International Criminal Law in the International Court of Justice

This article explores the sources of international criminal law, including treaty law, customary international law, general principles of law, judicial decisions, and learned writings. It discusses the complexities and effectiveness of the International Court of Justice in enforcing these laws. The article also examines the opinions of scholars on the complexity and efficacy of international criminal law.

International Criminal Law in the International Court of Justice

Table of Contents
Introduction................................................................................................................................3
Main Body..................................................................................................................................3
Conclusion................................................................................................................................14
Reference..................................................................................................................................15

Introduction
The International Criminal Court is attributed to be the last resort for the prosecution, of the
various serious international crimes, which also includes the genocides, the various war
crimes, and the various crimes against humanities amongst others (Sadat and Carden, 2017).
The International Court of Justice was undertaken and established by the Rome Statute in the
year 1998, in the month of July. The court has begun the work on the 2003, after following
the truce of the various ad hoc tribunals in the year 1990s. This dealt with the crimes those
were committed by the former Yugoslavia and Rwanda. Following the various parameters
mentioned under the Rome Statute, the international court of justice has made significant
changes in bringing the global attention to the accountability. As per the analysis of Scharf,
(2017) it has caused the major setbacks with the various international crimes those continue
to proliferate, the obligation which have proven to be of utmost importance and the daunting
tasks those were associated with it and those which were further envisioned by the people
who established the court of law.
Main Body
Sources of Law
The international criminal court is also known as the intergovernmental organisation which
has its tribunal at The Hague at Netherlands. The ICC is entitled to allow the prosecution of
the various individuals in matters of crimes against the humanities, aggression, and many
other factors. It was essentially formulated to allow the various national judiciary systems
take complementary support from it matters in matters of justice that they could not conduct
(Bassiouni and Schabas, 2016 ). They also conduct their respective duties when the United
Nations Security Council refer certain people to the court.
When the consideration of the sources of the international law is considered the organ those
are used for the application of the sources of the laws and the norms those are undertaken
from the body of the law shall also be considered. The prosecutions shall be undertaken by
the international criminal tribunals before the various national courts or by the hybrid
internationalised tribunals (Thirlway, 2019). The international tribunals shall have the liberty
to use the various international laws but the national tribunal does not.

There are mainly five sources of the International Criminal Law, which is a set of the public
international law and they primarily have a very dynamic relationship with each other. The
sources have been formulated using the international laws which have been contained in the
Statute of the International Court of Justice. The sources correlate to the various international
conventions which establish the rules for the various states. The customs of the international
points which would give evidence to the practices of the laws, the principles those were
recognised by the various civilised nations and the decisions of the judicial mandate those
were passed by the nations (Besson and d'Aspremont, 2017). The sources those are included
in the International Criminal Law are the:
 Treaty Law
 Customary International Law (Custom, Customary Law)
 General Principles of Law
 Judicial Decisions
 Learned Writings
Treaty Law
The various treaties are in the form of the agreements those are the means of the creation of
the rights and various obligations which exist between the states. The treaties might be
created to protect the various individuals. As per the study of Cameron (2017), the
International Criminal Laws have various sources, which can include the breach of the
provisions of the 1949 conventions of the Genocide Conventions. The other Conventions are
the: Rome Statute of the International Criminal Court Convention for the Protection of the Human Rights and the Fundamental Freedom
(this is essentially the European Convention of the Human Rights) Pact on Security, Stability and Development of the Great Lakes Region Convention against the Torture and other cruel, Inhuman or Degrading Treatment or
Punishment 1977 Additional Protocol II to the Geneva Convention (AP II)
The various jurisdictions which have been ratified due to the state of the relevancy for the
direct sources of the law, which would serve the purpose of the interpretation of the laws
those, are applicable. The Statute of the International Court of Treaty, which have been

inherently adopted that the position, which would give the Additional Protocol II to the
conventions, reflection of the customary international law at the time (Klabbers, 2017).
The ICTY has been able to formulate the rules of treaties could be the various sources of the
international laws, that would consider the various treaties those were unquestionable that
were bound by the parties due to the conflict due to the offense that was alleged. The
conflicts those exist are from the peremptory norms of the international law.
The various treaties are deeply associated with the application those are in retrospect of the
crimes and the penalties those may raise due to the various treaties that is relied upon the
various ways of prosecution of the crimes internationally. The treaties those are associated
with the International Court of Justice are not only associated with the criminalisation and
the subsequent punishments but also other stems those are customary to the international law.
According to the Article 31 under the Vienna Convention, the treaties are bound to be
interpreted using the ordinary purpose (Barceló, 2016).
The Customary International Law
The Customs are the ones those consist of the state practices and the opinio juris. The
practice those were done for the state shall be uniform, consistent and relevant and the Opinio
Juris should be identified to be accepted amongst the various states by the practices of the
laws those were prevalent. The customs are behind the binding of the states and the “local”
customs and would ultimately help the two states too. The various international criminal laws
also are bound by the treaty law (Matheson, 2017). The opinio juris consists of matters like
the correspondence of diplomatic characteristics, the policy statements and the various press
releases by various governments, the various decisions and practices and the military manuals
amongst others. It also includes the national legislation, the authoritative commentaries of the
various treaties, judicial decisions on the state and the global level, contents of the treaties
amongst others. As argued by Bradley (2019) treaties are the most effective measure that has
been taken by the ICJ to undertake the formulation of the customs. The treaties sometimes
would further codify the provisions for the restriction of the customs and the other
corresponding factors those are associated with it. The Rome Statute would characterise this
factor to a certain degree and this would further emphasise on the importance of the
restrictive characteristics of the customs. On conducting the detailed analysis of the
customary international law, the prohibition of the civilian population as well as the
individual population is undertaken, on the basis of which the learned evaluative writings can

be utilised to undertake the establishment of the customs and the careful consideration can be
given to the formation of the customary laws.
General Principles of Law
When the aforementioned sources were not of use by the ICTY, they have often used the
General Principles of the Law for the formulation of the law. These were utilised to devise
the common approach of the formulation of the common legal system after the thorough
utilisation of a number of factors. A considerable number of nations and their civil and
common laws were reviewed before taking the necessary measures. The acceptance of the
various fundamental rules of the justicesas per the study of Jain in the year 2016, the various
local civil and criminal laws were used as a declaration of the international laws and this was
eventually fully justified.
Judicial Decisions and the Learned Writings
Even though not bound legally, the International Court of Justice often take the matters of
jurisprudence that they had undertaken previously under close consideration and use this law
for the making of the new laws in the future. The various trial chambers are not under the
obligatory rule of following the rules of them but are under the purposeful right of
undertaking the decisions of the appeals chambers. The chamber of the appeal is under the
obligatory right to undertake the departure of the decisions those were made prior to the tasks
those were undertaken (Zimmerman et al, 2019). The judicial decisions of the national courts,
international courts, the International Court of Justice, the International Military Tribunal
also known as the Nuremberg tribunal, and European Court of Human Rights, are all taken
into consideration when the matter of the formulation of the laws are concerned. Other
matters those have been considered are the publications those were undertaken by the various
international authorities, the research writings of the various pertinent bodies like the
International Law Commission, the International Committee of the Red Cross.
Opinions of the Scholars in matters of the International Criminal Law
Most of the scholars those who have studied the international criminal law have been giving
the mixed reactions, where few have stated that the laws are rather very complex and few
others have stated that the laws are pretty efficient in solving the various crimes. As per the
evaluation those have been conducted by the scholars the international criminal laws
formulated by the International Court of Justice, have not only helped in the conduction of

the trials but also the added goals (De Silva, 2017). One of the most successful cases those
have been considered is the one for the International Criminal Tribunal at Yugoslavia, due to
which a total of about $2.7 billion was spent. Thus the scholars, Ford (2015) have argued that
it is not only costly, but also rather inefficient when the total costs those are incurred are
concerned. Professor Whiting has argued upon this topic in his journal, stating that the entire
process has not only been slow but also has been rather very costly, thus diminishing the
purpose of the international laws. As stated by the Assistant Secretary General of Legal
Affairs at the UNO, the international criminal justice is rather causing a sense of pervasive
dissatisfaction amongst the various member nations and this would eventually lead to
immense amount of donor fatigues. He further stated that the approach is both financially and
politically non-viable.
A considerable portion of the critics and the scholars have argued that even though the
international criminal law is rather slow and expensive , when compared with the domestic
trial of a similar law of the same amount of complexity, the laws which are passed by the
international criminal law is more stringent and are more effectively implemented. Apart
from being used for the purpose of retribution, the international criminal court have many
different kinds of purposes, like the reconciliation of the two parties after a conflict, putting
an end to the impunity, setting of the major historical record, the ending of the conflict
between the various parties, amongst others. The scholars have been rather sceptical about
the efficacy of the International Criminal Law and if they are made solely for the reason those
are political (Boister, 2018). However the International Criminal Court have suggested the
undertaking of definite measures of the reduction of the complexity and based on the
complexity has suggested the amalgamation of separate funds for the companies. Scholars
have further suggested the cost benefit analysis of the various factors those are associated
with the criminal law. A scholar, named Professor Sahny has suggested that the courts should
be analysed in the basis of their ability to assess the goals and the various resources
distributed on the basis of these goals.
Critics adjudged that the most fundamental reason that should be undertaken for the purpose
of the evaluation of the complexity of the international court of law is the term complexity
itself. They believed that the term complexity can be defined into two parts, where one of
them dealt with the comprehension of the various parts those were tied together and the other
dealt with the comprehension of something which is rather complex inherently. Thus, stating
that the complexity would arise when the various aspects interconnect and do not necessarily

make any sense. The legal scholars have stated that there are essentially three major types of
complexities those are: legal complexity, factual complexity and participant complexity.
The legal complexity deals with the contents of the law and the proper interpretation of it.
The law might be heavily regulated, have many sources having the complexity in ascertaining
in which sources would apply, the extreme technicality, and eventually the uncertainty that is
associated with it.
The factual complexity deals with the complexity those are associated with the facts which
are necessary for reaching the particular legal decisions. It is related to the comprehension of
the legal system and the application of the various laws on the events and information which
would eventually lead to the formation of a particular decision. The complexity may arise
from the mere quantity, technicality, difficulty or just the indeterminacy of the facts and
information.
The participant complexity is the one that deals with the effect of the various legal
participants, and the decision making process and the holistic complexity is associated with
it. Many scholars have stated that the skilled prosecutors decrease the level of complexity
whereas the skilled defence counsels increase the complexity (Wheatley, 2016). The
cognitive understanding that is prevailing in the human beings inherently would further limit
the understanding of the legal decision making capability of the people.
Thus the scholars have stated that the International Criminal Law is very complex since, first
of all, the international law are marked by the interaction of the various charges as a whole, in
the form of motivations, personalities, participants amongst others. Secondly the various parts
those interacts with the trials are rather very difficult to be evaluated. The courts have the
extreme difficulties of analysing if the laws are evaluated properly on the basis of the trials
and the cost effectiveness of it.
However, a considerable portion of the scholars have argued about the effectiveness of the
international court of justice to a certain extent. As per the scholar it is the mean of
comparing the relative efficiency of the various courts, and the principle work that is
associated with the international tribunals (Carlarne et al, 2016). For the practices of the ICC
to be more efficient the judges have undertaken the responsibility of undertaking fair use of
witness statement rather than the use of the live witness statements which have decreased the

time that is required for the purpose of litigation and have also reduced the amount of money
that is associated with the promotion of the various different kinds of expediency.
Eminent scholars have stated that in order to keep the entire system just and fair, the
procedural time has to be undertaken which can reduce the time and the cost efficiency that is
associated with it. There should not be much time wasted on the in-between the trial times
and the definite procedural changes should be undertaken to cater to the diminishing of the
various different types of complexities those are associated with it.
The International Criminal Court
It is clear from the above discussion that International Criminal Court plays an important role
in maintaining law and order at global level. This intergovernmental permanent institution
was established in 2002 with the aim of preventing genocide, crimes against the society and
humanity and war crimes. In this context the role of the Rome Statue should be discussed,
according to Vienna Convention, no international treaty can be imposed on any party without
its consent (Politi, 2017). However in case of ICC non-party states are also expected to
cooperate with this organisation in order to effectively deal with critical international issues.
Such cooperation was envisioned and proposed by the Rome Statue; according to this the
ICC should be a voluntary institution. Therefore non-member countries are also subject to
this statue and they are bound to cooperate with ICC and other countries in cases of great
importance. The Decisions of International Criminal Court are final which need to be abided
by all the member states of the United Nations (Sadat, and Carden, 2017). ICC is managed by
an assembly consisting of several states parties. This assembly is responsible for electing
officers for this organisation, determining its budget, adopting amendments and so on. This
organisation came into existence as a peace project and its 4 basic objectives were to provide
the worst perpetrators with punishment, to act as the “court of last resort”, to penalise the
criminals associated with genocides and war crimes and to assist different national judiciaries
in investigating and managing criminal cases of great importance. Though the ICC allows the
national governments to investigate their cases on their own, in many cases it has been
observed that national governments fail to deal with mass atrocity and to enforce law in an
effective manner. In such cases ICC provides necessary aids to the national governments. The
ICC is supposed to perform its duty through conversation and negotiation with the member
states (125), regional bodies and NGOs. Therefore it can be stated that theoretically the ICC
has become an integral part of the International Justice System (O'Toole, 2017). However the

question is, whether ICC is successful in achieving its objectives or strengthening the
international justice system or not.
It has been argued by scholars that the shortcomings of international criminal court are major
barrier to its success; therefore the shortcomings of this institution should be identified and
evaluated broadly. The ICC is an independent body, which means it is not a part of the
United Nations. However it shares cooperative relationships with the major international
organisations. The most important matter in this context is the existence of various other
international judiciary bodies such as “the International Criminal Tribunal” for countries like
Rwanda and Yugoslavia. Therefore since the day of its establishment ICC has been
struggling to secure its position at global level. It also needs to be mentioned that no effective
mechanism is there that can be applied to enforce criminal law at international level. ICC is
allowed to investigate cases on its own, the member countries and the Security Council can
also suggest it to review various important cases. However it needs to be remembered that
ICC is not capable of enforcing law on its own, it is bound to depend on the political wills
and strategies of various national governments to perform its responsibilities or to arrest
criminals. Therefore it is easily assumable that ICC has failed to carry out its responsibilities
on many occasions (Jo, and Simmons, 2016.).
Assessing the Performance of ICC
According to a report published by Forbes in 2017 the world need to reassess the importance
and the ability of ICC. ICC was founded to reduce the excessive pressure of investigating
numerous criminal cases on the Security Council. However people criticise this organisation
for being extremely expensive, inefficient and ineffective. According to that report this
organisation had secured four convictions only in the past 15 years after its establishment,
those are Lubanga, Katnga, Al Mahdi and Bemba. ICC finds it extremely difficult to build
cases against any country and to determine whether ICC can act within their territories or not
(Forbes.com, 2019). This organisation mostly deals with war crimes, crimes against humanity
and genocides, all of these cases require huge volume of evidences which are extremely
difficult for ICC to collect. Many people also say that ICC always remains engaged with
issues related to African countries. In 2017 ten countries were under ICC’s investigation and
9 out of them were African nations. However it should also be mentioned that in most of the
cases ICC didn’t try to get involved in those matters in a self motivated manner, the national
governments of several countries like Mali, Uganda, and CAR had requested ICC to

intervene in their domestic matters. The Security Council had also asked ICC to investigate
situations in Darfur, Libya and Sudan. According to the same report, the primary limitation of
ICC lies in the fact that all countries are sovereign in nature, therefore they are not bound to
allow ICC within their territory. Therefore it is difficult for ICC to initiate the investigation
process of the ‘self-referral’ cases (Werle, and Vormbaum, 2017). Therefore questions
regarding ICC’s effectiveness will always remain there.
The United Nations along with many African countries have criticised ICC for being biased.
According to many African nations ICC gets easily affected by regional politics. According
to BBC news ICC has failed to achieve its objectives in many of its most important cases.
According the national governments of many African countries, ICC deliberately ignores the
incidents occurring in countries other than the African nations (Boehme, 2016). this
organisation has investigated 25 cases over the past two decades (approximately) and 12 out
of those 25 cases were associated with African nations. Burundi withdrawn itself from ICC
and stated that this organisation is nothing but a political weapon of the western countries
which they use to enslave others. Other nations like Gambia and South Africa also threatened
UN to quit this organisation due to its biasness. However it is a fact that many countries still
not have joined ICC, therefore they are not bound to recognise the jurisdiction of this
organisation (Leonard, 2017). Thus it can be stated that ICC is not allowed to investigate
many serious cases that are taking place within countries other than its member nations.
It cannot be denied that there are valid reasons behind these criticisms, countries like Russia,
US and China have not joined ICC yet, however these members are the veto wielding
members and they are entitled to decide whether ICC can investigate certain cases or not,
such discrimination can be difficult for other countries to accept. Many people argue that the
basic aim of ICC was to provide justice to the criminals associated with war crimes, crimes
against humanity or genocide. However several strong countries known for using violence
and crime against the society have successfully escaped punishments (Una.org.uk, 2019).
According to many scholars mostly the weak nations have surrendered themselves to this
organisation, not the strong ones. ICC has failed to investigate equally shocking conditions in
other countries such as Syria, Myanmar, Yemen and Cameroon. However it should also be
stated that ICC is experiencing increasing acceptance these days and many countries are
showing their will to accept its guardianship (Grant, and Hamilton, 2016).

ICC is the highest court in the World, it has been mentioned earlier that ICC aims to serve the
world as the last resort. According to the Guardian this organisation was established to punish
world’s most dangerous criminals. However, the decision of withdrawal by many African
countries raises questions regarding its ability to perform its duties. According to a report
published by the guardian Museveni, president of Uganda himself asked ICC to investigate
incidents associated with a rebel group called LRA (Simbeye, 2017). This organisation was
associated with severe crimes such as war, abduction, sexual enslavement and so on. In 2016
ICC managed to bring one of the members of this organisation to trial, at that point of time
Museveni claimed that ICC is of no use, and started criticising western arrogance (Brown,
2017). He stated that ICC should not intervene in issue associated with African Continent.
ICC has no answer to this mistrust of the African people as ICC is heavily dependent on
western countries in many ways. The core principle of ICC is harmony and shared values. In
order to maintain peace at the international realm, all countries have to unite. If the western
countries stop providing cooperation, funding and political assistance it would become
extremely difficult for other courtiers to prosper. Therefore it is not possible for ICC to ignore
the will of the western nations (Hatcher-Moore, 2019). This organisation has many other
flaws, it doesn’t have a police force to enforce law on its own, it completely depends on the
assistance of the member states. Therefore it can’t be expected from this organisation to be
neutral under all circumstances. Many people also say that this organisation is a financial
burden on the world, current annual budget of ICC is around €145m, however it has
convicted only 4 people till now. Many critics say that the main problem of international law
is its idealistic nature (Bekou, 2017). Domestic laws are bound to be practical as it is
responsible for maintaining law and order within a country in an uninterrupted manner,
international law on the other hand tends to set unrealistic goals and historical records.
According to McDermott Rees, the ICC aims to complete several missions such as ensuring
security and peace all across the world and establishing rule of law, however ultimately it
conducts criminal trials only. This unrealistic approach is the main reason behind its failure.
In the recent years the African countries are planning to set an alternative court of justice
which will work within African territory only. This organisation would be known as “the
African Court of Justice and Human Rights”. Such initiatives prove that African countries are
denying trusting ICC. Therefore it can be stated that ACJHR a serious threat to ICC’s
existence (Magnarella, 2018).

Case Studies
Along with the allegation regarding being biased, it is also necessary to assess whether ICC
has been performing its duties successfully over the past decades or not. So far ICC has
investigated many cases, most famous among them are, cases of Mohammad Ali, Abdallah
Banda, Muhammad Gddafi, Charles Ble Goude and so on. ICC has failed to performed its
duty efficiently on many occasions. For example, in 2106 this organisation sentenced Jean
Pierre Bemba for 18 years. This individual was the vice president of Congo, popularly known
as a war lord. He along with his rebel group committed several atrocities between 2002 and
2003. However ICC acquitted Bemba in 2018 as the appeal judges thought that he was not
able to prevent his troops from committing crimes against humanity. Therefore there was no
reason to convict him for years. After returning home he decided to take part in presidential
election, however he couldn’t do that as several cases of bribery and corruption were hanging
upon his head. Therefore it can be stated that ICC has failed to deal with war crimes in an
efficient manner. It has also been observed that ICC dropped severe charges against criminals
due to lack of evidence and disappearance of witnesses. In 2016 ICC acquitted Uhuru
Kenyatta, the president of Kenya who was accused for conducting a deadly post-election
massacre during 2007-2008 in which near about 600000 people got displaced and 1300
people lost their lives. Several allegations were hanging upon his head, for example murder,
deportation, rape and so on. This individual is also accused for manipulating witnesses and
presenting false testimony to the court. ICC failed to punish such a vicious criminal due to
lack of witness and evidence (Justiceinfo.net, 2019). ICC also issued a warrant against Omar
al Basir the president of Sudan as he was associated with brutal crime against humanity and
war crimes. The incident took place at Darfur in 2003. According to the UN this man was
responsible for the deaths of near about 300000 people. Despite being accused for
committing such serious crimes this man participated in many regional summits and he was
allowed to go abroad whenever he wished. Member countries such as Jordan and South
Africa refused arrest him as he was the head of a nation. Therefore it can be stated that not
having a dedicated police force is one of the major weaknesses of this organisation (Funk,
2015). in 2011 ICC was trying to mitigate a conflict Libya; it was aiming to prosecute
Colonel Gaddafi, a Libyan leader. However ICC failed to deal with this matter as Gaddafi got
murdered by some domestic revolutionaries in 2011. Such incidents show that many
countries have no faith in ICC; they are more interested in handling matters internally. The
case of Abdullah al Senussi also proves that people have lost their faith in ICC. Abdullah was

the chief spy in Gaddafi’s army and Libyan citizens wanted him to be hanged to death.
Libyan citizens were not interested in considering the demand of ICC in this matter (Jalloh,
and Bantekas, 2017).
However it should not be said that ICC have failed always, in many cases it has demonstrated
great efficiency. For example Lubanga Dyilo was convicted and received a jail sentence of 16
years. This individual was accused for involving children in military and hostile activities.
Lubanga was the first man to be successfully convicted by ICC. Still the failures of this
organisation need to be criticised as it is holding an important position in the international
realm. The primary aim of this organisation was to punish the worst criminals associated with
war crimes, crimes against humanity and genocide (Vilmer, 2016). However due its
limitations it fails to achieve its goals. However, still the presence of such an institution is
necessary for maintaining law and order at global level. This organisation needs to work on
its limitations in order to enhance its efficiency. ICC needs to recruit a dedicated police force
in order to reduce its dependence on member countries. Despite being dependent on the
western countries financially it should focus on maintaining a neutral attitude towards
criminal activities taking place in different countries. Its jurisdiction should cover all nations
around the world, not a particular continent. The primary aim of this organisation should be
regaining the faith of people all over the world (Turner, 2017).
Conclusion
At the end of this discussion it can be stated that ICC has failed to create an effective system
of international criminal justice. This organisation aimed at delivering justice to the victims
of crime, however due to various limitations it failed to accomplish its goal. Several
allegations are there against this organisation. According to critics this organisation spends
huge amount of money each year, however its success rate is not comparable to the amount
of resources it uses. Added to this, not having a dedicated police force has limited its
efficiency negatively. The African nations have lost their faith in ICC as they think this
organisation gets manipulated by regional politics. Countries like Russia and the US are
allowed to intervene in its activities indirectly due to the veto power they hold. However
these countries have not joined ICC yet, therefore their interventions seem unjustified to
people from other countries. It has also been observed that most of its investigations take

place in Africa which directly indicates towards favouritism and biasness. Therefore in order
to strengthen its position in the international political realm, this organisation needs to
resolve all of the above mentioned issues.
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