The Legacy of the International Criminal Court: The Role that the Court Has Exercised

By Natasha Darlington

Natasha Darlington is a third year at the University of Warwick studying Law.

​Since its permanent formation in 2002, the International Criminal Court (ICC) has invested its time in finding those who have violated international law; thus, collecting evidence against them in order to ensure a fair and just trial under independent inspectors. Through the ICC, other ad hoc courts were created to deal specifically with particular conflicts. For example: in 1991, the Independent International Criminal tribunal for the Former Yugoslavia (ICTY) was created as an ad hoc court, meant to investigate grave breaches of the Geneva Conventions, violations of the law, genocide and crimes against humanity.

In analyzing the legacy that the ICC has had on ensuring whether justice is served in conflict litigation, whilst, the court has had successes over the last twenty years, including holding leaders accountable for their actions, one would argue, that the ICC has experienced setbacks including lack of resources, evidence and the ever diminishing credibility of the sentences handed over having negative effects on its’ position within the international community.


A positive legacy


There are a myriad of examples that provide evidence that the ICC has exercised a crucial role in bringing justice to numerous victims around the world. Through the relentless pursuit of war criminals, the court has been able to find enough evidence to arrest war criminals and then send them to the ad hoc courts including ICTY and the International Criminal Tribunal for Rwanda.


The developments, spearheaded by Carla Del Ponte, were published in 2004 demonstrating the positivity, according to the court that had built up since the early 1990s. These included “accomplishments in international law and strengthening of the rule of law.” [1] This referred to the Tribunal’s role in promoting the use of international standards in war crimes prosecutions in former Yugoslav republics.  Therefore, the strengthening of international law would enable better protections for civilians in case of future conflicts where leaders would abuse their powers.


Furthermore, there have been notable developments in international justice,  such as in the Čelebići Trial, where, for the first time, a court found rape to be a form of torture.


Other positive developments include that the court has been able to create a vast witness database providing prosecutors with ample material. Currently, there are 1.6 million pages of transcripts and 4500 witnesses. [2] As a result of extensive work of prosecutors, thousands of statements have been stored increasing validity as well as allowing aid to victims including witness protection, case management and legal standards in war crimes adjudication. Having said that, there were a number of flaws in some particularly sensitive cases.  For example, in the Foča massacre, witnesses were not able to testify, which hampered progress in the adjudication process.
Issues that the Court has faced


It can be stated that problems have existed within the ICC structure, which have diminished its credibility and questioned its legacy to ensure justice is served in future conflicts. There have been criticisms of lengthy and complex hearings and a large number of acquittals. Often, it is because of the lack of evidence that has been compiled by the prosecution against the accused. Acquittals including that of Franko Simatovic, who was head of the State Security Service in the Former Yugoslavia,shocked the international community, leading to some to argue that ‘the credibility of the ICTY is in shreds.’ [3]


Such doubts regarding the integrity of the ICC are due to the supposedly different treatments various accused are faced with, depending on their country of origin. In fact, some have argued that ‘double standards and uncertainty are the price we pay for having any humanitarian action at all.’ This rather pessimistic view must be countered, since there ought to be equal and fair justice for all, regardless of any external factors. [4]


Another problem that the court has had to endure is accusations claiming judgments have become politicised, giving rise to ethnic bias. This is a particularly relevant issue since, in October 2016, South Africa became the first nation to withdraw from the Rome Statute, which has led to other ‘African leaders to plan mass withdrawal.’ [5] Such a collective withdrawal would seriously question the authority of the ICC, with various African leaders criticizing the way in which the ICC pursues leaders. If more countries were to begin denouncing or even leaving the ICC, this would inevitably lead to ‘the ICC facing the most serious diplomatic crisis in its history,’ heightening tensions between various members of the international community. [6]


The future of litigation within the Court


Despite a number of setbacks, the ICC has achieved its mission that it has ‘dismantled the tradition of impunity for war crimes.’ Through its legal mechanisms, there is no doubt that the ICC has brought about justice in the prosecution of the perpetrators of crimes, holding leaders accountable as well as building a large witness database. [7]


There are concerns that the credibility of the ICC has faltered due to questions raised over politicized trials and barriers that remain between the court and various countries. Such tensions continue and ‘there are clear signals of concern about the future well being of the ICC in relation to Africa,’ as leaders claim bias in relation to cases pursued in the sphere of crimes against humanity and genocide. [8]


As the legacy of the ICC is likely to be repeatedly analyzed by those involved in the international legal sphere, in light of the recent evidence, it seems, that to regain trust and rebuild relationships, the ICC ought to reinforce national jurisdictions and promote regional level action so as to ease relations between the court and states, which will allow for justice to be served more proficiently and more effectively on a long term basis.  


[1] “Achievements of the United Nations, International Criminal Tribunal.” ICTY. Accessed March 17, 2017.
http://www.icty.org/sid/324


[2] “International Criminal Tribunal: Court Records.” ICTY. Accessed March 17, 2017.
http://www.icty.org/en/action/cases/4


[3] “Two puzzling judgments in The Hague,” The Economist. Accessed March 18, 2017.
http://www.economist.com/blogs/easternapproaches/2013/06/war-crimes-former-yugoslavia


[4] Ainley, Kirsten. “The Responsibility to Protect and the International Criminal Court: counteracting the crisis.” Academic Journal of International Affairs, 91 (2015): 37-54


[5] “African leaders plan mass withdrawal from international criminal court.” The Guardian. Accessed March 18, 2017.
https://www.theguardian.com/law/2017/jan/31/african-leaders-plan-mass-withdrawal-from-international-criminal-court


[6] Jeangene Vilmer, Jean-Baptiste, “The African Union and the International Criminal Court: counteracting the crisis.” Academic Journal of International Affairs, 92 (2016): 1319-1342


[7] “Achievements of the United Nations, International Criminal Tribunal,” ICTY. Accessed March 18, 2017.
http://www.icty.org/sid/324


[8] Bowcott, Owen “Rising nationalism leaves international criminal court at risk.” The Guardian. Accessed March 18, 2017.
https://www.theguardian.com/news/2016/dec/29/rising-nationalism-leaves-international-criminal-court-at-risk

The opinions and views expressed through this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.