Investigations on the ICC

Introduction

International law and governance can be traced back to 1920 when the League of Nations was created to sort and mitigate conflicts on an international scale. [1] After WWII an increase of Inter-governmental organisations (IGOs) with differentiated functions occurred, one of which was the international courts. The International Criminal Court (ICC) has been and continues to be an unignorable actor in this aspect of global politics. According to the ICC, “The Court is participating in a global fight to end impunity” [2] The functions of the international court have proven to be useful before. However recently, the efficacy of international law and inter-governmental organisations has become an overt issue that requires review and changes. Especially when regarding major international conflicts such as the recent Russo-Ukrainian war in which the ICC was largely futile. This event has brought forth the long disregarded issue of the purpose of international laws and courts, and how they can and cannot be fulfilled. 

Certainly at the centre of the fault is the problem all IGOs suffer from, the lack of authoritative power over member states. This issue stems from the hypocrisies of member states and the inherent toxic nature of sovereignty when used in contexts of taking actions to adjudicate government officials who were or are currently in power. Another flaw that is constantly discussed is the fact that the ICC is subordinated to the United Nations Security Council, another arguably corrupt IGO. These topics will be further explored through case studies and critics in the sections below.

The following notes and arguments will discuss many aspects of the ICC including features and history, the two case studies of Uganda and Cambodia as examples to explore the positives and negatives of the court as well as summarise the major past critics and defences of it. The content of the essay will mainly be composed of cited information from the ICC or affiliated organisations, academically peer-reviewed articles, and personal thoughts regarding the research. The possible biases of the sources will be outlined along with the information they provide. 

The central thesis of the essay is that the ICC in current times is dysfunctional and requires radical changes to serve the purpose of being the permanent international court without bias and prejudice. Radical changes refer not only to internal changes in policy and structure but also to the member states’ relationship to the ICC and biases towards certain cases. The essay will focus on the relationships between the member states and the court, as well as the hypocritical nature of the member states when the judication concerns one of their authority figures.

History and Features of ICC

The International Criminal Court was created on 17 July 1998 when 120 member states adopted a statute named the Rome statute of the International Criminal Court, hence creating the first and only permanent international judicial authority working towards the goal of persecuting perpetrators of the most serious crimes that cannot be adjudicated within the perpetrator's home state. These crimes are categorized into four; crimes of aggression, crimes against humanity, genocide, and war crimes. [3]

The reason in which the ICC was created was the terrible war crimes that happened throughout the twentieth century. The Nuremberg trials of 1945 to 1946 against leaders of the Nazi German party was the first ever ad hoc tribunal held by the United Nations Security Council (UNSC). [4] An ad hoc tribunal refers to a process hosted by the UNSC of persecuting individuals who have committed war crimes, genocide, and other humanitarian atrocities. Later it was used to prosecute criminals of such crimes in the Rwandan Genocide in 1994 and Yugoslavia Wars from 1991 to 2001. [5] The United Nations General Assembly recognized this as an issue significant enough to require a separate and permanent international court to mitigate. Hence the creation of the International Criminal Court. 

The ICC is responsible for adjudication only when the state in question is not able or unwilling to put the individual in question within a national court. This is indicated by the process of preliminary examinations by the office of the prosecutor, investigation, summoning or issuing an arrest warrant for the suspect, pre-trial and trial processes, appeals, and finally enforcement. The arrest of the subject requires corporations from member states, and enforcement will require a member state’s willingness to take in and jail the suspect. The two ways in which the ICC will start an investigation are either through the will of the office of prosecutors or a UNSC resolution. The UNSC has more than influence in the ICC, but the UNSC is also one of the two only ways the ICC can launch an investigation. [6]

The crime of aggression refers to “the use of armed force by a State against the sovereignty, integrity or independence of another State.”, according to the ICC. It is differentiated due to not only being able to have an investigation started from a UNSC resolution but there is also a tedious process that requires six months of UNSC absence for the prosecutor to launch an investigation by themselves. Which again places a lot of power in the UNSC, and the negatives of that will be discussed below. The other difference is that for every other crime, the ICC can conduct a trial on any state or non-state force, however for crimes of aggression the member state had to have ratified the ICC amendments. [7]

The UNSC hasn’t been the most well-designed IGO as there are strong biases and power imbalances within the design of its systems. Only fifteen members are allowed to attend with five permanent superpowers holding the right to veto and the rest of the seats dictated by a rotating system including all member states. [8] The UNSC has been successful in many cases before such as their operations of emergency humanitarian aid and peacekeeping in post-Khmer Rouge Cambodia. [9] However, that is not the case when the leader in question is a leader currently in power with a superpower or superpower ally. 

No example can illustrate this point better than the ongoing Russo-Ukrainian war where the UNSC was essentially powerless to stop the warfare. This is partially because Russia has veto rights in the UNSC. However, that is not the only reason The UNSC isn’t able to make effective decisions on the war. On 27 February 2022, after a Russian missile struck an apartment building in Kyiv, the UNSC created resolution 2623 attempting to mitigate conflicts of the incoming warfare. This resolution initiated voting procedures in both security councils and the general assembly with no possible usage of veto rights. The results overwhelmingly supported the resolution that aimed to halt the warfare on both the security council and general assembly, though that did not at all affect the choices of Russia continuing to invade Ukraine. Hence demonstrating the uselessness of the UNSC when dealing with issues mainly affecting superpowers. [10] 

Later on 17th of March, 2023; the ICC finally finished its procedures and issued an arrest warrant for the Russian president Vladimirovich Putin and his children’s rights commissioner Maria Alekseyevna Lvova-Belova for allegations of war crimes and unlawful deportation of Ukrainian children into Russia. Ultimately this achieved absolutely nothing as both alleged suspects are well in power and cannot be arrested. The adjudication process also paused at the stage of pre-trial which defined the two suspects as innocent due to no judgment proving them guilty. [11] 

The ICC however does not only have dysfunctional features, some features can support the court’s goal of creating international peace by persecuting the aggressors that cannot be persecuted by their home state. One of these features is the trust funds system to aid the victims of the aggressors(s), which has helped with many cases such as Central Africa after the Yekatom and Ngaïssona Case, funded by the UK. [12]

Another pragmatic and useful feature of the ICC would be the option to reopen a case if more evidence is gathered by the prosecutor after a case closes due to a lack of evidence. This allows more time for the prosecutors to search for reasons for trial and therefore increases the chance in which the suspect is correctly punished for their crimes. [13]

Two Case Studies

Two case studies have been picked out due to their ability to illustrate the successes and failures of the system of the ICC. These two cases are the case of Uganda and Cambodia. 

Uganda was suffering from internal warfare between the Lord’s Resistance Army (LRA) and local national governance. The LRA is a militant power that arose around 1987 as an evolution of ‘the Holy Spirit Movement’ - a rebellion against Ugandan dictator Yoweri Museveni's oppression of the north of Uganda, led by Alice Lakwena. This group later was led by Joseph Kony and started focusing on self-preservation instead of its original revolutionary goals, which caused the group to start robbing and stealing supplies, as well as abducting adolescents to fill their ranks. The LRA terrorised northern Uganda for more than two decades, also influencing nearby nations such as Sudan and Central African Republic. [15]

The ICC started examinations and investigations about the LRA leaders starting from 2004, which erected two cases; Kony and Otti, and Ongwen. The former was the leader of the LRA after it transitioned to its current guerilla warfare group status and his deputy leader. The latter is one of the major commanders of the LRA. Raska Lukwiya and Okot Odhiambo were figures of the LRA also convicted, however, their cases were terminated due to their death. [16]

The case of Joseph Kony and Vincent Otti is still currently in the pre-trial stages due to the two remaining in the power of the LRA. Under their leadership, the LRA is currently hiding in regions of Sudan, the Central African Republic, and the Democratic Republic of Congo after pretending to be willing to sign a treaty of ceasing warfare for two years from 2006 to 2008. Then successfully evaded a joint operation between Uganda, the Democratic Republic of Congo, the Central African Republic, and Sudan, with intelligence and logistical support from the United States named Operation Lightning Thunder. Operation Lightning Thunder was an air raid that Joseph Kony somehow gained information about and escaped from. As retaliation, Kony decided to command the current ICC-indictee Dominic Ongwen to perform a massacre in villages of the Democratic Republic of Congo killing and abducting civilians. In 2009 LRA reprised the Christmas massacres in the Makombo region of northeastern Congo as a demonstration of power. After these events, the three major affected countries banded together with support from the US to counter the LRA. [17] Ultimately the role of the ICC in this case was minimal. The example demonstrates the flaw of the ICC in that they are only able to await military support from all states to capture suspects. The most they did in this situation was list the two leaders as suspects of over 20 war crimes that are not even officially criminals as they are innocent until the trial can be processed. [18]

This is not the case though for former Brigade Commander of the LRA Dominic Ongwen. As mentioned before, he was the executor of the Christmas massacre that occurred in the Democratic Republic of Congo in 2008. Taken into custody in 2014, he was charged with 61 crimes including all four categories of crimes adjudicated by the ICC. Through the trial, Ongwen was found guilty of all accusations, it was not until May 2021 that Ongwen was sentenced to 25 years in prison. In 2022 his appeals were rejected. Currently, Ongwen is waiting for a prison to contain him and remains in the ICC detention centre. The victim reparations are still being discussed currently. This case has been one of the most highlighted cases, it has successfully reprimanded one of the five convicted suspects which is a good ratio considering the difficulties of the process. However this again shows the ineffectiveness of the procedures, it took 8 years for Ongwen to be finally sentenced and he is still not imprisoned in an actual prison. [19]

One important factor of this case that should not be overlooked is its potential motives. Uganda President Yoweri Museveni is by definition a tyrannical dictator that has most definitely committed crimes that can be adjudicated by the international court. Some assume the reason that Uganda was so actively involved and motivated to push these two cases is due to it being a pragmatic distraction for the global community to ignore Museveni’s crimes while also instrumentalizing the ICC to remove threatening enemies. The attention that was drawn from the trials also helped Uganda gain military force through support from developed nations such as the US. [20]

The second example of the Cambodia tribunal is officially named the Extraordinary Chambers in the Courts of Cambodia (ECCC). The cases processed by this court are based on the historical revolutionary event of the Khmer Rouge led by former Cambodian prime minister and tyrant Pol Pot. Pol Pot was not convicted due to his death at the end of the Khmer Rouge regime. Even though the adjudication was performed in the national court of Cambodia, it still involved the ICC due to Khmer Rouge leaders’ offence against international humanitarian law. Hence it was considered a hybrid court of local and international staff. The primary goal of the tribunal was to provide justice and reparations to the Cambodian people who were victims of the Khmer Rouge regime's policies between April 1975 and January 1979. [21]

In 1997, Cambodia's two Co-Prime Ministers wrote a letter to the Secretary-General of the United Nations requesting assistance to set up trial proceedings against the senior leaders of the Khmer Rouge. After lengthy negotiations, an agreement between the Royal Government of Cambodia and the UNGA was reached and signed on 6 June 2003. In May 2006, Justice Minister Ang Vong Vathana announced that Cambodia's highest judicial body approved 30 Cambodian and United Nations judges to preside over the long-awaited genocide tribunal for surviving Khmer Rouge leaders. Though there were changes in judges in between, it did not affect the trial in significant ways. [22]

Many cases were completed in this tribunal, however, the most highlighted one would be Khieu Samphan. Khieu Samphan is a Cambodian former communist politician and economist who was the chairman of the state praesidium of Democratic Kampuchea from 1976 until 1979. He was known as the “Mr. Clean” of the regime, specialising in containing and killing protestors and rebels. Khieu Samphan, 91, was found guilty of genocide, crimes against humanity, and war crimes on September 22, 2022. Finally, 43 years after the end of the Khmer Rouge regime, the final leader of the regime has been definitively sentenced to life imprisonment for genocide, crimes against humanity, and war crimes. In 2022, Samphan was 91 years old. [23]

The negatives of setting up the hybrid tribunal are also obvious. The whole process required an incredible amount of resources, namely nearly 300 million dollars, 10 years of preparation, 13 years of hearings and appeals, as well as reparations to the victims of the Khmer Rouge. Another problem is the controversies generated by the tribunal which are cases 003 and 004. The subject of these cases is former Khmer Rouge leaders who switched sides to the current regime, therefore receiving less punishment. The court has also been criticised for its rejections of victim applications. A victim applying to participate in Case 003 was rejected because the judges claimed her psychological harm to be "highly unlikely to be true" and through a narrow definition of "direct victim". [24]

Through the analysis of the two cases, many advantages and disadvantages of the court are shown. The court is very good at finding ways to insert itself in conflicts that concern international law, such as the hybrid court of ECCC. This however allows it to be a tool for many political operations such as the assumptions made of the Uganda case. Not to mention many flaws the court has such as being expensive, not having a military force, and its controversial ways of dealing with certain cases.

Past Critics and Defenses

Lack of power and resources is at the centre of most issues with IGO governance, this is especially true for the ICC as they have the duty of adjudicating while not having any military power. This makes the entire process of getting the suspects to hearings very tough unless they are willing to be summoned, which is extremely uncommon. This flaw can be seen in many cases, such as that of Kony and Otti of Uganda, who are still at large and in power; and similarly, Putin and Belova. However, this flaw was most definitely not a surprise. The nation-states are assumed to be bound by IGOs’ resolutions or any other results, especially of the highest-order organisations such as UNSC, this is the basis of all IGO authorities. This however has rarely worked due to the hypocrisy of the nation-states. The leaders of nation-states have had a gargantuan track record of ratifying IGOs, and then twisting the rules or completely abandoning them when they are the ones in a bad situation. ​​The United Nations Security Council has been saying for decades that the Government of Lebanon must exercise control of its territory. Resolution 1559 of 2004 “Calls for the disbanding and disarmament of all Lebanese and non-Lebanese militias” and “Supports the extension of the control of the Government of Lebanon over all Lebanese territory.” By “Lebanese militias” the UN was referring to Hezbollah, an Islamic military group. In any event, the Government of Lebanon did not comply. [25]

Although the member states can choose to help and assist the goals of IGOs, often it is the IGOs that are used as a tool to serve the political and economic aims of member states. This is true for all IGOs but the ICC has been especially accused of it. A notable example would be the previously mentioned Uganda cases where many suspect Museveni of instrumentalizing the ICC to distract the global community from his human rights violations and gain resources from member states supporting the ICC. 

The ICC is often viewed as expensive and ineffective, this unwanted feature of the ICC has been solidified in nearly every case. Again relating to earlier cases, the ECCC Khmer Rouge tribunal has been an outstanding example of this. Using more than two decades and 300 million USD to settle 9 cases is quite the budget. That expense is paid by the member states and supporting IGOs such as the World Bank. The resources used could have been instead for aid or other meaningful operations. Even though reparations are included in the budget, lots of the expense is still used to just set up the court. [26] 

Even when the monetary expenditure is overlooked the time used up for each case is still remarkably huge. For Khieu Samphan, he lived freely over 4 decades after the collapse of the Khmer Rouge regime despite being one of the leaders who committed the most violations of human rights. When he did receive a life sentence, he was already 91. This makes it safe to assume he will not be spending much time in prison before he passes away, therefore the large time frame makes his crimes to some degree, left unpunished.

On the other hand, a major defence of the ICC would be the fact it can breach sovereignty at certain points to quickly resolve issues. This is usually an impactful flaw of the IGOs but with the help of the UNSC and allied states, the ICC can sort of breach that rule when the suspects are not willing to attend hearings. However, that breach again relies on the help and support of member nations, who because of this have obtained essentially permission to launch a war on the nation-state that the suspect controls. The allying nation-state would also be able to dictate the time it takes for the case to progress to some degree. 

Some improvements that would benefit the ICC as Cambridge professor of international relations Adam Branch suggests is being more cautious of the cases it chooses to interfere with and how they interfere. Such as examining the case of Uganda more carefully and setting up cases not only for the LRA but also for Museveni. [27] The ICC could also better its effectiveness when adjudicating cases as before mentioned. However, most importantly, the functions of the ICC would be massively enhanced if it was able to either get less influenced by the UNSC specifically when it comes to the compulsory pause on investigations of crimes of aggression, or have the UNSC be more just in its system so events such as veto right abuses would happen less. 

Conclusion

Through the explorations of the history, features, case studies, and critics and defences of the ICC, it is reasonable to conclude that in the current state, the ICC is a dysfunctional international court and authority that is not fully able to fulfil its purpose. Yet there is still potential in the court, if some improvements are made, the ICC can become an effective and important actor in global politics for reprimanding international crime and human rights violations.

References:

1. “The League of Nations | UN GENEVA.” UN GENEVA, 2023, www.ungeneva.org/en/about/league-of-nations/overview. Accessed 6 July 2023.

2. “About the Court.” International Criminal Court, 2023, www.icc-cpi.int/about/the-court. Accessed 6 July 2023.

3. INTERNATIONAL CRIMINAL COURT. Understanding the International Criminal Court Helping Build a More Just World. 2020.

4. “The Nuremberg Trials | the National WWII Museum | New Orleans.” The National WWII Museum | New Orleans, 2023, www.nationalww2museum.org/war/topics/nuremberg-trials. Accessed 10 July 2023.

5. “Ad Hoc Tribunals.” International Committee of the Red Cross, 28 July 2014, www.icrc.org/en/war-and-law/international-criminal-jurisdiction/ad-hoc-tribunals#:~:text=International%20tribunals%20have%20long%20enabled,crimes%20and%20crimes%20against%20humanity. Accessed 10 July 2023.

6. “How the Court Works.” International Criminal Court, 2017, www.icc-cpi.int/about/how-the-court-works. Accessed 11 July 2023.

7. Ibid

8. ‌“The UN Security Council.” Council on Foreign Relations, 2020, www.cfr.org/backgrounder/un-security-council. Accessed 11 July 2023.

9. “UNSDG | UN in Action - Cambodia.” Un.org, 2023, unsdg.un.org/un-in-action/cambodia. Accessed 11 July 2023. Ledgerwood, Judy. “UN Peacekeeping Missions : The Lessons from Cambodia.” Hawaii.edu, Honolulu: East-West Center, 2023, scholarspace.manoa.hawaii.edu/items/173718e6-a140-482b-937f-42e5f0acbedc. Accessed 11 July 2023.

10. Nichols, Michelle. “U.N. Security Council Calls Rare General Assembly Session on Ukraine.” Reuters, Reuters, 27 Feb. 2022, www.reuters.com/world/un-security-council-calls-rare-general-assembly-session-ukraine-2022-02-27/. Accessed 11 July 2023.

11. “Situation in Ukraine: ICC Judges Issue Arrest Warrants against Vladimir Vladimirovich Putin and Maria Alekseyevna Lvova-Belova.” International Criminal Court, 2023, www.icc-cpi.int/news/situation-ukraine-icc-judges-issue-arrest-warrants-against-vladimir-vladimirovich-putin-and. Accessed 11 July 2023.

12. “Written Statements - Written Questions, Answers and Statements - UK Parliament.” Parliament.uk, 2019, questions-statements.parliament.uk/written-statements/detail/2019-07-17/HCWS1729. Accessed 11 July 2023. “Yekatom and Ngaïssona.” International Criminal Court, 2013, www.icc-cpi.int/carII/yekatom-nga%C3%AFssona. Accessed 11 July 2023.

13. “How the Court Works.” International Criminal Court, 2017, www.icc-cpi.int/about/how-the-court-works. Accessed 12 July 2023.

14. ‌“History of the War | Invisible Children.” Invisible Children, 11 Oct. 2016, invisiblechildren.com/challenge/history/. Accessed 12 July 2023.

15. ‌Ibid

16. ‌“Uganda.” International Criminal Court, 2015, www.icc-cpi.int/uganda. Accessed 12 July 2023.

17. “History of the War | Invisible Children.” Invisible Children, 11 Oct. 2016, invisiblechildren.com/challenge/history/. Accessed 12 July 2023.

18. “Kony et Al.” International Criminal Court, 2015, www.icc-cpi.int/uganda/kony. Accessed 12 July 2023.

19. “Ongwen.” International Criminal Court, 2016, www.icc-cpi.int/uganda/ongwen. Accessed 12 July 2023.

20. Branch, Adam. Uganda’s Civil War and the Politics of ICC Intervention. Vol. 21, no. 2, 1 Jan. 2007, pp. 179–198, www.cambridge.org/core/journals/ethics-and-international-affairs/article/abs/ugandas-civil-war-and-the-politics-of-icc-intervention/4FA36D54501922BCE4EF5C34F64773E6, https://doi.org/10.1111/j.1747-7093.2007.00069.x. Accessed 12 July 2023.

21. “Introduction to the ECCC.” Extraordinary Chambers in the Courts of Cambodia (ECCC), 13 Oct. 2011, www.eccc.gov.kh/en/about-eccc/introduction. Accessed 12 July 2023.

22. Presse, France. “Timeline of the Khmer Rouge Tribunal.” Barrons.com, Barrons, 22 Sept. 2022, www.barrons.com/news/timeline-of-the-khmer-rouge-tribunal-01663825807. Accessed 12 July 2023.

23. ‌Thierry Cruvellier. “Khieu Samphan, the Last Khmer Rouge.” JusticeInfo.net, 22 Sept. 2022, www.justiceinfo.net/en/106843-khieu-samphan-the-last-khmer-rouge.html. Accessed 12 July 2023.

24. Ciorciari, John D, and Anne Heindel. “Experiments in International Criminal Justice: Lessons from the Khmer Rouge Tribunal.” University of Michigan Law School Scholarship Repository, 2014, repository.law.umich.edu/mjil/vol35/iss2/2/. Accessed 12 July 2023.

25. “What Happens When UN Security Council Resolutions Are Ignored?” Council on Foreign Relations, 2017, www.cfr.org/blog/what-happens-when-un-security-council-resolutions-are-ignored. Accessed 13 July 2023.

26. Business, African. “Who Pays for the ICC?” African Business, Oct. 2011, african.business/2011/10/economy/who-pays-for-the-icc. Accessed 13 July 2023.

27. Branch, Adam. Uganda’s Civil War and the Politics of ICC Intervention.