The International Criminal Court (ICC): critiques and why all countries’ need to be the ICC States Parties for the fairer and peaceful world? – Biswasdip TIGELA

  1. Background

The International Criminal Court (ICC) is a remarkable achievement in this 21st century for the fairer and peaceful world. It is another distinguished organisation such as the United Nations. People are suffering from a people or group of people’s stupidities such as crimes against humanity, genocide, war crimes and crimes of aggression since a long time. During the 1st world war, the 2nd world war, Cold war, holy war, ethnic cleansing, people were suffering, and many thinkers’ dreams to establish an ordinary universal statute for protection from the mass killing of people. There was more focus after the second world war and cold war; however, ultimately The International Criminal Court has been established by the Rome Statute on 17 July 1998, and it came to effect from on 01 July 2002.[1] Some influential countries are escaping, avoiding and violating The Rome Statute, therefore the ICC is controversial at this moment, and the USA is demanding to disband the ICC, some people believe the ICC is dead. On the other hand, a few countries just realised the importance of the ICC and recently ratified the Rome Statute. Every country is working on its benefit. There are many exciting, as well as problematic things.

  1. Introduction

The ICC is the world’s only permanent international court with authority to investigate and prosecute to atrocity crimes. Atrocity crimes mean, the genocide, the crimes against humanity, and the war crimes. The ICC focuses especially on the future peace and stability over the individual, community, countries and the globe. This court has jurisdictions to prosecute over the signatory countries and the United Nation Security council’s referral case. But this ICC only pursue after the occurrence of 1 July 2002. This court does not have retroactive power before this date. The ICC is entirely separate from the United Nations, and it’s governed by the Assembly of States Parties (ASP) and 123 countries are involved in general. Among them, some countries have already withdrawn or on the process of withdrawing. There were initially 139 states in signatories and some of them still waiting to ratify. The latest joining country is Malaysia.

Before coming to the effect, the ICC has a long history. A member of Red cross founder Gustav Moynier proposed a permanent [2] court in 1872 [3] because of the Franco – Prussian War. And, second attempt to internationalise the justice system was in 1919 called treaty of Versailles where an ad hoc international court tried Kaiser and German war crimes of WW1 and after the WW2 in Nuremberg (Germany) and Tokyo’s tribunals were in practice. When the UN established, they adopted a similar concept as well and invited the International Law Commission (ILC). The ILC drafted the statute in the 1950s, and there was cold war, and that stops the further progress, ultimately ILC presented the final statute draft in 1994 at the UN general assembly and created a preparatory committee and finally on 15 June to 17 July 1998 declared the establishment of the ICC.

The ICC is operating independently as the Court such as the Supreme Court operates separately from the Legislature. It has jurisdictions to prosecute an individual for heinous crimes. The Court structure is more scrutinised; however, it is a big organisation. All total, roughly 900 staff are working for the ICC. [4] And there are six field offices[5]: Kampala (Uganda); Nairobi (Kenya), Kinshasa and Bunia (Congo); Abidjan (Côte d’Ivoire), Bangui (the Central African Republic), and the headquarters is at Hague, the Netherland.

  1. Critiques
    The ICC has many critiques. One aspect is that not all the signatory countries have ratified the Rome Statute. Also, cases filed are not in balance by region; African’s countries are arguing that there is too much focus in Africa.[6] And some believe it is costly as a white elephant. Also, the ICC does not have arresting forces such as police, so it is not a good idea to ask the same country to help and support.

The second aspect is that some countries such as the USA, China, including India and influential countries, think that the ICC is a future threat for themself, a burden for them.

There are already some issues about the Afghanistan war crime, which will directly affect the USA, because of their main involvement. As a reason, they want to abolish or disband the ICC, whereas they want to keep hunting the war freely such as Afghanistan, Iraq and Syria.

  1. Structure of the ICC

The ICC is an international judicial body which is under the Assembly of State Parties and governed by the Rome Statute. It has separate power and criteria than the United Nations; it even has completely different criteria than the International Justice of the court [7] (IJC). IJC works for countries border disputes land, and this ICC is working for the crime against Humanities, genocide, aggression and war crimes.

The ICC has four primary departments; 1. The Presidency, 2. The Judicial Divisions, 3. The Office of the Prosecutor and 4. The Register. There is ‘The Trust Fund for Victim’ as well, but it is separate from the court.

  1. The Presidency is the overall in-charge for the ICC. However, the Office of the Prosecutor and some functions run under the Statute. There is a President, and there are first and Second Vice-Presidents. An absolute majority elects all judges for three-year terms with renewable terms, and it is fulltime basis service. The Presidency carries out judicial/legal functions, administration, and external relations.


  1. The Judicial Divisions: There are 18 judges for Pre-Trial Division, The Trial Division and Appeals Division. Each division divided into chamber and conduct to the proceeding. In the Appeals chamber, there are five judges, in the Pre-Trial and Trial Chamber there are just three judges. In the Pre-Trial, there is only one judge as well. And, the presiding judge selected from the chamber question, but the Appeal chamber, judge, will decide or nominate. The Pre-Trial phase is the most vital ground, where whether a potential criminal is real or not needs to be identified. After the Pre-Trial, the Trial Chamber makes the verdict either guilt or not. If he/she is guilty than have to imposes the sentence, penalty, restitution or rehabilitation. If convicted or the Prosecutor want to Appeal than the Appeal Chamber could decide to amend, reverse or have a new trial before a different Trial Chamber. There is a proper, legal system for the verdict.


  1. The Office of the Prosecutor [8] (OTP): It is an independent body of the Court. Prosecutor conducts the investigation, collect all evidence and conduct prosecutions before to the Court. Within this OTP, there are three parts as well. First, makes the final decision, second Jurisdiction and third, the head of the investigations. The Prosecutor and Deputy Prosecutor’s terms are nine years; it is long but not renewable.


  1. The Register: It is all about the administration but not only the admin; nevertheless, it also has the three main parts: external. Judicial and Management.


This register department has a vital role in running ICC. Budget planning, human resources, security, field office support, victim and witness support and public relations. The court documents records, language translation and interpretation, counsel support, to manage detention centre, legal aid, apply for reparation. This court offers eight languages; English, French, Ahur, Arabic, Lingala, Sango, Zaghawa and Swahili. These language interpreters have to manage as well.

  1. How to start jurisdiction and procedure?

The criminal case prosecutes in the ICC in three ways. a. When the state party refer. b. When the UN Security Council Refer and, c. Proprio Motu investigations (on one’s own initiation). If the atrocity crimes are heinous, then the ICC can start the prosecution itself as well. Even if the country is not a signatory; the ICC may still gain jurisdiction if the country voluntarily accepts the ICC.[9] There is the step by step procedure).

The preliminary examination phase is all about analysis and study; weather alleged atrocities are suitable to refer to the ICC Prosecutor or not. Is there enough evidence? Was that case an atrocity crime or not? If within the authority granted, admissibility and interest of justice assessment are positive; then the Prosecutor will start the formal investigation.

In the investigative phase is carried out by the Office of the Prosecutor (OTP). The Prosecutor collects as much relevant information as it can uncover. The scene of the crime is visited for inspection. P. All evidence such as phone call records, email, radio interception, photo, video, meeting minutes, speeches, forensic material, police or military communication, interview of witness and victims, expert and specialist advice are collected. Also, the affordability of the case is analysed before the trial evidence is disclosed.

If evidence shows that a person is linked or responsible for atrocity crimes, then the ICC Prosecutor may request for Pre-Trial Chamber and will issue the arrest warrant.

If there is enough evidence, then confirm the charge, if not enough evidence or evidence not showing him/her criminal than the case is dismissed, but the Prosecutor can start another charge if required.

After the ICC verdict, if it’s seen as not reasonable, the offender gets an opportunity to do appeal as well, and it’s possible to ask for the trial session to be made open to the public. This is evidence of transparency at ICC.

The ICC can sentence short term imprisonment or up to 30 years, either life imprisonment but not capital punishment. Also, can fines property if he or she earned it through the crimes.

  1. Why all countries must have to Party of States?

The ICC is governed by The Rome Stature (Treaty), and there are 123 states including Malaysia who have signed on this Statute, and they have bound themselves to co-operate. There are more than 33 countries who are waiting for ratifying. From the Arab region, there is only one country, Jordan ratified so far. It is a sensitive subject for the leader of the country or political leaders; therefore, some countries are having difficulties within their country. The United State of America’s President Bill Clinton signed the statute on 31 Dec 2002, but later the US Congress or President Bush Administration revoked the signature. Likewise, severely devastated by the Civil war Nepal had signed the draft copy but has not signed the final text of the Rome Statute, and still waiting for many countries rectification.

  1. Who needs the ICC?

As we know that ethnic supremacy, political and regional hegemony could create unpredicted crises such as former Yugoslavia’s Bosnian genocide, Rwandan genocide Hutu vs Tutsi, Congolese war, Kenya’s political turmoil, Rohingyas crises in Myanmar. All the above scenario’s tell us. The Rome Statute is necessary for the protection to individual and community’s mass killing. As a consequence, the Rome Statute is good for all countries, and individuals, therefore, should have to make the voice to join the Rome Statute.

  1. Why did Malaysia join?

The country Malaysia, a victim of the international crime victim, joined and ratified the Rome Statute after 20 years on 5th March 2019 [10], and became the 123rd country to join ICC; however, there some countries left the Statute as well. The reason behind the joining to the ICC is to bring justice for the victim of Flight MH17 that was shot down on 14 July 2014 and killed 298 among which 43 were Malaysian citizens. It was a significant crime and Malaysia tried to file the case in the ICC, and without ratifying the Rome Statute, that is not legitimate. Therefore, Malaysia realised that.

At the same time, 88,800 Rohingyas refugees entered from Myanmar and Malaysia wants to return them to Myanmar and bring on the justice to the criminal, who killed thousands and displaced 1,41,780 in 2018.

Malaysia is one of the leading countries in Association of South-East Asian Nations (ASEAN), and Dr Mahathir Mohamad returned as the Prime Minister in his 94 years, he is the old leader in the world. He was retired in 2003 after his 22 years successful premiership; nonetheless, his political party brought him back in 2018, Dr Mohamad is always advocating cooperation with the international community, and he is known as the father of Malaysia. Many people were criticising the ICC at the time Malaysia joined, so Malaysia’s decision to join was a boost for the ICC.

  1. Why withdrawing or away from the ICC?

The USA: Hunters always want to keep a safe hunting area. Likewise, the USA is hunting around the world means, making war around the globe wherever he finds the enemy. If the USA ratified the Rome Statute, that area would be limited and fight against the terrorist could be affected. The USA big fear is- his personnel may face prosecutions at the ICC, Hague, because after the effect of the ICC in 2002. The USA has main involvement in several wars such as Afghanistan, Iraq, Syria and many minor’s involvement such as Kosovo, Venezuela, which could go to the case file in the ICC Hague. Among them, Afghanistan is already a signature country of the Rome Statute which means Afghanistan war case will file at Hague in priority. And, there are several exercises to prosecute the case; therefore, the USA is avoiding or trying to disband the ICC. President Trump said, ‘the ICC has no jurisdictions, no legitimacy, and no authority’ [11] (, 2018, Sep 17). The ICC responsibility is more threat to the USA and encourages to disband or giving a warning for not prosecution to the USA; he added that ICC:

“The ICC claims near-universal jurisdiction over the citizens of every country, violating all principles of justice, fairness, and due process. We will never surrender America’s sovereignty to an unelected, unaccountable global bureaucracy.” [12] (2018, Sep 17).

His speech is not only against the ICC; there is also blamed, such as unelected, unaccountable global bureaucracy. If the ICC disband or disable the Court threat will no more and there is no fear of Hague imprisonment to any of the USA political leaders. There are many strategical wars between powerful world countries, China, Russia (on a process to withdrawal), India is against since the establish date. They are not in the Rome Statute, and until the USA ratifies China, Russia may not join in the ICC States Parties. Otherwise, the ICC will govern all other countries and the USA only get the freedom to play everywhere without threat.

The USA senate should have to ratify the Statute, unfortunate they did not pass through the Senate. The Rome Statute is good for everyone, every country, even crucial for USA people as well because the Statute will provide protection from the mass killing of own country people or any other country people. It is a universal collective agreement between States Parties. It is not a matter of power play, legitimacy of a powerful country; it is a common good for everyone.

The ICC requested to investigate and persecute over the USA, against the war of Afghanistan in November 2017; therefore, the USA is entirely against the ICC. A National Security Advisor, Mr John Bolton said, “we will leave the ICC to die themselves.’ [13] The ICC could not give licence to kill anyone. If there was no persecution process over the USA, how would the USA respond to ICC? There might be more tolerant of it.

Russia had the Second Chechen War quite recently since 1999 to until 2009, and there were roughly 25 thousand civilians killed and over 5 thousand injured, means there were certainly war crime or atrocity crimes. It is the same as the USA; they are international players. They have power and prestige competitions within influential countries. If all nations come together, Russia might come to States Parties. Still, without ratification by the USA and China, Russia might not because if he became a State Parties, his playground could be limited and other international players might take advantages.

Russia played such a vital role over the Syria conflict, and that might cause another fear of Russia which may come as the atrocity case over to the ICC, so on Georgian War in 2008, where more than 300 killed, which may come as another war crimes case in the ICC. These are many more possibilities of cases against Russia; therefore, Russia has already declared to withdraw from the ICC States Parties.

China is another global power in the world. Chinas’ involvement is less than the USA and Russia; however, China is not doing limited of the boundary, where he can play internationally. Another reason is within China; there were some atrocities crimes: such as over the Chinese Muslim community in Xinjiang. [14] The indigenous people of Xinjiang are Uyghurs, and they follow the Islamic religion, [15] they are demanding recognition from 1931 to until now, and there are a million people in the re-education camps. In contrast, many people died because of not human activities. There are Taiwanese political uncertainty and Hong Kong turmoil threat as well. As a result, China is wary of signing on the Rome Statute.

There are many other crises and cases where the ICC might need to be involved. Myanmar is not a States Parties country, but have a problem with Rohingyas; there is no way to escape from justice. The ICC has general jurisdictions over the residents of each nation. Therefore, apart from the influential country’s interest and prestige war, every other country should sign on the Rome Statute for keeping their own people safe. If in case triggered genocide, criminal war, aggression then the Rome Statute will help stop or mitigate the crimes.

The Philippines: The Philippines is having a problem with terrorism and drugs. Current President Rodrigo Duterte has launched the campaign against drugs, and according to human rights watchdogs, there were 20,000 have been killed during the campaign. And victims of relatives tried or warned to file the prosecute in the ICC; subsequently, President Duterte announced the withdrawal from the ICC in March 2018. But, a Filipino lawyer Jude Sabio states that “His exit will not stop an ICC probe.”[16] The Rome Statute’s Article 127 gives power to the ICC has jurisdiction on the crime before or after the exit date. No one has privileges of impunity. The Philippines was a drug haven, but now it’s more controlled, and terrorism is always across the country, there are many Islands, and some Island have own demands and have been fighting against the government since a long time. One example was the Jolo Church attack in 2018. [17] In contrast, The Islamic State has killed 20 people (IS); therefore, the Philippines government have to keep fighting against terrorism and as a result, decided to withdraw from the Rome Statute or States Parties.

Burundi: The ICC is a fearful matter for every leader. Burundi had a problem in 2015, and the UN commission of inquiry, reported about murder, sexual violence and crime against humanity and the UN commission asked the ICC for investigation subsequently, Burundi withdraws from the Rome Statute with the accusation. Burundi blamed that the ICC focuses too much on Africa. Furthermore, South Africa and the Gambia was processed to withdraw as well. Burundi is the first country to withdraw from the ICC on 27 October 2017.[18] However, there are many critiques about the government decision. The Human Rights Watch’s director Param-Preet Singh said:

“Burundi’s official withdrawal from the International Criminal Court is the latest example of the government’s deplorable efforts to shield those responsible for grave human rights violations from any kind of accountability.” (, 2017).

The ICC is essential for people and country, withdrawal from the ICC means to protect the atrocities criminals; therefore, Burundi people should raise the voice against the government decision. Must not protect criminals or future criminals.

Myanmar: Myanmar’s Rohingyas crises are the latest crisis in the globe, which was about crime against humanity and mass killing. It is shameful, and the ICC investigation is already in the pre-trial phase. If African leaders keep blaming too much focus to Africa, then this is an opportunity to bring the injustice from Asia to ICC, if the ICC fails to bring justice in Myanmar then the ICC future is even more questionable.

  1. Fear of Leaders: 

The ICC is different than International Criminal Tribunal for former Yugoslavia (ICTY) [19]and International Criminal Tribunal of Rwanda (ICTR). Both ICTY and ICTR were temporary Institutions that belong to the UN. When ICTY made the verdict of imprisonment for Slobodan Praljak,[20] and he took poison on the spot. That gave a negative wave across the globe, and some countries decide to withdraw from the ICC. But that is not only the reason for withdrawal, the influence of USA’s against the movement, too much focuses on Africa, to avoid future possibility of detention, and remove the budget burden.


  1. Cases

How were prosecution cases filed, and how are on-going investigations handled? The own country’s government referred for the Democratic Republic of Congo, Central Africa of Republic, Mali and Uganda case. It’s called a self-referral. Similarly, Libya, Darfur Sudan were referred by the UN Security Council, and Cote d’Ivoire voluntarily accepted the ICC jurisdiction. The cases of Kenya and Georgia are Proprio Motu means the ICC prosecutor opened the case themselves. [21]

First-ever jailing sentence of the ICC is to the warlord Thomas Lubanga, who is from Congo.[22] He recruited children under 15 years for the brutal ethnic fight in Ituri, Congo in 2002-2003. There was a fight between Hema vs Lendu and killed 60,000 people. Mr Lubanga was in custody since 2006 and Trial was in 2009, he has to spend 14 years imprisoned in the Scheveningen, Hague. A presiding judge Adrian Fulford said, “Mr Lubanga is intelligent and well educated.” Means Mr Lubanga must know the laws, and he responsible for illegal work. It is somehow too much imprisonment to him and opened the eyes of African leaders. That fight was right after the ICC come in to force on 1 July 2002. According to jurisdictions and the scenario, Mr Lubanga imprisonment is looking legal and legitimate; however, there are some critiques from African leaders. Also, the ICC is looking at opposition leader General Bosco Ntaganda as well.

There were some summoned cases as well, among them 9 cases have been dismissed, and 13 alleged persons are still escaping from the ICC process, and there are 27 cases ongoing pre-trial, trial process.

Jean-Pierre Bemba was a Vice President of Congo, he was sentenced for 18 years in prison [23] for a crime against humanity, war crimes, raping and killing civilians but the appeals courts overturned his jail sentence. Later he was fined 300,000 euros because of the influence of his witness. Similarly, Laurent Gbagbo, Ivory Coast former President’s [24] allegations were not proved, and he is free from the ICC. He was President from 2000 to 2011 until the arrest; he was arrested because of bloody violence in the election in 2010. [25]

Ahmad al-Faqi al-Mahdi was sentenced to 9 years in prison because of war crimes, destroying religious and historic monument in Mali. It is the first record of the destruction of cultural monuments as a war crime. Likewise, many cases are on the process, including Dominic Ongwen, [26] who has 70 charges, and his case will start 10 March 2020. He is from Uganda.

There are almost 17 detainees in twelve cells at this moment, some of are in the trial phase and they have to share facilities with ICTY as well. Detention centre is at Scheveningen, coastal area of Hague. It all manages through the ICC Register. No visits are allowed including press, only Red Cross society member may speak with the prisoner and inspect the detention centre or jail.


  1. Administration

The ICC management is coming under ‘The Assembly of States Parties.’ This Assembly manages the budget, amend the law and procedure, elects’ judges and prosecutors and other activities. The budget is contributed by the States Parties, roughly according to their national wealth. It is almost the same rule with contributions to the UN. These are some of the most significant contributors; Germany, Japan, Britain and France. However, in the absence of the US contribution, the court is expensive for them. Fortunately, the European Union members France, German and the UK have an influential role in running the ICC. The States Parties gather at least once a year for budget, management and to judges selection.

Which country leftover to ratify the Rome Statute, those are not getting the opportunity to select judges and prosecutor, and they are losing the privilege to contribute to the administrative task [27] but not possible to escape from the atrocity crimes.


  1. Recommendation

The ICC is for a generally good purpose for everyone. Therefore, this must remain to operate separately from the UN, but the budget should come along from the UN. If the UN Security Council has the power to push or pause a year the prosecution and refers the case to investigate and pre-trial, then why not directly budget from the UN? It doesn’t matter how rich or powerful the country is; the ICC is not only for less powerful nations. Who knows a powerful country could face a civil war within the state one day? That war might divert to ethnic cleansing or religious conflict in that situation; the ICC role would be required. The ICC must be fair and equal for all countries, communities, religions and regions. It is almost a century effort the ICC is up and run, it is a protection for everyone; to be honest, the ICC is more important than the UN.

The ICC structure has to restructure, and the ICC self-have to have their own force such as police and the limited number of military forces as well. And the ICC self-have to right to monitor over the globe. There is no privilege and exemption for influential countries. It is a critical situation for the ICC because of some countries withdrawing; some are forcefully against the ICC for their benefit; nonetheless, unity is power; all states parties’ nations should come together to make ICC better and more effective. Even, who voted initially against the ICC, China, Yemen, Iraq, Israel, Qatar, including Libya [28] and all countries need to come as the States Parties for peace the world.



[1] ICC (no date). About the ICC, Retrieved from:

[2] Knoops, G. A. (2003) International and internationalize Criminal Courts: The New Face of International Peace and Security? Den Haag, Boom Juridische Uitgevers

[3] ICCNOW (no date). History of the ICC. Retrieved from:

[4] aba-icc (no date) Structure of the ICC. Retrieved from:

[5] ICC-ICC.INT (no date). About the ICC. Retrieved from:

[6] Griffiths, C. (2012, July 3). The International Criminal Court is hurting Africa. Retrieved from:

[7] ICJ, (No date). The International Court of Justice. Retrieved from:

[8] ICC (no date). Office of the Prosecutor. Retrieved from:

[9] Ochab, E. (2017, Jul 16). A Second Look at The International Criminal Court. Retrieved from:

[10] Jeffery, R. (2019, March 5). Malaysia joins the International Criminal Court. Retrieved from:

[11] AFP, (2018, September 25). Trump says International Criminal Court has ‘no legitimacy. Retrieved from:

[12] AFP, (2018, September 25). Trump says International Criminal Court has ‘no legitimacy. Retrieved from:

[13]  Guardian News (2018, September 11). John Bolton strongly criticises International Criminal Court . Retrieved from

[14] Furman, K. (2018, September 19). China Has Chosen Cultural Genocide in Xinjiang—For Now.

[15] Human Right watch (2019, July 17). China: Muslim-Majority States Whitewash Abuses. Retrieved:

[16] Cabato, R. (2019, March 18) Philippines leaves International Criminal Court as Duterte probe is underway. Retrieved from:

[17] BBC (2019, January 27). Jolo church attack: Many killed in Philippines. Retrieved from:

[18] AP NEWS AGENCY (2017, October 27) Burundi first to leave International Criminal Court. Retrieved from:

[19] ICTY (no date). About the ICTY. Retrieved from:

[20] Opray, M. (2017, November 29) Bosnian Croat war criminal dies after taking poison in UN courtroom. Retrieved from:

[21]  Ochab, E. (2017, July 16) A Second Look At The International Criminal Court. Retrieved from:

[22] Smith, D. (2012, July 10) Thomas Lubanga sentenced to 14 years for Congo war crimes. Retrieved from:

[23] Burke, J. (2016, Jun 21) Jean-Pierre Bemba sentenced to 18 years in prison by international criminal court. Retrieved from:

[24] AFP (2019, Sep 16) ICC prosecutors to appeal acquittal of former Ivory Coast president Laurent Gbagbo. Retrieved from:

[25] Quashie-Idun, S. (2019, January 15). Former Ivory Coast President Laurent Gbagbo freed by International Criminal Court. Retrieved from:

[26] ICC (2015, April 2) Ongwen Case. Retrieved:

[27] (no date). Questions and Answers about the ICC. Retrieved from:

[28] CNN Editorial research (2019, November 19). International Criminal Court Fast Facts. Retrieved from:

Date: 9 Dec 2019