International Criminal Court: A Study Of Adaptation And Change In The Roles And Functions (By: Vasundhara Singh)

International Criminal Court: A Study Of Adaptation And Change In The Roles And Functions
Authored By: Vasundhara Singh
 
Introduction
Instead of a mere study of changing roles and functions, this study is designed to capture the broad picture and trend of changing and transformation of International Criminal Court (ICC). The study examines how and in which context ICC’s roles and functions have undergone gradual and turbulent change. The study also elaborates on the factor that forced the International Criminal Court (ICC) to undergo transformational change.
The idea of organisational errors, the ability of organisations to change their behaviour, output, and the factors which enable international organisations to survive in changes in environmental conditions are transformative and adaptive changes in the international organisations. (Haas 1990)The study of international organizations (IOs) is lacking theoretical depth. However, the field actually has a more solid theoretical foundation than some of its critics allege. Moreover, the variety of approaches has entailed multifaceted knowledge of the internal workings as well as the global effects of IOs. Three theoretical traditions have emerged, dealing with institutions, organization, and governance. Institutional analysis has a central position in political science. In the study of domestic institutions, three major schools—rational choice institutionalism, historical institutionalism, and sociological institutionalism—have emerged.
Organization theory represents a change of focus from the ideational structures studied by institutionalists to more material and human structures. Whereas both institutional and organizational approaches were originally formulated for domestic structures, institutionalists have been more receptive to exploring domestic-international analogies and contrasts. Even if both institutional and organization theories pay attention to process, institutionalizing rules and practices as well as organizing collective entities are long-term processes, IO studies inspired by these
 
approaches tend to focus on relatively stable structures, asking questions concerning the establishment, persistence or change, and impact of international institutions and organizations. A third, more recent perspective focuses on continuous processes of governance, involving international organizations as well as other types of actors.
This study traces the requirement that rose at the end of the Cold War for establishment the International Criminal Court. It was established with intension to put an end to impunity for abominable crimes like genocideand war crimes. Since its establishment, ICC has undergone several transformations and changes as it, confronted by various difficulties in the handling and prosecution of war criminals. This study examines the contexts and specificities of various kinds of changes and transformations it has undergone to make itself relevant.
 
Definitions, Rationale, And Scope Of The Study
 
Haas (1990) refers to the transformational change refers to the change in the basic structure of the international organisation itself—its strategy, culture, organization, physical structure, processes. Whereas adaptive change happens incrementally over time, transformational change is often sudden and dramatic. Adaptation depends upon new sources of knowledge to redefine problems. This process refers to the adjustment of work style or sturdiness by changing conditions of environment and surroundings without advance planning.
 
Research Methods
 
This study adopts a qualitative method. It is deductive in approach as a proposition on adaptation, and transformative changes that ICC has gone through over the years. Change is first used as a dependent variable to discern how the change has taken place, with the independent variables being endogenous and exogenous factors of change. A further distillation of these factors allows the study to enumerate them as sources of change.  It adopts Haas ’three models of change as a theoretical lens to understand the phenomenon of change in ICC.
 
 
 
 
Theoretical Understanding Of Changes In International Organization
 
Bennett (1995) is the view that change is a complicated process which implies an act of modification, transformation and so on in accordance with environmental demands. Change is a constantly defining characteristic of international relations that is brought about by the complexity of causes and problems. Change is not only a "major phenomenon of the modern world", but it is also happening at an accelerating rate.
 
Heywood (1997) stated that change results progress or decay, growth or decline which is brought about by either "evolution" or "revolution".
 
Haas (1990) explained that the stability and survival are brought by adaptive behaviour that provides opportunities for improvement in the life of organisms under changing environmental conditions.Furthermore, he explained that adaptation refers to the idea of behavioural changes in the international organisations by adding new activities or by dropping old ones, but he further stated that the internal functioning of the international organisations cannot be altered without depending upon the examination of theories, programs and values. He emphasized that the alteration means that ultimate purpose of the organization is not questioned in the process of adaptation, due to triumphs of "technical rationality". Therefore, adaptation concerns itself with incremental change by adding new ends or purposes without "worrying about their coherence with existing ends" and makingany attempt at nesting logical purposes.
 
Haas(1990) explains that the adaptation through incremental growth “features the successive augmentation of an organization’s program without any change in the organization’s decision-making dynamics or mode of choosing”.Haas is of the view that ‘turbulence non –growth’ characterizes changes in organizational decision-making ends no longer cohere internal consensus on both ends and means disintegrates when the organization finds itself   in a setting of enormous social complexity. It is the result of the different perception of actors, rapid change in scientific and technological knowledge, rapid change in global structure and the appreciation of the significance of social time.
 
Barnett and Finnemor (2006), in the case of international organizations, has a different approach from Haas in the terms of the new adoptive functions of the ICC. Barnett and Finnemor have focused on the changing circumstances and the internal as well as the external factors. Haas is of the view that changes in organizational functions are dependent on cohere internal consensus but Barnett and Finnemor believed that internal and the external functioning of the organizations or the stakeholders who are involved closely with the organisation influence the adaptive changes in an international organisations.
 
Origin Of Icc As An Organization
 
Megret(2018) stated that the conflicts that marked the 20th century, some of the most abominable crimes had been committed. Many of these international law violations remained unpunished.He further stated that the strong link between projects of international criminal justice and the idea of international peace was the very strong association between a hypothetical ICC and the international peace machinery which had not been achieved in the past.
 
Mauro, (2012) had view that ICC was designed to exercise its jurisdiction in respect of crimes committed by the state parties and State became a Party upon its entry to the Statute shall be forced into forceful binding of the Status and that point the countries shall be liable enough for their actions. He further stated that if the Member State is a party to the Statute of Rome (1998), it agrees to take charge of the crimes set out in the Statute. According to Maurothe national courts were unwilling and also no jurisdiction to act upon cases involving international genocide, war crimes etc; there was a dire need for an integrated third party or an International Justice System to make the individuals accountable for the abominable crimes.
Mauro (2012) was of the view that ICC was formed to enforce an International Justice System to prevent impunity of individuals who committed major crimes against humanity.
Hunt, (2004) was of the view that the adoption of the Statute Rome in 1998 is a milestone achievement. It promised a new dawn in the field of international criminal justice, envisaging a community of States working together in the pursuit of shared aspirations and intuitions.
 
 
 
 
 
 
Initial Roles And Functions Of Icc
Mauro, (2012) explains that the ICC is an independent body whose role is to prosecute persons for crimes within its remit without a special mandate from the United Nations.
Antonio Cassese(1991) explained that the roles which are played by the ICC, he said the first role is that. The ICC enforces integrated mechanism for bringing about Individual Accountability for International Crimes.He further states that themain role of ICC is to adjudicate upon individual accused of War crimes, Crimes against humanity and Genocides.  For the past few decades nations have felt the need of a proper mechanism that enforce laws that will hold individuals accountable for serious International crimes. For example- in case of violations of the Geneva Convention, Genocide conventions, customary laws for war crimes etc; national courts were expected to resolve the matter.
B Schmitt(2018) is of the same view as Mauro, that the ICC is a permanent autonomous tribunal has much more power and has a substantial role in changing the world scenario as compared to the limited jurisdiction and mandate for former Yugoslavia and Rwanda ad hoc tribunals and similar tribunals established under United Nations auspices to deal with particular circumstances and issues.
Mauro, (2012) said that the third role of the ICC has been to resolve the limitations of the Ad Hoc tribunals, in cases as evident from history (like the issues of former Yugoslavia and Rwanda or even Nazi Germany) ad hoc tribunals used to be set up to solve international crimes and bring about conviction.
Mauro, (2012) fourthly he stated that ICC recognizes the role of the Security Council as special role to maintain peace and security. It’s mentioned under the Rome Statute that the Security Council will be referring cases to ICC so that unnecessarily loose Ad Hoc tribunals are not created.
Donovan, (2012) explained that there was upcoming reason for ICC to evolve in their roles with the changing times and making sure that the changing roles are in sync with the need of the member states and the circumstances hence the need for the Tribunal to exercise its competence if the alleged offender is a national of a State Party or if the offence was committed in the territory of a State Party came into existence. 
 
Icc’s Challenges
Without professional and efficient working methods, without an Office of the Prosecutor which carries out its duties in an optimal manner, the ICC cannot function. Kasaija, (2006) discusses about the challengesthe Prosecutor and his Office to build-up of an organization which is as efficacious as possible, and development of professional and efficient working methods, in particular with regard to investigations. He further discusses that the states parties and all forces who support the ICC cannot let down the Court in respect of arrests as it would hamper the functioning of the court.
Antonio, (2006) also discusses about the difficulties encountered of serving arrest warrants and transferring suspected criminals to The Hague.
(Kaul, 2007) likewise said that the ICC with regard to the decisive question of arrests and transfers to The Hague.
 
Adaptation Of Icc’s Roles And Functions
Whiting, (2021)stated that the constant adaptation of the roles and functions of the ICC and the tribunal has always helped to curve the genocide and terrorism and any inhuman criminal activity. He highlights that the adaptation is all the more necessary as now the terrorists’ attacks unlike warring groups in the internal conflicts are becoming more focused on civilians and less focused on military.
B Schmitt(2018), Vasiliev, (2019), and Vos(2020) stated that it is the most important aspect of ICC to learn from the mistakes. All the three thinkers are of the view that until unless ICC does not grow along withthe stakeholders of the states or even the circumstances and situation around the world, the proper functioning of the ICC shall never be able to come up front and the vision and the mission of the ICC shall be lost in the due course.
Hunt, (2004) has beautifully laid down that the adaption of the roles and functions of ICC which enable it to carry out its task smoothly and legitimately. The adaption of the roles and functions of the ICC’s have been directly related to the circumstances and situations which also the strained legacy some of its judges have said, done or not done, such as their failure to, at times, issue cogent and authoritative decisions. These missteps have tainted the ICC as a judicial institution, affecting both its credibility and the clarity of the applicable law. Hunt thinks that these lows have given a chance to the ICC to adapt changes in its roles and the functions and strength the loopholes. This paper purports to be an opportunity to diagnose these problems and to identify an analytical framework to appropriately tackle them.
Hunt(2004) explains that how the adaptive changes of ICC have been taking place since and external factors are a significant part, to the adaptive changes in the internal roles and functions of ICC.
Whiting (2021)stated that with passage of time ICC through constant changes in the roles and functions considering the internal and factors of the events or the decisions made by the ICC keeping in mind the role of the stakeholders, ICC has become of a judicial institution fairer and more efficient where judges are in full accordance with the principle of legality.
Akande, (2020), had an opinion that there have been no adaptative changes in the ICC, the status of the roles and functions of the ICC remains the same. The National Courts are still reluctant to act on such cases owing to widespread systematic violence and most importantly due to the involvement of States themselves. Thus, to punish the agents of such governments and bring about not only collective but also individual criminal liability for such crimes, and ICC has not adapted to the changing times since it was established.
Sadat, (2018) also states that there have been no adaptive changes. A lot had been expected from ICC and the tribunal, ICC is looked upon for executing its roles and functions and adapting as the need arises, at least for the time being, bound to endure as an only partially successful institution, constrained by the diatribe among States Parties and States that oppose it. Be that as it may, the fact is that the ICC does exist, against all odds, and should therefore move forward. Yet, it seems to be navigating backwards in its roles and functions.  To one’s dismay, one of the causes lies in the conduct of those who should be leaders of the organisation (Sadat, 2018), Their behaviour portrays, at times, a lack of modesty and collegiality. One could argue that these missteps may be just a few bumps along an otherwise stable path of well-balanced jurisprudence, while the ICC is still moving from adolescence to adulthood (Sadat, 2018). This paper asserts, however, that they are indicative of a malaise within the ICC, which needs to be adequately reflected upon in order to contribute to the discussion on whether a change of course is warranted at the ICC.
 
 
 
 
 
 
 
 
Transformation Changes Of Icc’s Roles And Functions
Delmas-Marty,( 2013) is of the view that  atransformative change has taken place in the role and functions of the ICC and how with changes times it has defined crimes which have been the subject of jurisdiction of the ICC. The ICC is mandated to only exercise its jurisdiction over the crimes when the state(s) where the atrocities were committed is/are unable or unwilling to prosecute perpetrators of the offences which is a regularoccurrence.
Guilfoyle, (2018) has spoken with regards to the transformation in the roles and function with respect to the jurisdiction of the ICC in the investigation, trial and prosecution of crimes against humanity.
Sadat, (2018) of the view that the transformative change taken place in ICC is not sufficient to deal with the atrocious nature of terrorism leading to constantly threatens the lives and properties of members of the international community.
Although there has been a lot of work related to ICC as an organization and its different aspects, but there is no comprehensive study on ICC’s that to what extent the change and adaptation of its roles and functions since its formation in 2012 has changed the ICC as an international organisation. This study is an attempt to fill up this gap.
 
Conclusion
      The study showcases that the changes and adaptations in the ICC were caused by internal and external factors. And successful transformation and adaptation process has taken place within the structure of ICC as an international organisation in curbing the crimes.
 
 
 
 
 
 
 
 
 
 
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