A STUDY ON

INTERNATIONAL CRIMINAL COURT ISSUES AND CHALLENGES

Submission of Synopsis

Of

Master of Law (L.L.M.,)

Branch 3: International Law

By

Tavishala Gayatri
LLM (Final Year) - 4th Semester

Roll No: 101-222-835-006

Under the guidance of

Mr. Malkangiri Ravi Kumar, Faculty Member
University College of Law, O. U.,
Hyderabad

2022 – 2024

P. G. COLLEGE OF LAW
Osmania University
Basheer Bagh, Hyderabad
Declaration:

In accordance with the Assessment Regulations for Research

Degrees at the Osmania University, I certify that this Synopsis
for the thesis being presented for examination for the L L M
degree, at the Osmania University is solely my own work. It
has not been submitted for any other degree or professional
qualification.

Thankyou,

Pace: Hyderabad,

Date:

Signature

T. Gayatri,
Roll No: 101-222-835-006
International Law
LLM - IVth Semester (2nd year)
P. G. COLLEGE OF LAW
Osmania University
Basheer Bagh, Hyderabad
 Acknowledgment:

I, T. GAYATRI, Roll No: 101-222-835-006, Pursuing LLM

2nd Year IVth Semester, Branch - International Law, I would
like to express my special appreciation and heartfelt gratitude to
my advisor Professor Mr. Malkangiri Ravi Kumar, Professor-in-
charge, a tremendous mentor, for his support and assistance in the
Preparation of Synopsis. I would also like to thank our Principal, Professor Mr. N.
Venkateswarlu, for providing me with this wonderful opportunity to work on a project
with the topic “INTERNATIONAL CRIMINAL COURT ISSUES AND
CHALLENGES.” The completion of the project would not have been possible
without their help and insights.

I would like to express my special thanks to our mentors, Senior

Professor Dr. Abdullah Sir, Professor Dr. Y S Kiran Kumar Sir,
Professor Dr. G. Anuradha Madam for their Valuable Support, Suggestions,
time and efforts provided throughout the year. Your useful advice and
suggestions were really helpful to me during the project’s completion. In this
aspect, I am eternally grateful to you.

I would like to acknowledge that this project was completed entirely by

me and not by someone else.

Pace: Hyderabad,
Date:
(Signature)

T. Gayathri,
LLM IVth Semester (2nd year)
International Law
Roll No: 101-222-835-006
 INTERNATIONAL CRIMINAL COURT ISSUES AND
CHALLENGES

INTRODUCTION:

The most serious crimes of concern to the international community as a whole

must not go unpunished. Preamble to the Rome Statute of the International
Criminal Court on 17 July 1998. The Conference of Plenipotentiaries in Rome
was held on 16th and 17th July, 1998 to hammer out a statute for International
Criminal Court in Rome which came to be known as the Rome Statute of the
International Criminal Court. This treaty gave birth to the International Criminal
Court at Hague, Netherlands which came into force on 1 July 2002 with 66
ratifications. Currently, the Rome Statute has States Parties. This was the first
time that the States accepted the jurisdiction of a permanent international
criminal court in order to the prosecute perpetrators of the “most serious crimes
committed in their territories or by their nationals. On the contrary, in the
classical international law, the states, and not individuals had always been the
exclusive subjects. Prior to the coming of ICC, various ad hoc tribunals were
established in order to try perpetrators of the crimes of war; however, these
differed in various aspects. The concept of “individual criminal responsibility
was first accepted after the world experienced the Nazi tyranny in the Second
World War. Impunity for the Nazi perpetrators was unacceptable and a joint
action was required on part of the international community. The victorious
World War Two powers, the Allies, responded to these demands by creating
international criminal tribunals under the Nuremberg and Tokyo Charters.
These can be considered as the birth certificates of international criminal law.
Under these charters, the perpetrator and their purpose was limited with respects
to bringing to justice the perpetrators of the war. These tribunals were more of
Victor’s Justice as they only prosecuted the war criminals of the losing side i.e.

the Axis powers. Victorious powers’ course of action was therefore

controversial due to no prosecutions of the Allied war crimes. During the post
cold war period, serious violations of international humanitarian law were
committed on the territory of Yugoslavia in the early 1990s and the massacre of
Tutsi minority in Rwanda in 1994. This time it was the United Nations that
pushed for enforcement of international criminal law. Two ad hoc tribunals
were created by the UN Security Council, namely, International Criminal
Tribunal for Yugoslavia and “International Criminal Tribunal for Rwanda.
However, the operation of these two tribunals has been narrow in the time frame
as well as the territory of the offences. Besides the delays involved in
establishing ad hoc tribunals can have numerous consequences: “crucial
evidence can deteriorate or be destroyed;

perpetrators can escape or disappear; and witnesses can relocate or be

intimidated”. Investigation becomes more and more costly, and the great
expense of ad hoc tribunals has the ability to lessen the political will required to
authorize them.

The establishment of ICC as a permanent institution saw the crystallization of

international criminal law on a permanent basis. It has remedied the deficiencies
of the ad hoc tribunals and has become the first permanent, general, future-
oriented court based on the general principle of law equality before the law,
equal law for all. The International Criminal Court is the first and the only
international court capable of prosecuting humanity’s worst crimes. It has not
been created to regulate the internal reality of the states or to supersede the
capacity of these states to deal with crimes in their territories. It is therefore not
a replacement for national courts. The Rome Statute makes it the “duty of every
State to exercise its criminal jurisdiction over those responsible for international
crimes. Intervention on the part of the “International Criminal Court” can
happen only where a State is either unable or unwilling genuinely to carry out
the investigation and prosecute the perpetrators. It therefore works on the
principle of complementarity and prosecutes only when national courts are
unable or unwilling to do so. It serves as an instrument for protection of
humanitarian rights and reinforces the process of accountability for international
crimes. Since its inception, the court has acted as a judicial mechanism to
support national jurisdictions by incorporating specific international standards.

The primary aim of the International Criminal Court is to help put an end to
impunity for the perpetrators of the most serious crimes, and contribute in
preventing such crimes. The Rome Statute contains a broad codification of
crimes of genocide, crimes against humanity, war crimes and of the crime of
aggression. These are those international crimes which are of concern to the
entire international community as a whole. In the course of negotiations, the
formulation of the definitions of crimes proved less controversial as the
Nuremberg Charter and the statutes of Yugoslavia and Rwanda tribunal
provided models for the same. The main areas of contention were “court’s
jurisdiction, the role and the status of the prosecutor, and courts relationship
with UN, especially UNSC. Along with ending impunity, another primary aim
of ICC is to achieve justice for all. The “International Court of Justice” at The
Hague takes up only cases between States, not individuals. “Without an
international criminal court for dealing with individual responsibility, acts of
genocide and violations of human rights often go unpunished”. Some of the
most monstrous crimes took place during the conflicts in the twentieth century.
“In Cambodia in the 1970s, an estimated 2 million people were killed by the
Khmer Rouge. In armed conflicts in Mozambique, Liberia, El Salvador and
other countries, there has been tremendous loss of civilian life, including
horrifying numbers of unarmed women and children. Massacres of civilians
continue in Algeria and the Great Lakes region of Africa. Regrettably,
violations of international law have gone without punishment.

Ending conflicts becomes another major goal of the ICC. In situations that
involve ethnic conflict, violence begets further violence; one slaughter leads to
the next. The guarantee that at least some perpetrators of these crimes may be
brought to justice acts as a deterrent and enhances the possibility of bringing a
conflict to an end. Deterrence is another major goal of the ICC. Most offenders
have continued to believe that their crimes would not be punished. Primary
objective of the international criminal court is effective deterrence. Once it is
clear that the international community will no longer tolerate monstrous acts
without assigning responsibility and handing out appropriate punishment even
to the heads of State and commanding officers it was hoped at the time of
establishment that those who incite international crimes will no longer have
eager helpers. Yet, the working of the court in reality has faced new and critical
challenges. Though it has evolved its practice with time, it continues to face
new challenges by the day. A lot of limitations are supposedly faced from
within the Rome Statute system. The jurisdiction of ICC limits its universal
operation. The concept of complementarity ties its hands to intervene only when
states are unable or unwilling to do so. The working of the Office of The
Prosecutor has been the most controversial aspect of ICC’s functioning. The
power to select situations and open investigations in the same has drawn
criticism and tainted the image of ICC as been biased against African nations.
The inconsistent decisions by the chambers have resulted in lack of
cohesiveness to the international criminal law jurisprudence. Lack of
coordination among various organs of the ICC has internally marred its working
thus causes repetitiveness in procedures and consequential delays. The unique
feature of reparations to victims in practice has resulted in continued burden to
the already constrained budget of ICC. Adding to this is the noncooperation
from state parties as well as non party states which in turn paralyzes the court
because it has no enforcement mechanism of its own, leaving it to the mercy of
the states and international community. As it is not an agency of the United
Nations, it lacks the authority to extract cooperation through sanctions.

To make matters worse, it is politicized by the “United Nations Security

Council as this political body has the power to make referrals under “chapter
VII of the United Nations Charter.

With a list of unending challenges to its credibility and legitimacy, the court
further suffers from lack of public awareness regarding its functioning. This in
turn leads to unrealistic expectations of the victimized community from the
court, adding to its already weak public perception.

Review of Literature

An actual research study was initiated with the survey of literature. The whole
study is doctrinal or non empirical. Literature review becomes an important and
valuable exercise in research. It helps to lay down foundation, avoids repetition
and creates new dimension for the existing body of knowledge. Wide area of
literature was referred by the researcher in the nature of text books, scholarly
articles, and research papers in esteemed journals, reports published by
governmental authorities, resolutions passed by United Nations and judgements
passed by the international tribunals and ICC.

(i) Ilias Bantekas and Susan Nash’s authored book titled

“International Criminal Law” published in 2007(3rd ed) by
Routledge Cavendish Taylor & Francis Group, London and New
York: The book deals with the subject of “international criminal law
as a whole”. The authors attempt to discuss the topics of principles of
liability and participation under “international criminal law” along
with the defenses available. The “international crimes of genocide,
(ii) crimes against humanity, war crimes and other transnational crimes”
are
(iii) elaborated. Specific chapters are devoted to the “military tribunals of
Nuremberg and Tokyo”. “The International Criminal Court” is
discussed in context of its historical origin along with jurisdiction and
admissibility, general principles applicable, amendments to the “Rome
Statute” as well as the reparations to victims. The authors have also
dedicated a chapter to the internationalized domestic criminal
tribunals.
(iv) Robert Cryer, Hakan Friman, Darryl Robinson and Elizabeth
Wilmshurst’s authored book titled “An Introduction to
International Criminal Law and Procedure” published in 2010
(2nd ed) by Cambridge University Press: The authors give an
authoritative account of “international criminal law”. The book
explains in detail the crimes dealt by international courts along with
the procedure as regards the “investigation and prosecution” of the
crimes. After explaining the fundamentals and objectives of
international criminal law, the authors focus on the concept of
prosecution of international crimes by national jurisdictions. The book
then 6 moves on to explain the international prosecution scenario by
going into the history which takes us back to the “Nuremberg and
Tokyo trials” as well as the “ad hoc tribunals of Yugoslavia and
Rwanda”. The authors give an elaborate account of the International
criminal court by dealing with its structure and composition, crimes
involved, concept of complementarity, trigger mechanism at the court,
deferral of investigations and prosecutions, enforcement of ICC’s
decision along with objections to the court. Special chapters are
dedicated to victims, sentencing and penalties, state cooperation and
the future of International Criminal Court.
(v) Roger O Keefe’s authored book titled “International Criminal
Law”, published in 2015 by Oxford University Press: The author’s
book reflects the development of international criminal law. Detailed
coverage in made on topics like the administration of international
justice by international courts, the offences, defences as well as the
procedure with regards the law. A special chapter is dedicated to the
analysis of the role of national courts and municipal law in
suppressing international crimes. The author has also highlighted
aspects of law that have undergone amendments as a consequence of
the “Rome Statute” like the defences of duress and superior orders. On
the whole the book makes an excellent analysis of the substantive law
and principles of the ICL.

(vi) The Cambridge Companion to International Criminal Law”

edited by William A. Schabas, published by Cambridge University
Press in 2015: This book is a comprehensive introduction to
international criminal law. Contribution to the book is made by experts
including international lawyers, judges, prosecutors, criminologists as
well as historians. The book is organized around several themes
including institutions, crimes and trials. Several tribunals are explored
in depth. Chapters that were of great value to this thesis include
chapter 7 which dealt with the “International Criminal Court” written
by Leila Sadat, chapter 17 which dealt with the “ICC of the Future”
written by Hans Peter Kaul and chapter 18 which dealt with
“Challenges to International Criminal Justice and International
Criminal Law” by M. Cherif Bassiouni.

(vii) “The Changing Face of Conflict and the Efficacy of International

Humanitarian Law” edited by Helen Durham and Timothy L.H.
McCormack, published in the International Humanitarian Law
 Series Vol 2 by Martinus 7 Nijhoff Publishers in 1999: This book is
a collection of essays which describe the “prospects and challenges to
the international humanitarian law” in the 21st century. The volume
begins by giving a critical analysis of the “Protocols of 1977 to the
Geneva Conventions”.

(viii) The latter chapters focus on the “implementation of international

humanitarian law”. The chapters that contributed to this thesis include
chapter 9 which dealt with “International Criminal Law and the Ad
Hoc Tribunals” written by Helen Durham and chapter 10 which dealt
with “Enforcement of International Humanitarian Law” by Geoffrey J.
Skillen.

(ix) “The Changing Face of Conflict and the Efficacy of International

Humanitarian Law” edited by Helen Durham and Timothy L.H.
McCormack, published in the International Humanitarian Law
Series Vol 2 by Martinus 7 Nijhoff Publishers in 1999: This book is
a collection of essays which describe the “prospects and challenges to
the international humanitarian law” in the 21st century. The volume
begins by giving a critical analysis of the “Protocols of 1977 to the
Geneva Conventions”. The latter chapters focus on the
“implementation of international humanitarian law”. The chapters that
contributed to this thesis include chapter 9 which dealt with
“International Criminal Law and the Ad Hoc Tribunals” written by
Helen Durham and chapter 10 which dealt with “Enforcement of
International Humanitarian Law” by Geoffrey J. Skillen.

(x) “International Criminal Law-Critical Concepts in Law” edited by

Antonio Cassese, Florian JeBberger, Robert Cryer and Urmila De,
Published by Routledge Taylor and Francis Group in 2015: This
book is from Routledge’s Major Works series and forms an convincing
 “reference work” that identifies the evolution of international criminal
law. The editors have done full justice to the key concepts of the field.
Chosen by “Antonio Cassese, the first President of the Yugoslavia
Tribunal and the author of some of the most influential books on the
subject, and a small team of noted scholars”, this collection of four
volumes gathers the “best scholarship from the time of Nuremberg and
Tokyo to the working of ICC in 2015”. An ambitious aim has been
achieved by the volume editors. They bring together pioneering
material which is sourced from a wide range of “academic journals,
edited collections, textbooks, and monographs,” many of which are
difficult to obtain. The editors also enlighten upon the broader and
primary issues related to “impunity, guilt, restitution, and social
reconciliation”.

Significance of the Study

In the absence of the rule of law, impunity rules. By punishing violations of

“international legal norms” and by promoting an order where these rules are
adhered to, the ICC and the entire system under which it operates plays an
important role in advancing the rule of law. The study on this subject specially
becomes relevant because individuals are prosecuted for the heinous
international crimes thereby impunity is ended and individual criminal
responsibility is established. ICC is a global court for the powerless. It can
contribute to preventing crimes. It stands for equality of all before the law. It is
a victim centered court, protecting the victimized communities and advancing
gender justice. It serves as a court of last resort and a path to global peace. In a
world where human rights violations are rampant with national jurisdictions not
keen to bring the perpetrators to justice, the effective functioning of a
permanent international court that upholds individual criminal responsibility
and ends impunity is a must. Bringing awareness regarding the functioning and
procedures of the court along with the challenges it faces, educates the public
and help in better understanding of their rights and how to approach them when
violated. It also helps in understanding the need to strengthen national
procedures to try international crimes as this directly helps the cause of ICC.
Effective prosecution by national jurisdictions means lesser burden for the ICC
to open investigations and prosecutions thereby enhancing its work efficiency.

Objectives of the Study

1. To analyze the need for the “International Criminal Court”.

2. To critically examine the role played by various organs of the court including
the “Registry, Office of the Prosecutor, Presidency and the Chambers”.

3. To analyze the jurisdictional issues faced by International Criminal Court.

4. To bring out the new challenges facing the court in today’s world.

5. To analyze the response of “United Nations Security Council, state parties

and non party states” towards the working of the court.

Scope of the Study

The relationship between international criminal law and state sovereignty has
never been a smooth affair. On the one hand, sovereignty is considered as an
obstacle for enforcing ICL and on the other hand, enforcement of ICL is
considered as a spurious justification for intervention into the domestic affairs
of sovereign states. Though the concept of state sovereignty continues to play a
significant role in international legal order, preserving human values and
punishing perpetrators of heinous crimes is a prerequisite for the legitimacy of
any legal order. Thus, there is a need for finding a middle ground to harmonise
the doctrine of sovereignty with the international criminal law system. In this
regard the study seeks to analyse the structural as well as the jurisdictional
principles of international criminal law to harmonise it with the concept of
sovereignty. The ever expanding nature of criminal activities at the global level
is no more restricted to conventional crimes. It has come to include torture,
terrorism, enforced disappearance, and transnationally organised crimes.
Similarly natural persons are not the exclusive perpetrators of serious
international crimes but legal persons as well. This changing nature of criminal
activities requires civil liability as a remedy in addition to criminal
responsibility. Further, the new found concept of responsibility to protect
imposes three-phase responsibility on states and international community
towards individuals, such as: prevention of serious crimes, protection during
conflict, and prosecution of perpetrators. Such developments compel to revisit
the structural principles and jurisdictional aspects of international criminal law
in the context of sovereignty doctrine to secure justice to the victims.

Hypothesis

1. The International Criminal Court is the first and the only permanent treaty
based international court established to prosecute individuals accused of
committing the most serious crimes of concern to the international community.
It is neither like the “Nuremberg” and “Tokyo Tribunals” which were more of
Victors’ justice after the Second World War, nor like the International Tribunals
for Yugoslavia and Rwanda which were established by Security Council and
were limited in jurisdiction with regards to time frame and territory.

2. The concept of complementarily which allows the states to retain the primary
responsibility for trying the perpetrators is a bane rather than a boon for ICC, as
it allows unwilling states to let go off the individuals on the pretext of fallacious
prosecution in their domestic domains.

3. The Court faces internal challenges in the form of organ related issues. The
case and situation selection strategy of the Office of the Prosecutor has the
capability to build or destroy prospective cases. Lack of clarity in the roles of
pre trial and trial chambers results in repeated processes which amount to delays
in trials. Lack of coherence in the jurisprudence by the chambers tarnishes the
image of the court and poses as a major problem. Also the process of reparation
which is a unique victim centric feature of the court creates more problems than
benefits to the victims.

4. Apart from the internal challenges, the court faces external constraints. The
working of the court suffers tremendously at the hands of self interested states
as the court relies on state cooperation for arrest, enforcement of warrants and
surrender of suspects as well as for detention of convicts. ICC also relies for
funding on state parties, governments, international organisations, individuals
and other entities, which raises a question regarding the impartiality and
independence of the Court.

5. Instrumentalization of the court by permanent members of Security Council

is also one of the key factors for its limited success in prosecutions. It is
reflected in the fact that there is lack of participation by three permanent
members of the Security Council i.e. USA, China and Russia

6. Despite the challenges, the ICC in a very short span has had successful
prosecutions and outreach programs which have proved fruitful in supporting
victims and witnesses.

Research Methodology

The researcher will adopt a very precise research methodology based on study
of legal literature available on this subject at national and international level.
The study will follow doctrinal research method in compilation, interpretation
and systematization of the primary and secondary source material. Review and
analysis literature available in India and in other countries will be examined.
Several online database and internet search engines will be surfed to make the
study effective and realistic. The study will be doctrinal nature. The findings
and conclusion will be based on qualitative analysis. It provides a theory to
explain particular legal doctrine and may be explanatory; it attempts to explain
the law as it is.
Doctrinal research of course, involves analysis of case law, arranging, ordering
and 10 systematising legal propositions, and study of legal institutions, but it
does more - it creates law and its major tool (but not the only tool) to do so is
through legal reasoning or rational deduction. In the present study, Books, Law
Journals, Case Law, Proceeding of Conferences, Doctoral thesis and
Dissertations, Reports of Committees and Commissions, Five Year Plans,
Census of India, National Sample Survey Organization, Dictionaries, Statutes,
Magazines, Comprehensive Manual and Newspapers are extensively used. For
collecting material, surfing on internet has also been done. As law is intended
for society, it operates in society and therefore, knowledge of social policy,
facts and social value is essential for the researcher. In present study, researcher
gets an opportunity to test his ideas by sociological data; it will certainly add
value to his research.

Chapterization

Chapter One deals with the “Introduction to the International Criminal

Court”. This chapter highlights the “concept of international criminal
court in the international criminal law”. It tries to introduce the concepts of
individual criminal responsibility and the rule of complementarily on which the
court functions. It also tries to gist out the challenges that the court faces. The
sole purpose of the chapter is to provide a snapshot of the thesis. This chapter
contains the review of the literature studied and researched for the thesis. It lays
down the objectives of the study along with the research questions that will be
answered in the thesis. Hypothesis of the research followed by the research
methodology and significance of the study along with the chapterization plan
also form part of the same.
Chapter Two rolls out the “Historical Evolution of International Criminal
Court”. It provides an outline of the development of the “International Criminal
Court” and traces its path to the 1998 Diplomatic Conference. While dealing
with the establishment of the “International Criminal Court”, this chapter goes
back in history to cover various eras before and after the world wars. It
elaborates the establishment of the “Nuremberg and Tokyo Tribunals” which
became the first of their kind to introduce “individual criminal responsibility” in
international law. The chapter goes on to discuss the establishment of “ICTY
and ICTR” to end the “gross violations of international humanitarian law”. It
briefly analyses their shortcomings and in doing so it answers the “need for an
international criminal court”.

Chapter Three elaborates the “Structure of the International Criminal

Court”. It focuses on the four major organs of ICC i.e. “the Presidency, the
Chambers, the Office of the Prosecutor and the Registry”. It brings out the roles
played by these organs as well as the functions assigned to them as per the
Rome Statute. A critical analysis and appraisal is made of the provisions related
to the organizational structure of the ICC under the Rome Statute and how it
fairs better as compared to its predecessor international tribunals. Criticism
related to the work of the organs

Chapter Four goes on to elaborate about the “Jurisdiction of the

International Criminal Court”. It discusses the various types of jurisdiction
that the ICC possesses, namely, “temporal jurisdiction, personal jurisdiction,
territorial jurisdiction 20 and subject matter jurisdiction”. It also answers one of
the main research question that is whether the rejection of universal jurisdiction
by ICC serves as an advantage or disadvantage for the functioning of the court.
It goes on to enumerate the limitations on the jurisdiction of ICC along with its
enforcement mechanism.

Chapter Five draws constructive attention to the “Internal Challenges of

the International Criminal Court with Special Focus on the Office of the
Prosecutor”. This involves understanding the importance of prioritization
between cases and situations and the different criteria used for such
prioritization. The gravity threshold required for case selection and situation
selection is discussed in detail along with court practice. Along with this, the
issues faced by the court due to the investigative and prosecutorial strategies of
the two Prosecutors with the improvement made so far are analysed here. Other
challenges related to the office of the Prosecutor like internal quality control
mechanism, hibernation and closure of situations has also been discussed.+

Chapter Six continues with the “Internal Challenges of the International

Criminal Court” with elaboration on “Issues Faced by the Chambers” as well
as “Victim Participation and Reparation”. This chapter goes on to find the
reasons for the lengthy trials at the court. It deals with various issues pertaining
to the Pre Trial and Trial chambers like disclosure of evidence, confirmation of
charges, issues with testimony, and lack of coherence in jurisprudence. The
chapter then moves on to discuss participation and reparation system under the
Rome statute as this forms another major issue related to the needs of the
victims. It gives clarity to the concept of Victim under ICC along with the
various parameters governing the system participation. It also goes on to
elaborate the causes for delays in the reparation process of the court

Chapter Seven brings out the “External Challenges of the International

Criminal Court” in the form of its “Critical Relationships”. The issue of
state cooperation is discussed with special reference to the “Assembly of State
Parties” of the Court. The next issue presented is that of politicization of the
court at the hands of the “United Nations Security Council”. And the last issue
dealt with is that of relation of the ICC with the Non Party States.

Chapter Eight draws out the Conclusion and Recommendations for the
efficient working of the court.