crimes related to murder, torture, rape, attacking civilian, pillaging, and other serious crimes. Bashir evaded arrest for years and is now under the Sudanese military’s arrest, but it is not certain when they will extradite him.
Looking at the recent past, in November 2021, after concluding preliminary examination, the ICC decided to open an investigation into alleged crimes against humanity committed during Venezuela’s clampdown on anti-government protesters in 2017, when they were demonstrating against its president Nicholas Maduro’s controversial actions against opposition leaders. Venezuela is an ICC member.
In 2019, the ICC opened an investigation into alleged persecution of the Rohingya population across the borders of Myanmar and Bangladesh, resulting in the forceful displacement of an estimated 6,00,000 to one million Rohingyas from Myanmar to Bangladesh.
Investigation is also going on into alleged war crimes committed in Afghanistan since 2003, which is when it became an ICC member, but the path of the investigation has been a rocky one.
The prosecutor had started preliminary examination into alleged war crimes committed during the decades of conflict between pro and anti-government forces in 2007. The preliminary examination took a decade to complete, after which the ICC prosecutor requested the pre-trial bench of ICC to allow the opening of a full-fledged investigation into alleged war crimes committed by the Taliban, the Afghan security forces, and the U.S. military and Central Intelligence Agency (CIA). The pre-trial bench declined permission in 2019, citing that it would not be in the “interest of justice”.
It stated that a lot of time had elapsed since the preliminary examination and the political situation in Afghanistan had changed. It also mentioned the limited resources of the ICC, which should be used in more immediate cases, where investigations have a “better chance to succeed”.
The decision was criticised and the prosecutor approached the ICC’s appellate bench in 2020, which reversed the pre-trial bench’s decisions, authorising the prosecutor to commence an investigation. This meant, however, that the role of the US in the alleged war crimes would also be investigated.
The US legislature never ratified the Rome treaty of ICC, which was seen by observers as an attempt to shield its officials from being brought to justice. When the ICC gave a green signal to the Afghanistan investigation, it received pushback from the White House. Former President Donald Trump’s administration issued sanctions against ICC officials, from freezing the assets of ICC employees in the country to preventing ICC investigators from entering the US by placing Visa restrictions.
While the new administration of Joe Biden revoked the sanctions in 2021, it did not mean extending support for the investigation. The investigation met another roadblock as US troops exited Afghanistan in August last year, after which Taliban took control of Kabul.
While investigations are ongoing into alleged war crimes committed in countries including Palestine, Burundi, Côte d’Ivoire, Kenya, Libya and Mali; some convictions have been made in cases from the Democratic Republic of Congo, Uganda and Mali.
Criticisms of the court
The court has been criticised for the pace of investigations and judgements. After 19 years of being active, the court has convicted 10 persons accused in a small number of cases and acquitted four individuals. Some experts question whether the time, efforts and financial resources invested in the court by member countries is worth the outcome. The court’s annual budget for 2021 was over $160 million.
Criticisms also hint at the fact that the court may be shying away from taking on western powers like the United States. This was pointed out first, when the court denied permission to start an investigation into Afghanistan in 2019, and second, when the current prosecutor wanted to restart the investigation after the Taliban takeover. Mr. Khan had essentially told the court that due to limited resources of his office, he would prioritise the investigation against crimes committed by the Taliban. This would temporarily set aside the alleged crimes that the former Afghanistan government and the U.S. may have perpetrated.
Another point of contention is that barring recent years, the court, since its formation, largely took up investigations into alleged crimes committed in African countries. All of the nearly 30 cases currently in the trial stage before the court are from African countries. The African Union in 2016 had endorsed a proposal led by Kenya for a mass withdrawal from the Rome Statute. The vote on this proposal, however, was symbolic.
