A Critical Analysis of the International Criminal Court: Its Significance, Drawbacks and Future Roadmap

By Ifra Jan* and Karmanye Thadani**

Introduction

One of the most important driving forces behind the decision to establish the United Nations was the prime determination “to save succeeding generations from the scourge of war, which twice in their life time had brought untold sorrow to mankind”. However, even after the formation of the United Nations, several armed conflicts and wars continue to inflict pain and suffering. In this consideration, the Humans Rights Committee during its sixteenth session in 1984 observed that “war and other acts of mass violence continue to be a scourge of humanity and take the lives of thousands of innocent beings every year”.

Generally, in situations of conflict arising from the territoriality principle, states have the power to take jurisdiction over the crimes committed within their territory, which is inherently defined under their sovereignty. However, under nationality principles, states would assume jurisdiction over the crimes committed by their nationals outside the boundaries. In the exercise of their sovereignty, states can delegate the task of trying a particular type of offence to an international body. This was done after World War II and, more recently, after the conflicts in the Balkans, in Rwanda, Sierra Leone, Timor Leste and to a less extent in Cambodia.

Before the inception of the International Criminal Court (ICC), a brief introduction to the two ad hoc tribunals, International Criminal Tribunal for the former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR), is important, as this would further highlight the importance of the ICC. Firstly, the United Nations Security Council set these ad hoc tribunals in order to exercise and maintain its security and peace powers which are defined under Chapter VII of the UNSC charter (Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression). Secondly, these tribunals shared their respective jurisdictions with the national courts (like the ICC as well), however, there was no mention anywhere that the decision of the tribunals shall supersede the national courts (unlike the ICC). Lastly, the tribunals only served at a specific location under a special time frame and were subjected to selective justice, which failed to transpire into the world at large, which was facing similar crises during the same time.  

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The Dog That Didn’t Bark: The curious silence of the UN Security Council on Omar Hassan Ahmad Al-Bashir

The Dog That Didn’t Bark[1]

by Neha Bhat

In March 2005, the UN Security Council (UNSC) referred the Darfur ‘situation’ to the International Criminal Court (ICC), making it the first referral of its kind. UNSC Resolution 1593 was adopted under Chapter VII of the UN Charter with 11 votes in favor,[2] and 4 abstentions.[3] The Resolution was hailed as a major step towards strengthening the fight against impunity for the ‘crimes against humanity’ committed in Darfur against the indigenous Fur, Zaghawa and Massalit tribes.

Pursuant to Resolution 1593, the ICC opened preliminary investigations into the Darfur ‘situation’ and on July 14, 2008, then ICC Prosecutor Luis Moreno-Ocampo filed an application for issuance of warrant of arrest for Omar Hassan Ahmad Al-Bashir (Al-Bashir), the sitting President of Sudan, before the Pre-Trial Chamber I (PTC I). The first warrant of arrest against Al-Bashir was issued by the PTC I on March 4, 2009 covering murder, torture, rape, and intentionally directing attacks against the civilian population. On a subsequent application filed by the Prosecutor’s Office, a second warrant of arrest against Al-Bashir was issued by the PTC I on July 12, 2010 on three counts of genocide.

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Al-Bashir, and Cursus Curiae of the ICC and South African Supreme Court.

By Sujoy Sur

South African executive’s open defiance of its Supreme Court’s order to arrest Omar Hasan Ahmad Al-Bashir is an issue which had attracted a great many concerns from many corners of the international arena, and rightly so. The concern is that Mr. Al-Bashir is an international criminal and South Africa, a country which  has signed the Rome Statute (ICC) and is a committed actor to international peace and security (member of UNSC and UN Charter), should have have acted in accordance with International law. Instead, South Africa invited Al-Bashir to the African Union summit and allowed him to leave the country despite the Court’s order.

Background

Omar Al-Bashir is the president of Sudan. Yes, the same country which got divided into two, into a new South Sudan, which went on to become the 193rd member of the UN General Assembly (UNGA). A referendum was held in January, 2011 in which majority of the population (99.83%) people voted for a South Sudan. The reason for it’s independence, so to speak, are intertwined with that Al-Bashir’s indictment. South Sudan was deeply affected by Civil Wars which had torn the region apart. The first Sudanese civil war lasted from 1955-1972, the improper culmination of which lead to a second Sudanese civil war from 1983-2005. Many atrocities were committed during this period, out of which Omar Al-Bashir was held “individually criminally responsible for genocide, crimes against humanity and war crimes” committed in Darfur, since 2003. Allegations were pitched against Al-Bashir formally by the Chief Prosecutor of ICC, Luis Moreno Ocampo, in July 2008. An arrest warrant was issued against him by a Pre-Trial chamber composed of judges Akua Kuenyehia of Ghana, Anita Usacka of Latvia, and Sylvia Stenier of Brazil indicting him on five counts of crimes against humanity (murder, extermination, forcible transfer, torture and rape) and two counts of war crimes (pillaging and intentionally directing attacks against civilians).Read More »