The idea of creating International Criminal Court (ICC) is profound to the global justice system for holding individuals criminally responsible for war crimes, crimes against humanity and genocide. However, the court’s enforcement mechanism lacks effective authority to prosecute certain people, even those in the Rome Statute jurisdiction. Most war crimes are committed by head of states through complex states’ policies by ordering their armed forces to engage in armed conflict. It is extremely difficult to the ICC prosecute people in power in a sovereign state. For instance, when the ICC prosecutors opened an investigation on Philippine president’s war on drug policy, he decided to withdraw his country from the ICC membership. Additionally, the central theme of the ICC is Principles of Complementarily, which ICC would not replace domestic courts; thus, the principles and scope of the ICC contradicts the principle of sovereignty and territorial integrity under the international law. If a state does not intend to cooperate to the ICC, then the court deemed ineffective.
The ICC can only hold accountable to individuals committed the crime, not the state. The individualization of the war criminals from the state is practically problematic because individuals commit war crimes serve as an agent of the state; and therefore, the individual(s) enjoy state-provided immunity that will prevent them from prosecution by the International Criminal Court. For instance, on September 2, 2020, U.S. harshly sanctioned senior ICC officials when the office of the ICC prosecutor opened an investigation on Americans and Israelis for their alleged crimes in Afghanistan and Iraq. This shows that ICC is not and cannot have a judicial and prosecutorial independence from the members of the Security Council that use political power in the international institutions. The International Criminal Court is legally independent from the United Nations, however, grants certain powers to the United Nations Security Council. Ironically, three of the Five-permanent Member States of the Security Council (United States, China, Russia) are not members of the ICC. The question is how permanent member states of the Security Council can have certain powers on the ICC and not be members of the ICC? Crimes committed by their citizens or citizens of their allies cannot be held accountable and tried at the ICC. U.S. congress passed American Service-Members’ Protection Act in August 2002, a month later after the Rome Statute entered into force in response to the International Criminal Court. The American Service-Members’ Protection Act protects US military and appointed personnel from criminal prosecution by the international criminal court. The influence of Russia, China and the United States on the ICC and their non-membership to the Rome Statute demonstrates the court’s current and future darkness for international criminal justice and improvement for global security. It is clear that the functions and practices of the ICC surrounded by global politics, therefore, it is less likely to effectively prosecute war criminals and support justice for those victimized.
The ICC is surrounded by circumstances that prevents to exercise its very nature of independent judicial body. when we look both sides of the debate on the ICC as global justice system, ICC will never be effective on mitigating war crimes and effectively prosecute those responsible. On the other hand, I think it is a good idea to have the ICC as a symbolic for global justice system as a platform for addressing war crimes. From 2002-2020, the massive criticism to the court and the court’s prosecution pattern, focusing on Africa, derails the confidence of the international community to the court. This has resulted a call for mass withdrawal from the Rome Statute. The gravity of the questions to the ICC’s legitimacy may result the collapse of the court because the court lacks jurisdictional authority to the states that has high record of violations of the Human Rights inside and outside of their territorial boundaries, according to many Human Rights reports.
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