The International Criminal Court (ICC) is an independent, permanent court that tries persons accused of the most serious crimes of international concern, namely genocide, crimes against humanity and war crimes. The ICC is based on a treaty, joined by 123 countries (effective as of 1 April 2015). The ICC is a court of last resort. It will not act if a case is investigated or prosecuted by a national judicial system unless the national proceedings are not genuine, for example if formal proceedings were undertaken solely to shield a person from criminal responsibility. In addition, the ICC only tries those accused of the gravest crimes.
The jurisdiction and functioning of the ICC are governed by the Rome Statute. On 17 July 1998, a conference of 160 States established the first treaty-based permanent international criminal court. The treaty adopted during that conference is known as the Rome Statute of the International Criminal Court. Among other things, it sets out the crimes falling within the jurisdiction of the ICC, the rules of procedure and the mechanisms for States to cooperate with the ICC. The countries which have accepted these rules are known as States Parties and are represented in the Assembly of States Parties.
The Non-Aligned Movement has insisted on the independent function of the International Criminal Court in accordance with its judicial nature. The NAM Member States argue against the control of the United Nations Security Council over ICC and affirm that Security Council’s responsibilities under the Charter of the UN should not limit the role of the Court as a judicial body and that the ICC should be empowered to pronounce on acts of aggression independently. NAM has expressed concerns about the abuse of certain provisions of the Rome Statute by the Security Council, including its practice to purport to selectively limit the jurisdiction of the ICC when referring matters to the ICC and noted that the practice amounts to an abuse of the powers of the Security Council to refer matters to the ICC.
One of the strongest criticisms made by the Global South and NAM on the relations between UNSC and ICC is that three of the five permanent UNSC members are not parties to the Rome Statute, to refer situations involving states not parties to the Court. This, it is argued, undermines the legitimacy of the ICC regime, if it is considered that its legitimacy is derived from its basis upon state consent.
Furthermore, in principle, it is questioned how those states not parties, especially from among the permanent members of the Council (P5 member states), can justify their exceptionalism, namely of subjecting to the Court another state not party while they do not accept the Court’s jurisdiction over themselves. NAM group also believes that if the International Criminal Court is being purportedly used as a tool in the advancement of policies other than those of accountability, the referral only bestows the Court with jurisdiction and that neither the Office of the Prosecutor nor the judges are bound by the referral. The global South has also stressed a need for the harmonisation of sanctions imposed by the Council against individuals who are also sought by the Court.
The concerns of the Global South and NAM over the interference of the big 5 in the ICC functioning are justified when one considers the fact that The 123-member ICC, in operation since 2002, has issued nine indictments, all against Africans, while double standards have been followed in dealing with the West.
The Non-Aligned States have continued to underscore the necessity of the independence of the ICC in accordance with its judicial nature. The Tehran Declaration of the Non-Aligned Movement stated that the Security Council’s responsibilities under the Charter of the UN should not limit the role of the Court as a judicial body. The Court should be empowered to pronounce on acts of aggression independently.