International Criminal Court (ICC) Vs International Court of Justice (ICJ) | UPSC

International Criminal Court: Structure and Mandate

• Context: In December 2023, a case brought by South Africa against Israel in the International Court of Justice (ICJ) alleging that Israel is responsible for violations of the Genocide Convention in respect of its actions taken in Gaza.
• Also, the International Criminal Court (ICC) made news in 2023 for issuing an arrest warrant for war crimes against Russian President Vladimir Putin.
  • • Russia is not a member of the ICC. It was unclear how the ICC planned to enforce the warrant.
    • As a judicial institution, the ICC does not have its own police force or enforcement body; thus, it relies on cooperation with countries worldwide for support, particularly for making arrests, transferring arrested persons to the ICC detention centre in The Hague, freezing suspects’ assets, and enforcing sentences.

Analysis

• The International Criminal Court (ICC) was established in 2002 by the Rome Statute – the founding treaty of the Court.
• It is the first permanent, treaty-based, international criminal court.
• English, French, Arabic, Chinese, Russian and Spanish are the 6 official languages of ICC.
• The ICC is an independent international organisation, and is not part of the United Nations system.
• Its seat is at The Hague, a city in the Netherlands.
• Although the Court’s expenses are funded primarily by States Parties to the Rome Statute, it also receives voluntary contributions from governments, international organisations, individuals, corporations and other entities.

Four categories of crimes

• The court has jurisdiction over four categories of crimes under international law:
  • • genocide, or the intent to destroy in whole or in part a national, ethnic, racial, or religious group;
    • war crimes, or grave breaches of the laws of war, which include the Geneva Conventions’ prohibitions on torture, the use of child soldiers, and attacks on civilian targets, such as hospitals or schools;
    • crimes against humanity, or violations committed as part of large-scale attacks against civilian populations, including murder, rape, imprisonment, slavery, and torture; and
    • crimes of aggression, or the use or threat of armed force by a state against the territorial integrity, sovereignty, or political independence of another state, or violations of the UN Charter.

Investigation into possible crimes

• ICC can initiate an investigation or prosecution in three different ways:
  • • If the given crimes were committed on the territory of a State Party or by one of its nationals.
    • United Nations Security Council requests ICC to launch an investigation.
    • It may initiate investigations proprio motu (on its own initiative) on the basis of information received from reliable sources.

The Court can investigate individuals from non-member states if:

• • • the alleged offenses took place in a member state’s territory,
    • the non-member state accepts the court’s jurisdiction, or
    • with the Security Council’s authorization.
• It only exercises jurisdiction over crimes that occurred after its statute took effect in 2002.
• No immunity is granted to any person acting in an official capacity as a head of state, member of government or parliament or as an elected representative or public official.
• For the first time in the history of international criminal justice, victims have the right to participate in proceedings and request reparations.
  • • This means that they may not only testify as witnesses, but also present their views and concerns at all stages of the proceedings
• Under the Rome Statute, the International Criminal Court (ICC) can only investigate and prosecute for international crimes in situations where states are “unable” or “unwilling” to do so themselves; the jurisdiction of the court is complementary to jurisdictions of domestic courts.
  • • This fundamental principle is known as the principle of complementarity.
• The ICC has jurisdiction over the gravest instances of atrocity crimes and targets only the highest priority perpetrators of these crimes.
• The ICC prosecutes individuals, not organizations or governments.
• The UN Security Council is empowered, under the Rome Statute, to refer complaints against non-member nations to the International Criminal Court.
  • • Cases are referred to the court by national governments or the United Nations Security Council.

Judges of the International Criminal Court

• Candidates for election to the Court need to be nationals of States Parties to the Rome Statute.
• The court has eighteen judges, each from a different member country and elected by the member states.
• It requires its members to seek a gender-balanced bench, and the judiciary must include representatives of each of the United Nations’ five regions.
• Judges and prosecutors are elected to non-renewable nine-year terms.

Members of the International Criminal Court

• There are 124 countries party to the Rome Statute.
  • • Some forty countries never signed the treaty, including China, Ethiopia, India, Indonesia, Iraq, North Korea, Saudi Arabia, and Turkey.
    • Several dozen others signed the statute, but their legislatures never ratified it. These include Egypt, Iran, Israel, Russia, Sudan, Syria, and the United States.
• Armenia recently became the latest country to ratify Rome Statute in November 2023.
• Burundi withdrew from the ICC effective October 2017, and the Philippines gave notice of withdrawal in March 2018, which goes into effect one year later.
• Although the U.S. was part of the founding movement to build the ICC to try cases of genocide and war crime, especially after the courts in Rwanda failed, it decided not to ratify the Statute in 2002.
• Countries like Russia, China and India, however, were never in favour of the Rome Statute or the ICC, and never signed on.

Why India does not join ICC

• For India, the decision was based on a number of principles.
  • • To start with, the ICC is a criminal court, unlike the International Court of Justice (which adjudicates on civil matters), and arrogates to itself the right to prosecute matters against countries that aren’t even signatories.
    • India said that the Statute gave to the UN Security Council a role in terms that violates international law by giving the power to refer cases to the ICC, the power to block such references and the power to bind non-State parties to such decisions.
    • India also objected to the omission of cross-border terror, use of nuclear arms and weapons of mass destruction from the areas the ICC would institute its investigations.

International Criminal Court (ICC) Vs International Court of Justice (ICJ)

• The ICJ and ICC are often confused with each other, and while both courts sit in The Hague, Netherlands, that is about where the similarities end.
• While the ICC prosecutes individuals, the ICJ settles disputes between states.
  • • For example, much of ICJ’s work is devoted to settling the boundary lines (maritime or land) between States.
• The ICJ has been around since 1945, whereas the ICC is a much more recent institution that has only been operating for about 20 years.
• The ICC is not part of the UN whereas the ICJ is the principal judicial organ of the UN.
• The ICC is a criminal court, unlike the ICJ which adjudicates on civil matters.
• The ICC is composed of 18 judges for a non-renewable nine-year term while ICJ is composed of 18 judges for a renewable nine-year term.
• India is not a member of ICC whereas ICJ, being an organ of United Nations, includes India as its member.

Genocide at the ICJ versus Genocide at the ICC

• Both the ICC and the ICJ are equipped to address the matter of genocide, but in two different ways.
• The ICJ can consider whether a State has committed genocide under the Genocide Convention.
• The ICC, on the other hand, prosecutes genocide as a crime committed by individuals.
• The definition of genocide is the same at both the ICC and ICJ.

References:

https://www.thehindu.com/news/international/international-criminal-court-issues-arrest-warrant-against-vladimir-putin-over-ukraine-war-crimes/article66632525.ece

https://www.cfr.org/backgrounder/role-international-criminal-court

https://research.un.org/en/docs/law/courts

https://www.icc-cpi.int/sites/default/files/Publications/JudgesENG.pdf

Practice Questions:

Q 1. With reference to the International Criminal Court (ICC), consider the following:

1. Cross-border terror
2. Use of weapons of mass destruction
3. Genocide
4. Crimes against humanity

The ICC has jurisdiction over how many categories of crimes given above under international law?

(a) Only one

(b) Only two

(c) Only three

(d) All four

Answer: b

Explanation:

• The International Criminal Court (ICC) was established in 2002 by the Rome Statute – the founding treaty of the Court.
• It is the first permanent, treaty-based, international criminal court.
• The ICC is an independent international organisation, and is not part of the United Nations system.
• Its seat is at The Hague, a city in the Netherlands.
• The court has jurisdiction over four categories of crimes under international law:
  • • genocide, or the intent to destroy in whole or in part a national, ethnic, racial, or religious group;
    • war crimes, or grave breaches of the laws of war, which include the Geneva Conventions’ prohibitions on torture, the use of child soldiers, and attacks on civilian targets, such as hospitals or schools;
    • crimes against humanity, or violations committed as part of large-scale attacks against civilian populations, including murder, rape, imprisonment, slavery, and torture; and
    • crimes of aggression, or the use or threat of armed force by a state against the territorial integrity, sovereignty, or political independence of another state, or violations of the UN Charter.
• The ICC does not cover the crimes of cross-border terror and use of nuclear arms and weapons of mass destruction.

Therefore, option (b) is the correct answer.

Relevance: The International Criminal Court (ICC) made news in 2023 for issuing an arrest warrant for war crimes against Russian President Vladimir Putin.

Subject: Current Affairs | International Organisations

Level of Difficulty: Easy | Factual

Q2. With reference to the differences between the International Criminal Court (ICC) and the International Court of Justice (ICJ), consider the following statements:

1. While the ICJ is headquatered at Geneva, the ICC sits in The Hague.
2. While the ICC prosecutes individuals, the ICJ settles disputes between both individuals as well as states.
3. The ICC is composed of 18 judges for a non-renewable nine-year term while ICJ is composed of 18 judges for a renewable nine-year term.
4. India is not a member of ICC whereas ICJ includes India as its member.

How many of the above statements are correct?

(a) Only one

(b) Only two

(c) Only three

(d) All four

Answer: c

Explanation:

International Criminal Court (ICC) Vs International Court of Justice (ICJ)

• The ICJ and ICC are often confused with each other, and while both courts sit in The Hague, Netherlands, that is about where the similarities end. Hence, statement 1 is not correct.
• While the ICC prosecutes individuals, the ICJ settles disputes between states. Hence, statement 2 is not correct.

• • • • For example, much of ICJ’s work is devoted to settling the boundary lines (maritime or land) between States.

• The ICC is composed of 18 judges for a non-renewable nine-year term while ICJ is composed of 18 judges for a renewable nine-year term. Hence, statement 3 is correct.
• India is not a member of the ICC whereas the ICJ, being an organ of United Nations, includes India as its member. Hence, statement 4 is correct.

Hence, only two of the statements given above are correct.

Therefore, option (b) is the correct answer.

Relevance: The International Criminal Court (ICC) made news in 2023 for issuing an arrest warrant for war crimes against Russian President Vladimir Putin.

Subject: Current Affairs | International Organisations

Level of Difficulty: Moderate | Factual

Q3. With reference to the differences between the International Criminal Court (ICC) and the International Court of Justice (ICJ), consider the following statements:

1. The ICJ has been around since 1945, whereas the ICC is a much more recent institution.
2. The ICJ is not part of the UN whereas the ICC is the principal judicial organ of the UN.
3. The ICC is a criminal court, unlike the ICJ which adjudicates on civil matters.

How many of the above statements are correct?

(a) Only one

(b) Only two

(c) All three

(d) None

Answer: b

Explanation:

International Criminal Court (ICC) Vs International Court of Justice (ICJ)

• The ICJ and ICC are often confused with each other, and while both courts sit in The Hague, Netherlands, that is about where the similarities end.
• The ICJ has been around since 1945, whereas the ICC is a much more recent institution that has only been operating for about 20 years. Hence, statement 1 is correct.
• The ICC is not part of the UN whereas the ICJ is the principal judicial organ of the UN. Hence, statement 2 is not correct.
• The ICC is a criminal court, unlike the ICJ which adjudicates on civil matters. Hence, statement 3 is correct.

Hence, only two of the statements given above are correct.

Therefore, option (b) is the correct answer.

Relevance: The International Criminal Court (ICC) made news in 2023 for issuing an arrest warrant for war crimes against Russian President Vladimir Putin.

Subject: Current Affairs | International Organisations

Level of Difficulty: Moderate | Factual

Mains Answer Writing Practice:

Topic: Important International Institutions, agencies and fora – their Structure, Mandate. (GS Mains Paper 2)

Q . How do the jurisdictional scopes, objectives, and approaches to justice of the International Criminal Court (ICC) and the International Court of Justice (ICJ) differ, and what implications do these differences have on global governance and accountability? (Answer in 250 words)