Veronica Maimescu

International justice is a fundamental aspect of the international legal order, reflecting the shared commitment of the global community to uphold human rights, protect vulnerable populations, and promote peace, security, and the rule of law. In a world torn apart by conflict and division, we could say that, the justice system stands as a symbol of unity and solidarity, its very existence a testament to humanity’s enduring commitment to justice and world peace. Through, principles and frameworks international justice guides the prosecution of those responsible for serious crimes, particularly but not exclusively the genocide, war crimes and crimes against humanity.

Nevertheless, the international justice system faces challenges that test its resilience and questions its efficacy with vulnerabilities that have the the power to shake up or even dismantle the entire system. The weaknesses can be found even at organisations roots, foundation model itself proves to be less effective this could be because of the complexity of its objectives and heavy reliance on external actors. Scholars often highlight three major dilemmas associated with the organisation which are in term of its effectiveness, impartiality, and enforcement mechanisms. Despite its noble objectives, the system has also faced criticism for its failure to meet expectations and address injustices within its own framework.

Understanding the flaws within the international justice system requires delving into its historical development and functioning over time. By examining key milestones and developments, it helps to gain clarity on how the system has shaped and what it is expected to achieve. While this article primarily aims to pinpoint vulnerabilities, it does not intend to minimise or discredit the role of the International Criminal Court (ICC) within the international justice system. Instead, it seeks to critically pinpoint weaknesses and discuss aspects that could help see the organisation in a new light. It is crucial to recognise that the ICC remains a pivotal mechanism within the international justice system with a great potential for improvement.

The development of International Justice System. The rise of sovereign state.

Historically, the development of the international justice system has been shaped by various noteworthy events contributing to the evolution of international law. In early civilisations, justice was predominantly administered locally or within individual states or empires, with minimal emphasis on international justice as understood today. Even so, resistance from parties can be still observed as an aim for political tactics. For instance, individual states still resort to domestic legislation to circumvent international law when it aligns with their interests. As Malcolm N. Shaw emphasises, the presence or absence of specific provisions within a state’s integral framework cannot be used to evade international obligations. Yet, states and individuals succeed in violating international law with minimal accountability which is not only disheartening but also undermines the trust so hard to gain, but so easy to lose.

The roots of the modern global justice system, as we know it today, can be traced back to the signing of the Treaty of Westphalia in 1648, which laid the groundwork for contemporary international relations. This treaty, described as having a revolutionary character by Patton (2019), marked the rise of the modern state system and the principle of “state sovereignty” as a cornerstone of international law. Besson (2011) argued that this principle asserts that states should have exclusive control over their territories and internal affairs. However, in practice, state sovereignty can be challenged in various ways. For example, neighbouring states asserting territorial claims and occupying another state’s territory can undermine the authority of the affected state. It not only undermines authority but also has the potential to destabilise the world order and incite conflicts.

The United Nations has played a significant role in upholding and protecting state sovereignty by prohibiting territorial aggression against other states and attempting to mitigate conflicts though dialog and diplomatic measures. In the aftermath of World War I, the League of Nations was established as a precursor to the United Nations, with a primary objective of promoting peace and preventing future conflicts through collective security and arbitration mechanisms (UN Geneva).

While the effectiveness of the League of Nations was limited and failed to prevent the outbreak of World War II, the seeds for an international organisation dedicated to achieving world peace were planted. Following the war, the Allies conducted the Nuremberg and Tokyo Trials to prosecute Nazi and Japanese war criminals for crimes against humanity, war crimes, and genocide. These trials served as key methods for holding individuals accountable for international crimes, regardless of whether they were acting under orders from a government.

Although many crimes remained unpunished, these trials provided a sense of unity in the pursuit of justice, reconciliation, and healing efforts. Subsequently, the establishment of international courts and tribunals such as the International Court of Justice (ICJ), the International Criminal Court (ICC), and ad hoc tribunals for Yugoslavia and Rwanda marked significant progress in the field of international justice, developments that merits acknowledgement.

The International Criminal Court (ICC) as a mechanism to prosecute individuals for the most serious international crimes, including genocide, crimes against humanity, war crimes, and the crime of aggression.

The ICC was established by the Rome Statute, which was adopted in 1998 and entered into force in 2002 with a purpose to prosecute the most heinous violations of human rights (ICC, 2020). Despite jurisdiction being a complex notion and requires an extensive explanation, simply put the ICC has authority over individuals for crimes committed based on the following circumstances. First, within the territory of states that have ratified the Rome Statute or for crimes committed by nationals of such states, regardless of where the crimes occurred. Second, it can exercise jurisdiction if the United Nations Security Council refers a situation to it, even if the state involved is not a party to the Rome Statute. Third, the prosecutor may commence investigations proprio motu upon receiving information from reliable sources (ICC, 2008). The ICC is guided by principles of fair trial and due process, including the presumption of innocence, the right to legal representation, and the right to appeal. However, there are instances where the ICC falls short in following these principles because of various factors, such as limited jurisdiction over non-member states and challenges in securing cooperation from certain governments.

The ICC vulnerabilities based on conformity with requirements and expectations

As previously mentioned, the ICC is mandated to prosecute the most serious crimes within its jurisdiction, namely genocide, war crimes, crimes against humanity, and the crime of aggression (ICC, 2020). The ICC must adhere strictly to the legal framework established by the Rome Statute, ensuring compliance with its jurisdiction, procedures, and principles of fair trial. Additionally, it must uphold transparency in its procedures, maintain independence and impartiality, allocate resources adequately, and collaborate effectively with national authorities.

The expectations placed on the ICC are exceedingly high which generates pressure to deliver justice while navigating though political sensitive ground. As highlighted by Carsten Stahn, Professor of International Criminal Law and Global Justice at the Leiden Law School and Queen’s University Belfast, there exists a stark discrepancy between reality and expectations, as the ICC processes struggle to translate anticipated outcomes into tangible results due to the complex nature of the system, structural dilemmas, and ambivalent justifications.

Of course, the global community expects objectivity and timely delivery of justice from the ICC as it represents a significant beacon of hope for victims seeking restorative justice and when it fails the consequences are profound and the system is to be blamed. Moreover, there are high expectations regarding the efficiency of punishment, irrespective of perpetrators status as victors or losers in conflicts. However, during wars, individuals from both sides often commit serious crimes, and the system frequently does not have the capacity to provide justice for all, thus, becoming ensnared in the politics of tactics.

The Struggle with Funding, Politicisation, and Operational Capacity

Vulnerabilities within the ICC system have persistently existed, ranging from longstanding issues to more recent challenges, each varying in their impact on credibility. One of the most serious, however lies in the opaque funding, which sets off a chain reaction like the snowball effect. What may initially appear insignificant can gradually accumulate into larger and more perilous problems, making them challenging to address. ICC has been mandated to prosecute the most grave crimes within its jurisdiction, but when it comes to securing adequate resources, the ICC encounters barriers including but not limited to conducting thorough investigations, provide proper legal representation, and ensure fair trials. The lack of genuine commitment from states to provide funding hampers operational capacity, yet the expectations placed on the ICC remain exceedingly high.

The lack of consensus among states on the principle of burden sharing and the equitable distribution of funding responsibilities leads to heavy reliance of ICC on funding from certain states or entities with vested interests which raises concerns about potential bias or undue influence on the court’s decisions. As the International Criminal Court grapples with allegations of politicisation, states continue to exploit its proceedings for their own political gains, turning justice into a bargaining chip rather than a duty.

Effective collaboration with national authorities is imperative for the ICC to obtain crucial evidence, execute arrest warrants, and enforce judgments. However, vulnerabilities emerge when national authorities are unwilling or unable to cooperate. Regardless of the reasons, in such cases, the ICC’s ability to prosecute perpetrators and deliver justice may be compromised which also could explain the prioritisation of some cases over others.

It’s essential to recognise that the ICC operates within a framework of international law, emphasising due process, fairness, and the rule of law. But, societal expectations of justice often encompass broader notions, potentially leading to discrepancies between legal procedures and social moral standards. For example, stringent evidentiary standards required by the ICC may result in acquittals or the inability to prosecute individuals despite strong public perceptions of guilt.

The ICC is expected to maintain high standards of legitimacy, fairness, and accountability while adapting to evolving legal norms, geopolitical dynamics, and technological advancements. Challenges may arise if the ICC’s decisions and actions are perceived as out of touch with societal expectations or if its institutional structures fail to keep pace with changing realities. Despite falling short of expectations and objectives, the ICC remains a crucial mechanism, if not to prevent, at least to discourage crimes.

Improving justice for the sake of future generations

The questions on how to straighten the ICC remains widely unexplored and little is done to actually shape the ICC system. Perhaps not the system itself is highly vulnerable but the expectations towards the system are set too high, in a way unrealistic to the actual possibilities, available resources and capacity to prosecute crimes. Many scholar could agree that seeing ICC as merely an instrument could in fact be more accurate rather than placing the burden of world justice in ICC’s hands considering the paradox the system was built upon. We could argue that ICC assumed to much and when you cannot keep up with commitments made no matter the causes whether resources, complexity of cases or political influence, the trust in the institution diminishes along with the efficiency.

There is no shame in acknowledging mistakes; it is often the first step towards growth and improvement. Similarly, there is no shame in adapting and changing the course when necessary. Following discussions from a webinar hosted by the British Institute of International and Comparative Law (BIICL) on the necessary changes needed at the International Criminal Court, it is suggested that reforms are required in governmental, cultural, and operational aspects, including the Office of the Prosecutor, the Judiciary, and the relations with the Assembly of States Parties.

Indeed, rethinking the institution or perhaps the international dynamics, making adjustments to bridge the gap between expectations and reality, including concentrating efforts from multiple actors can be a proactive and constructive approach. Richard Dicker, who served as Director of the International Justice Program (2001-2021) at Human Rights Watch reiterates the importance of effective collaboration with key stakeholders—including states parties, civil society, and Court staff—to elevate their performance. Such enhancements are imperative for the Court to effectively confront the challenges it faces.

Establishing attainable objectives, while potentially demystifying the system, is a positive step forward. This approach can foster sustainable advancement and yield greater satisfaction over time. While questions regarding legitimacy and credibility persist, as suggested by (Krever, 2013), it is crucial to bolster trust in the system by enhancing efficiency and expanding the caseload, this is important because the ICC still remain a major driver of legal and institutional reforms and perhaps if the organisation could receive adequate and diversified resources it may safeguard against the ICC being diminished to a tool of influential states.