International Criminal Court's Authority In War Crimes: Legal Personality Insights

Paper Details 

Paper Code: RP-VBCL-22-2025

Category: Research Paper

Date of Publication: April 20, 2025

Citation: Manjula .N.S & Prof. (Dr.) Maruthi T.R, “International Criminal Court's Authority in War Crimes: Legal Personality Insights", 2, AIJVBCL, 299, 299-311 (2025).

Author Details: Manjula .N.S, Assistant Professor in Law, Vidyodaya Law College, Tumakuru, Karnataka

Prof. (Dr.) Maruthi T.R, Professor of Law, DOS in Law, University of Mysuru

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ABSTRACT

The International Criminal Court’s(ICC)legal personality is established by the Treaty - Rome Statute[1], to establish “jurisdiction over individual for most serious crimes concerned to the international community such as war crimes, genocide, crime of aggression, and crimes against humanity[2].International legal personality is the ability of an entity to have rights and responsibilities within a legal system[3]. For the ICC, this means it has the authority to investigate, prosecute, and try people accused of serious crimes, especially war crimes. [4] Even though ICC was created to establish international jurisdiction, but it does not cover universally. That is applicable only for state parties who sign the Treaty- Rome Statute.And also the jurisdiction of ICC is complementary to National Justice System. That is the ICC shall take up a case defer to State jurisdiction over War crimes, unless the State  does not investigate or prosecute due to  unwillingness or inability[5].The ICC may open an investigation into War crimes when a crime is committed in a member country, the United Nations Security Council  refer a situation, or with proprio motu, or aNon-State Member accepts the ICC’s jurisdiction for war crime that has taken place in a member State.[6] In this paper the author has made an attempt to understand the requirement of ICC’s Jurisdiction to investigate and prosecute the offenses relating to War crimes as per the Rome Statute.

Keywords: International Criminal Court, Rome Statute,  United Nations Security Council, War Crimes, International Legel Personality, State Party and Non-State Party.

INTRODUCTION

During conflicts worldwide, armies or rebel groups often commit heinous crimes against ordinary people, and these crimes frequently go unpunished by National Courts, leaving the victims unheard. In 1948, the United Nations General Assembly recognized the need for a permanent International Court to address the atrocities committed after the Second World War. The four major Allied governments—the United States, the United Kingdom, France, and the Soviet Union—established the International Military Tribunal (Nuremberg Trials) in Nuremberg, Germany, to prosecute and punish major war criminals of the European Axis. Additionally, the International Military Tribunal for the Far East (Tokyo Trials) was created in Tokyo, Japan, to prosecute political and military officials for war crimes and other atrocities committed during the war.

The world observed severe crimes in the former Yugoslavia and Rwanda. To address these atrocities, the United Nations Security Council set up two ad hoc tribunals in 1990: The International Criminal Tribunal for the former Yugoslavia (ICTY) and The International Criminal Tribunal for Rwanda (ICTR). These tribunals tackled the crimes committed during the Yugoslav conflict and the mass killings in Rwanda.

After this the movement,in 1989 establishment of  the International Criminal Court (ICC) began. In November 1992, the United Nations General Assembly directed the International Law Commission to draft the ICC Statute to address serious international crimes, including genocide, war crimes, and crimes against humanity,[7] highlighted by global conflicts and atrocitiesas a matter of priority. In 1994, the International Law Commission submitted the draft statute for the creation of the ICC. Subsequently, the General Assembly convened a conference in Rome in June 1998 to finalize the statute by delegates from 160 nations to  establish the International Criminal Court (ICC), an intergovernmental judicial body based in The Hague, Netherlands[8] known as the Rome Statutewhere individuals could be held criminally accountable for internal-national crimes[9]especially war crimes affecting the global communityby a permanent International Court[10]within its jurisdiction[11]and to serve justice[12].

ROME STATUTE

The operational framework of the ICC was completed with the adoption of rules, procedures, and evidence under Article 51 of the Statute during the First Assembly of the Member States in 2002, after being ratified by more than sixty countries.[13]The judges adopted the Court's functioning on May 26, 2004, and it took effect six months later, as no objections were raised by the majority of Member States.[14]

The ICC's authority encompasses the most severe international crimes specified in the Rome Statute. The Court functions based on the principle of complementarity.[15]It intervenes only when national jurisdictions are unwilling or unable to genuinely prosecute these crimes.[16]. The Rome Statute covers several essential components, such as the creation of the Court, its jurisdiction, criteria for admissibility, core principles of criminal law, the Court's structure and management, investigation and prosecution methods, along with procedural rules and cooperation frameworks for States.[17]

Countries that have ratified or accepted the treaty are known as States Parties. The ICC focuses on prosecuting individuals with the greatest responsibility in these States. The relationship between the ICC and the United Nations is formalized through an agreement endorsed by the Assembly of States Parties and finalized by the President of the Court on behalf of the ICC.[18]. The Rome Statute has globalized the system of international justice, enabling the prosecution of individuals suspected of committing these universal crimes in courts across the world.

A notable aspect of the Rome Statute is the ICC's independence, including that of its prosecutors and judges, from governments and the United Nations Security Council. This autonomy ensures protections against politically motivated investigations and prosecutions[19].

In 2010, the first review of the Rome Statute took place during the Review Conference in Kampala, Uganda, with participation from 111 States Parties, observer delegations from non-States Parties, NGOs, civil society, and other stakeholders.[20]Two key resolutions were passed to amend the ICC's jurisdiction over crimes. Resolution No. 5, under Article 8, expanded the Court's jurisdiction to criminalize the use of certain weapons in non-international conflicts, which were already banned in international conflicts. Resolution No. 6 revised Article 5(2) of the Statute, offering definitions, procedures, and conditions for the ICC's jurisdiction over the crime of aggression.[21]

The Court can exercise jurisdiction over international crimes if they are committed within the territory of a State Party or by one of its nationals. However, these conditions do not apply if the United Nations Security Council refers a situation to the Prosecutor, as their resolutions are binding on all UN member states, or if a State declares acceptance of the Court's jurisdiction. The Court is meant to complement national criminal justice systems, not replace them, and can only prosecute cases if national systems do not conduct proceedings, or if they claim to do so but are unwilling or unable to genuinely proceed. This principle is known as complementarity.[22]

The Prosecutor can initiate investigations or prosecutions in three ways:

1. States Parties can refer the situation to the Prosecutor.

2. The United Nations Security Council can request the Prosecutor to initiate an investigation.

3. The Office of the Prosecutor can independently initiate investigations based on credible information(proprio motu), provided it obtains prior authorization from a Pre-Trial Chamber consisting of three independent judges.

INTERNATIONAL LEGAL PERSONALITY

The Rome Statute created the ICC as the first permanent international court with the authority to prosecute individuals for war crimes. That is the Court has the authority to imprisonment, fines, and forfeiture of proceeds, property, and other assets derived from the crime. However, before moving forward, it is crucial to establish if the ICC has jurisdiction over a specific case. This is especially important when dealing with offenders who are not nationals of State Parties to the Rome Statute or when the crimes were committed outside the territory of a State Party.

To answer these questions, any court's jurisdiction is limited to what is granted by its founding Constitution or Legislation, in this case, the Rome Statute. The ICC was primarily established to end impunity for perpetrators of serious crimes and to aid in their prevention.[23]To reach these objectives, the ICC must possess international legal personality, derived from international law. Sovereign independent states are the primary subjects of international law, whereas intergovernmental organizations are often considered derivative subjects, with their legal personality acknowledged by member states, as specified in their founding charters.[24]

The ICC,  possesses three significant capabilities: the power to make treaties, the right to engage in diplomatic relations, and active and passive international responsibility.

The ICC's status asoutlined in Article 4, paragraph 1, of the Rome Statute[25], states that: "The Court possesses international legal personality and the necessary legal capacity to perform its functions and achieve its objectives. It can exercise its functions and powers as outlined in the Statute within the territory of any State Party, and through special agreements, within the territory of other States."[26]

Under treaty law, the ICC's legal personality is recognized only by the concerning Member States, meaning Non-Member States are not legally bound by its provisions, as they consider this provision to be res inter alios acta[27]. However, the establishment of a universal public body like the ICC cannot be entirely disregarded by Non-Member States. Firstly, the explicit provision of the Rome Statute granting the ICC international legal personality ensures that Non-Member States recognize the ICC's competence to engage in international activities. Secondly, and more importantly, the Rome Statute confers an objective legal personality on the ICC, which can be invoked even with respect to non-members.

In the 1949 Reparation for Injuries case, the advisory opinion of the International Court of Justice concluded that "Fifty states, representing the vast majority of the members of the international community, had the power, in conformity with international law, to bring into being an entity possessing objective international personality, and not merely personality recognized by them alone." [28]It is important to note that even without explicit recognition, the ICC's international legal personality would be derived from reasoning similar to that applied to the United Nations (UN). Unlike the Rome Statute, the UN Charter does not explicitly recognize the Organization’s international legal personality; however, the International Court of Justice (ICJ) determined this through the doctrine of implied powers.

However, in striving to achieve its goals, the ICC acknowledges in its preamble that it cannot accomplish its objectives in isolation. First, State Parties are obliged to fulfill their explicit obligation to enhance international cooperation with the Court under the Rome Statute. Second, although not required to do so, to prevent their national legal systems from being deemed unable to investigate and/or prosecute the crimes under the ICC's jurisdiction according to the principle of complementarity, they should incorporate the definition and prohibition of these offenses into their national legal frameworks.[29] It is the duty of every state to exercise its criminal jurisdiction over individuals responsible for international crimes.[30]

The ICC's objectives can only be achieved when it is internationally recognized as having legal personality. To this end, the Rome Statute includes jurisdictional requirements, also referred to as Principles of Jurisdiction, that grant the Court its international legal personality[31].

They are identified as follows:

1.      Subject matter jurisdiction in war crimes: Acts constituting crimes in the ICC: The ICC's jurisdiction ratione materiae is confined to adjudicating the most serious crimes of international concern as per Articles 6, 7, 8, and 8 bis of the Rome Statute. These crimes include: (a) Genocide; (b) Crimes against humanity; (c) War crimes; and (d) The crime of aggression. The Court can exercise jurisdiction over the crime of aggression once provisions are adopted in accordance with Articles 121 and 123, which define the crime and establish the conditions for jurisdiction.

  The list of international crimes is not static; new crimes can be added to those specified in Article 5 through amendments proposed by any State Party, judges acting by an absolute majority, or the Prosecutor.[32] These proposals require approval by a two-thirds majority of the Assembly of States Parties.[33]

The ICC can extend its jurisdiction to other crimes through similar amendments, which help the Court interpret and apply these crimes under its jurisdiction. Proposals must come from any State Party, judges by an absolute majority, or the Prosecutor, and need approval from a two-thirds majority of the Assembly of States Parties.[34]

In the case against Thomas Lubanga, the prosecution charged him with enlisting and conscripting children under the age of 15 and using them in hostilities during a non-international armed conflict, a war crime under Article 8(2)(e)(vii) of the Rome Statute. The alleged acts took place between July 1, 2002, and December 31, 2003.

Pre-Trial Chamber I, however, found that the armed conflict in Ituri was international from July 2002 to June 2, 2003, due to Uganda's presence as an occupying force. As a result, the Chamber reclassified the crime from Article 8(2)(e)(vii) to Article 8(2)(b)(xxvi), covering enlisting and conscripting children under 15 in international armed conflict until June 2, 2003.[35]

2.Territorial Jurisdiction in war crimes:The Ratione Temporis Principle:

To prosecute an individual, territorial jurisdiction is essential[36]. This means that a person can only be prosecuted if they have committed a crime within the Court's territorial jurisdiction. Specifically, the Court has jurisdiction over crimes committed within the territory of a state party to the Rome Statute.[37] Additionally, the Court can exercise jurisdiction over territories of non-party states that accept the Court's jurisdiction on an ad-hoc basis, as well as territories designated by the United Nations Security Council under Chapter VII of the UN Charter.

A state party to the Statute accepts the Court's jurisdiction regarding crimes referred to in Article 5[38]. The Court may exercise jurisdiction if one or more of the following conditions are met:

The state where the conduct occurred, or if the crime was committed on a vessel or aircraft, the state of registration of that vessel or aircraft.

The state of nationality of the accused person.[39]

If a non-party state accepts jurisdiction as required under paragraph 2, it may lodge a declaration with the Registrar, accepting the Court's jurisdiction over the specific crime.[40] The accepting state must cooperate with the Court promptly and without exception, as outlined in Part 9.

In the case of Gen. Augusto Pinochet, the House of Lords [41]raised issues of jurisdiction. Lord Millet observed that crimes prohibited by international law attract universal jurisdiction under customary international law if they meet two criteria: they must violate a peremptory norm of international law (jus cogens) and be serious enough to be considered an attack on the international legal order. He stated that the large-scale, systematic use of torture as a state policy is now regarded as an international crime, similar to piracy, war crimes, and crimes against peace, over which the UK has jurisdiction to prosecute.

With the establishment of the ICC, an alternative mechanism exists for prosecuting individuals for international crimes. The ICC, under the Rome Statute, has jurisdiction over the most serious international crimes, including genocide, crimes against humanity, war crimes, and the crime of aggression. The ICC's jurisdiction covers individuals who commit such offenses.

When such crimes occur, the situation can be referred to the Prosecutor by a state party to the Rome Statute, by the UN Security Council under Chapter VII, or the Prosecutor can initiate an investigation proprio motu. There is a conflict of jurisdiction between states and the ICC, as states have universal jurisdiction over the same categories of crimes covered by the ICC under the Rome Statute.

The principle of complementarity limits the ICC's jurisdiction, meaning the ICC only exercises jurisdiction if the territorial state or the state of nationality of the offender is unable or unwilling to prosecute the accused.

In the Uhuru Kenyatta case[42], state government cooperation proved crucial for the success of the ICC. In 2010, the ICC launched an investigation into post-election violence in Kenya that killed over a thousand people. Kenyatta and five other political figures were named as suspects of crimes against humanity. The investigation continued as Kenyatta became president in 2013. On March 13, 2015, the ICC withdrew charges against Kenyatta, citing lack of cooperation from the Kenyan government and witness tampering as reasons for undermining the case.

1.      Personal Jurisdiction in war crimes: Determining the Guilty:

The Rome Statute introduces significant innovations in dealing with individual criminal responsibility and liability for crimes within the ICC's jurisdiction.[43] The Court has authority over individuals, not states.[44] A person found guilty of a crime under the Court's jurisdiction is individually responsible and subject to punishment, whether acting alone, jointly, or through another person. This includes those who order, solicit, or induce crimes, aid in their commission, or contribute to crimes committed by a group with a common purpose.

Contributions must be intentional and aim to further the group's criminal activities or be made with knowledge of the group's intent to commit the crime. For War crimes, individuals who directly and publicly incite others or attempt the crime can be held liable. If someone abandons their criminal intent or prevents the crime's completion, they are not liable for the attempt.[45]

No person shall be tried for conduct already convicted or acquitted by the Court (Ne bis in idem).[46] Article 22(1) states that criminal responsibility under this Statute requires that the conduct constituted a crime at the time it occurred (nullum crimen sine lege). Punishment can only be applied per the Statute (nulla poena sine lege).[47]

Article 30(1) emphasizes that criminal responsibility requires intent and knowledge. In the Muammar Gaddafi case[48], the ICC issued arrest warrants based on allegations of crimes during the Arab Spring protests[49]. The case was terminated following his death on November 22, 2011[50]. This demonstrates that individuals, not states, are held criminally responsible under the ICC.

2.      Temporal Jurisdiction - Addressing crimes over time :

This refers to a State's or Court's jurisdiction over legal actions influenced by the passage of time. Article 11 of the Statute, in line with Article 126 ICCRSt,[51] establishes the ICC’s temporal jurisdiction. This began "on the first day of the month after the 60th day following the deposit of the 60th instrument of ratification, acceptance, approval, or accession with the UN Secretary-General," making July 1, 2002, the starting date for the Court's jurisdiction[52].

The ICC cannot exercise jurisdiction retroactively; it can only prosecute crimes committed on or after July 1, 2002, the date the Rome Statute, adopted on July 17, 1998, came into force. Crimes listed in Article 5 that were criminal under international law but committed before this date are excluded.[53] Article 11(2) states that if a State joins the Statute after its entry into force, the Court may only exercise jurisdiction over crimes committed after the Statute's entry into force for that State, starting from the first day of the month after the 60th day following the State's deposit of instruments of ratification, acceptance, approval, or accession, unless the State declares otherwise under Article 12, para 3.[54]

Article 11 should be read with Article 24, which states that no one is criminally responsible for conduct occurring before the Statute’s entry into force (Principle of Non-Retroactivity). The ICC Pre-Trial Chamber I addressed the ICC's temporal jurisdiction in the Lubanga case,[55] determining that the Statute entered into force for the Democratic Republic of Congo on July 1, 2002, as per Article 126(1), with the DRC having ratified the Statute on April 11, 2002. The Court found that the crimes attributed to Thomas Lubanga Dyilo, committed between July 2002 and December 2003, fell within the ICC's temporal jurisdiction under Article 11(2).

DETERMINING THE BOUNDARIES OF ICC JURISDICTION IN WAR CRIME CASES

With differing views on the situations where the International Court may intervene, one approach followed by the ICTY Statute, suggesting that this power should be vested in the Court. Draft Article 24 indicated that the Court must confirm its jurisdiction. Consequently, it is up to the Court to decide whether to initiate an investigation. Some delegations opposed this, arguing that the ICTY precedent did not reflect the current stance of States and was shaped by unique circumstances. Hence, it was suggested to establish standards applicable to various situations.[56]

Three options were proposed to address this issue: (a) the Court would only exercise jurisdiction with the consent of States competent to investigate; (b) the Court would determine its jurisdiction based on criteria specified in the Statute; and (c) the Court would establish its jurisdiction within flexible parameters. The latter two options were seen as problematic because they did not require State consent for initiating investigations, a situation States were unwilling to accept.[57] Therefore, it was necessary to examine the implications of a State's refusal of the Court's jurisdiction.[58]

CONCLUSION

 The ICC Statute, being a comprehensive constitutional document,[59] aims to end impunity by acknowledging individual criminal responsibility under international law and enforcing international justice. However, this is only feasible if the ICC possesses International Jurisdiction. The ICC should inherently have jurisdiction over genocide, crimes against humanity, and war crimes to function effectively.[60] Nevertheless, the ICC's jurisdiction is complementary, activated only when a state is unwilling or unable to prosecute individuals responsible for international crimes.[61] The ICC Statute explicitly relies on the consent to jurisdiction, either by becoming a state party or by special consent,[62] rather than on universal jurisdiction.

When it comes to war crimes, the ICC plays a crucial role in holding individuals accountable for atrocities committed during armed conflicts. The Court's mandate includes prosecuting those responsible for serious violations of the laws and customs applicable in international and non-international armed conflicts, such as willful killing, torture, and the use of child soldiers. War crimes fall under the ICC's jurisdiction when committed on or after July 1, 2002, the date when the Rome Statute entered into force.

Additionally, a person cannot be held criminally responsible under this Statute unless the conduct constitutes a crime within the Court's jurisdiction at the time it occurs.[63] This raises questions about how a national of a non-party state, which has not accepted the ICC's jurisdiction at the time of the conduct, could be held criminally liable for actions not within the Court's jurisdiction. Increasing the number of member states will enhance the ICC's jurisdiction and effectiveness, particularly in addressing war crimes and ensuring that perpetrators are brought to justice.

SUGGESTION

·         The ICC's jurisdiction is complementary to national jurisdictions, meaning it steps in only when the State is unwilling or unable to prosecute. This rule also limits its international capacity. To address this, it is suggested that the ICC should be given exclusive jurisdiction over these offenses. The goal is to support the rule of international law. The ICC can aim for universality by encouraging more states to accede to the Rome Statute.

·         The ICC's jurisdiction currently covers only four categories of crimes, leaving out other significant issues such as international drug trafficking, terrorism, money laundering, human trafficking, small arms trafficking, cyber crime, use of nuclear weapons, and environmental damage. These global problems transcend borders and impact world order, posing threats to peace and security. Addressing these crimes is crucial to encourage more Non-State parties to join the ICC.

·         Within that group, the ICC exercises jurisdiction only when States are unwilling or unable to prosecute alleged perpetrators. The level of "unwillingness" is challenging to assess: In Colombia, for instance, the ICC has never asserted its jurisdiction, arguing that some culprits—low-rank FARC members and paramilitaries—had been tried before national courts. These restrictions leave thousands of victims outside the ICC's scope, including Syrian victims, as the country has not ratified the Statute. In this regard, the Statute should provide clearer wording.

·         Given the ICC's limited capacity to handle cases, the Office of the Prosecutor should prioritize collaborating with prosecuting States, as both share the common objective of diminishing safe havens for international criminals.

·         There are no known precedents for delegating territorial jurisdiction to another state without the consent of the defendant's state of nationality when the defendant is a national of a third state. Customary international law of territorial jurisdiction should allow the delegation of territorial jurisdiction to an international court, even without the consent of the defendant's state of nationality.

·         Several State parties have established war crimes units with specialized police, prosecution, and immigration units to investigate international crimes. However, these units face significant challenges, such as insufficient resources for complex investigations, contacting victims and witnesses of past crimes committed abroad, gathering evidence, difficulties in international cooperation, and translation issues. Enhanced cooperation with the Office of the Prosecutor's specialized investigators, expertise, and resources would greatly benefit these units, particularly when national authorities conduct investigations in the same conflict zones as the ICC.

* Assistant  Professor in Law, Vidyodaya Law College, Tumakuru, Karnataka

** Professor of Law, DOS in Law, University of Mysuru.

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