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Advances in Social Sciences Research Journal – Vol.7, No.9

Publication Date: September 25, 2020

DOI:10.14738/assrj.79.8845.

Nwinkol, B., & Kia, B. (2020). The International Criminal Court And Its Major Obstacles Since Formation. Advances in Social Sciences

Research Journal, 7(9) 76-86.

The International Criminal Court and Its Major Obstacles Since

Formation

Nwinkol, Barinaadaa

Department Of History And International Diplomacy

Faculty Of Humanities, Rivers State University

Portharcourt

Dr. Kia, Bariledum

Department Of History And International Diplomacy

Faculty Of Humanities, Rivers State University

Portharcourt

ABSTRACT

Global quest for the prosecution of heinous crimes of concern to the

international community as a whole especially genocide, war crime,

crime against humanity, and the crime of aggression committed by

individuals led to the establishment of the International Criminal Court

(ICC) on July 1, 2002. The court had however, not performed optimally

due to some challenges. This paper set out to discuss the militating

factors in the execution of the court’s mandate. Using the realist theory,

the rational behind the attitude of India, China, Russia and the United

State (all major non-state parties) in sabotaging the court’s effort is

succinctly assessed. After pointing out other factors affecting the court,

its way out of some of these problems was laid bare. The paper

concludes that the court must make concerted efforts to replicate

criminal prosecution in other parts of the world other than Africa to

earn the required credibility and legitimacy it sorts. At the same time, it

would have to lobby to ensure that major non-state parties, especially

the United States, etc. accede to the Rome statute.

INTRODUCTION

Following reported cases of numerous and intolerable situation of extreme cruelty perpetrated by

national leaders, there was consensus on the need for the information of an institution that could

be potent enough to try alleged criminals across borders. The most provocating stimulus in these

circumstances were the brutalities of the two world wars especially those committed by Adolf Hitler

(including the killing of six million Jews in a gas chamber). The Nuremberg and Tokyo military

tribunals were set up to try the Axis vanquished war criminals (even if the crimes were committed

by Allies as well), serving as the first court of that nature. Years later when such heinous crimes

were committed in the former Yugoslavia (1993) and Rwanda (1994), two similar tribunals were

setup. These were respectively called the International Criminal Tribunal for the Former Yugoslavia

(ICTY) and the International Criminal Tribunal for Rwanda (ICTR).

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URL: http://dx.doi.org/10.14738/assrj.79.8845 77

Nwinkol, B., & Kia, B. (2020). The International Criminal Court And Its Major Obstacles Since Formation. Advances in Social Sciences Research Journal, 7(9)

76-86.

The international criminal court was however established on July 1, 2002 after its been ratified by

60 State Parties. Earlier, the Rome statute (the constitution of the ICC) was adopted by 120 states

on July 17, 1998. The main concern of the court was individual criminal responsibility that is,

persons, rather than states, were held responsible for crimes committed even when committed in

official capacity. The jurisdiction of this court were crimes of concern to the international

community as a whole. These crimes are genocide, war crimes, crime against humanities and the

crime of aggression (Rome Statute Article 1).

State Parties were also given responsibility by the Rome Statute. These duties includes: cooperation

in investigation of alleged criminals and surrender, the identification and whereabouts of persons

and location of items; the execution of searches and seizures; provision of records and documents,

including official records and documents, the examination of places or safes including exhumation

and examination of grave sites, the temporary transfer of persons as provided in paragraph 7;

facilitating the voluntary appearance of persons as witness or experts before the court; etc. An

Assembly of State Parties was created to facilitate the execution of the above responsibilities.

However, the court suffers multiple challenges from internal mechanisms and structural defects, to

the behaviour of State and non-State Parties. The United State for instance, is strongly opposed to

the court despite initially signing the Rome Statute (Yakubu, 2012:135). This paper therefore

probes into the reasons why powerful nations like the United States of America, Russia, China, etc.

have refused to ratify the Rome Statute there by posing a great challenge to its credibility. It also

made an attempt to suggest other impediments to the execution of the ICC’s mandates.

THEORETICAL FRAMEWORK

This paper adopts the theory of realism. This theory sees humans as being characterized by their

own selfish well-being as they compete and interact with one another. Their wish is not to be taken

advantage of. In realist thinking, humans desire to enjoy an advantage over others and equally avoid

been dominated by others. This applies to international politics. The main interest of all states is to

advance and defend the interest of their nation in world politics. The core assumption held by realist

is that world politics unfolds in an international anarchy (a system with no supreme authourity, no

universal government).

National interest is therefore the ultimate determinant in judging foreign policy. To them, there is

no morality in international relations/politics which is an arena of considerable turmoil, discord

and conflict between states in which the strongest powers dominate all others. In this atmosphere

therefore, states cannot be trusted. According to Jackson and Sorensen (2007:60-61) in realist

thought:

All international agreements are provisional and conditional on the willingness of states

to observe them. All states must be prepared to sacrifice their international obligations

on the altar of their own self-interest if the two come into conflicts that makes treaties

and all other agreements, conventions, customs, rules, laws and so on between states

merely expedient arrangements which can and will be set aside in the conflict with the

vital interest of dates. There are no international obligations in the moral sense of the

word – i.e. bonds of mutual duty-between independent states.

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Advances in Social Sciences Research Journal (ASSRJ) Vol.7, Issue 9, September-2020

Some of the most outstanding proponents of realism are Thucydides, Thomas Hobbes, Nicollo

Machiavelli and Hans Morgenthau.

In the paper at hand, many key players in the international system sees the ICC as an institution

capable of undermining their sovereignty. This line of reasoning has made the USA, Russia, China,

India, etc. not to ratify the Rome Statute till date. These states, and other non-state parties, feels that

the court will hamper or control their activity in the international arena and consequently affect

their foreign policy and national interest. For instance, the USA fears that if it joins the court, the

activities of its military engage in foreign intervention will be checkmated and be prosecuted by the

ICC in the event of wrong doings.

This is the same situation with India who fears that membership of the court will affect the method

of dealing with Pakistan over the disrupted Kashmir region. The absence of these powerful states

in the ICC had therefore, in-no-small measures, affected the court as they continually device means

of tarnishing its credibility and legitimacy.

It is hoped that the attitude of states, parties and non-parties, towards the ICC will be understood

using this theoretical perspective.

NON-STATE PARTIES AS A STUMBLING BLOCK TO THE EFFECTIVENESS OF THE ICC

In this section, the reasons why certain countries refused to ratify the Rome Statute will be carefully

examined. Efforts made by some of these state to undermine the court and its effectiveness will also

be laid bare. Some key states to be examined are; India, China, Russia and the United States of

America.

India

All member states of the United Nations (states with treaty-making capacities) have either signed

or acceded to the Rome Statute of the International Criminal Court except forty one (41) states.

These states have neither signed nor acceded to the Rome Statute (not to talk of ratifying it). On the

other hand, thirty-two states have signed but not ratified the Rome Statute. India is one of the state

that have neither signed nor acceded to the Rome Statute. It should be noted however, that Israel,

Sudan and the United States signatures had been unsigned in line with article 18(a) of the Vienna

Convention of the Law of Treaties (1969). India out-rightly abstained from voting at the

International Conference of Plenipotentiaries that adopted the Rome Statute in 1998. The reasons

for abstaining were enumerated by Usha (2005: 627-634):

There was a sense of disbelief among the Indian delegation as the overwhelming support

for the statute moved through improbability, and possibility, to fact. It continues to be

difficult for the Indian establishment to reorients reality to account for an international

community that willingly hands over a mandate for justicing to an institution beyond

the territory, amending ability and influence of the individual state.... The Indian

establishment’s resistance to accepting the inherent jurisdiction of the ICC is explained,

in part, by how investigation, prosecution and justicing in the Indian system may be

judged by an international court. Some episodes in India’s recent history weaves

themselves into tales of impunity. In March 2002, the complicity of the state in targeted

violence against Muslims, who are a majority in the state of Gujarat, in avowed