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Over the course of the 19th and 20th century, tensions and rival powers had prevailed in the pursuit of their expansionist agendas. Most States focused on bolstering economic and political control over other state actors which resulted in atrocities, brutality, and aggression.

During World War 1, as many as 8.5 million soldiers and 13 million people died due to constant warfare among and between countries (Reperes, 2018).The use of new technological weapons such as aerial combat and mustard gas has enabled mass destruction both in the physical, emotional well-being of innocent citizens. Similarly, the sovereignty and economic growth of States were hindered due to disintegration of local control and emergence of external abuses.

Consequently, World War 2 occurred which also harnessed numerous cases of genocide, abusive practices, and continuous chaos. Examples of such were the mass war time rape and ethnic cleaning in the former Yugoslavia and in Rwanda. An estimated 50-55 million civilian deaths and 21-25 million were reported (Wilson, 2006). As an aftermath, it exacerbated poor conditions in localized settings such as destroyed railroads, scarce resources, and personal traumatic experiences. The growing number of crimes has left the global state in devastation and disorder.

With the implications of casualties, economic loss, and continuous human rights abuses, the international status remained disputed. During these unprecedented times, a multitude of institutions were alarmed because of the unaccounted and unpunished crimes committed in the international arena. Hence, it became a matter of discourse that highlighted ethical considerations, accountability, and law enforcement, thus, aiming for better conditions globally.

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During the 1870s, after the damage caused by the Franco-Prussian War, Gustav Moynier, one of the founders of the International Committee of the Red Cross, came up with an idea to establish a permanent international court.

After the First World War, in 1919, Article 227 of the Treaty of Versailles included a proposition to establish an international court to put the Kaiser and German war criminals to trial.

The Moscow Declaration of 1943 and the Postdam Declaration of 1945 were signed by the Allies to punish the Japanese and Germans for their war crimes during World War II based on the Nuremberg and Tokyo tribunals.

In 1948, the United Nations General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide. The establishment of the international judicial organ then, was explored. However, because of the Cold War, any development towards an international criminal court was halted.

After several humanitarian issues of various states concerning armed conflicts, genocide, civil wars, and the illegal drug trade, Trinidad and Tobago revived the idea of establishing an international criminal court. The United Nations General Assembly and the International Law Commission then resumed to draft a statute.

By 1995, the drafting of the statute for an international criminal court was finished. This was presented to the United Nations General Assembly, allowing an Ad Hoc Committee to establish an International Criminal Court.

After several conferences by various states to ratify the Rome Statute and conventions to establish an international criminal court, the Rome Statute was finally implemented in 2002. This allows for the world's first and only permanent international criminal court to investigate and prosecute genocide, crimes against humanity, war crimes, and crimes of aggression.

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The conflicts witnessed by the world with its extreme violence and impunity, impacted the relationships between states in the international system. The atrocities experienced in these conflicts has eventually led to the establishment of the ICC for the purpose of investigating and prosecuting individuals accused of genocide, war crimes, and crimes against humanity. In that sense, it was created as the states collectively understood the graveness of the crimes that are being committed worldwide. In solution to this, they created an institution that would be used to uphold regulative norms and standards within the international community that would hold individuals accountable regardless of power and status within their state. (International Criminal Court, 2020)

To put it on a simpler note, ICC as a political institution in the international system was formed and derived from the interaction of the states, from the said conflict to post-conflict period mentioned above, as a symbolism of their collective agreement on the idea of preventing the culture of violence and impunity within and between states.

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From a constructivist point of view, the evolution of the International Criminal Court (ICC) can be interpreted through the actors involved and the actions that form its development. In constructivism, the role of ideas, norms, and sociability is being emphasized in order to shape international institutions. Here are the actors and processes involved:

1. States: They are considered primary actors in foreign affairs, and their mutual support for the initiation of the International Criminal Court (ICC) was vital. The ICC was entrenched by the Rome Statute in 1998, which took place during the Rome Conference, wherein the states participated in the negotiations and agreement of the court’s framework. Constructivists state that the unfolding of norms with regard to accountability for international crimes plays a critical role in altering the states’ decisions in establishing the ICC.

2. Non-Government Organizations (NGOs): In establishing the ICC, the NGOs, specifically human rights organizations, played a vital role, as they helped in molding the discussion on the responsibility over international crimes and the impact of the norms that steer the actions of a state. A safe space was built for the creation of the ICC because of their notable efforts.

3. International Organizations: The United Nations, as an international organization, provides a platform for various nations to hold deliberations and negotiate with the approval of the ICC. Its participation in facilitating the meeting between states was significant in the creation of the court.

4. Individuals: Individuals, such as legal scholars, diplomats, and advocates played a significant role in the ICC’s creation by urging the concept of an international criminal court, helping in the drafting of legal documents, and building alliances with other countries.

Processes:

States and International Organizations immerse themselves in the processes of norm socialization, wherein they embody the justice standards of international crimes. It led to a wider acknowledgment of the ICC as a viable institution for dealing with injustices.

Constructivism emphasizes the importance of interplay and discussions over international institutions. In various ways, such as diplomatic negotiations among states and non-state actors, it is significant as it helps in forming the design and international obligation of the International Criminal Court (ICC).

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Three Ways the ICC Can Exercise Jurisdiction

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Three Ways the ICC Can Exercise Jurisdiction

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1. State Party Referral: any State Party (a country that ratified the Rome Statutrefers alleged atrocity crime to the ICC Prosecutor to request for investigation

2. UN Security Council Referral - The UN Security Council can refer alleged crime by passing a resolution authorized by the UN Charter.

The UN Security Council, the most powerful body of the UN, is responsible for the maintenance of international peace and security

Five Permanent Members: China, France, Russia, UK, US

1. Propio Motu Investigation - Latin for “one’s own initiative,” the ICC Prosecutor initiates preliminary investigation upon approval from judges

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Nuremberg and Tokyo Tribunals: the first international tribunals established by the Allied Powers after WW II to prosecute prolific officials and major war criminals.

International Criminal Tribunal for the Former Yugoslavia: was established by the UN to prosecute the war crimes committed during the 1990s Yugoslav Wars (series of ethnic conflicts) in the Balkan region.

International Criminal Tribunal for Rwanda: was established by the UN Security Council Resolution 955 to address grave violations of international humanitarian and human rights law during the 1994 genocide against the Tutsi ethnic minority group in Rwanda.

Constructivist argument: A state can have multiple identities, socially constructed through interactions. In the case of Rwanda, the genocide stemmed from clashing identities. Using the constructivist lens, Froh (2010) asserts that the divisiveness and polarization of ethnicities was a product of the distrust nurtured by their German and Belgian colonizers (p.51).

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Crimes against humanity are also under the jurisdiction of the International Criminal Court. This act of harm is inflicted through a large-scale attack against any whole population. According to the Rome Statute, violations of this crime include murder, rape, imprisonment, enforced disappearances, enslavement, and crimes specifically against women and children such as sexual slavery, torture, apartheid and deportation.

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War crimes are violations under the Geneva conventions wherein children are exploited by making them child soldiers. the torture or killing of civilians and prisoners of war, targeting hospitals, and other historical, religious, educational, and art-related sites in attacks.

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According to the Rome Statute, this crime is enacted by endangering or inflicting damage to a state's sovereignty, integrity, or independence.

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Genocide is the act of inflicting damage to a certain group of people by deliberately causing mental or physical harm, and limiting their freedom negatively affecting their quality of life.

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[APPLICATION] Crimes Against Humanity: Duterte’s “War on Drugs” (Magramo, 2023)

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[APPLICATION] Crimes Against Humanity: Duterte’s “War on Drugs” (Magramo, 2023)

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As soon as he assumed the presidency, Duterte launched a bloody crackdown on illegal drugs, granting the police the license to “shoot to kill.” According to Human Rights Watch, the state-sanctioned drug campaign has claimed over 12,000 lives, mainly targeting the urban poor.

In analyzing Duterte’s case, the ICC’s exercise of jurisdiction shall only proceed in the absence of genuine national court proceedings. Constructivism’s concepts are present in understanding the legitimacy of the “nanlalaban” and the Philippines’ stance of either “avoiding” or being “unable.”

Regardless of the Philippines’ insistence on deflecting the ICC, individuals are linked through their sociopolitical discourses about the administration’s war on drugs. Social interactions of the Filipino masa, especially the urban poor, with the police are considered by means of specification and delineation of their shared construct of injustice and violence. Authorities may consider their actions legitimate as they claim it is to reduce drugs in the country; however, Filipinos assert that they are planting bullets on victims’ bodies,and experience delayed-to-no court hearings. Human actors engage in social interaction and mutual understanding (norms, ideas, and interests) to seek truth and challenge the validity of claims (Human Rights Watch, 2023).

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Froh, D. (2010). Soft Power, Constructivism and the Rwandan Genocide. University of Regina. https://central.bac-lac.gc.ca/.item?id=MR88566&op=pdf&app=

Library&oclc_number=910774843

Human Rights Watch. (2023). International Criminal Court’s Philippines Investigation. https://www.hrw.org/news/2023/02/13/international-criminal-courts-philippines-investigation

International Criminal Court. (n.d). How the Court works. https://www.icc-cpi.int/about/how-the-court-works#:~:text=States%20Parties%20support%20the%20Court,under%20the%20Rome%20Statute%20system.

International Criminal Court. (2020). Understanding the International Criminal Court Helping build a more just world. https://www.icc-cpi.int/sites/default/files/Publications/understanding-the-icc.pdf

International Criminal Court Project. (n.d.) Evolution of International Criminal Justice. https://www.icc-cpi.int/about/how-the-court-works#:~:text=After%20gathering%20evidence%20and%20identifying,arrest%20warrant%20may%20be%20issued).

Magramo, K. (2023). International Criminal Court rejects Philippine attempt to block drugs war killings probe. CNN Philippines. https://edition.cnn.com/2023/07/18/asia/philippines-icc-war-on-drugs-judgment-intl-hnk/index.html

Wilson, J. (2006). A Brief History of the Cold War. UK London. https://books.google.com.ph/books?hl=en&lr=&id=meCuDwAAQBAJ&oi=fnd&pg=PT9&dq=history+of+cold+war&ots=bn_NCSBYsw&sig=4fTYBMcuoMcl9Qny3ZBjWlKNvC8&redir_esc=y#v=onepage&q=history%20of%20cold%20war&f=false

Reperes. (2018). World War 1 Casualties. https://www.census.gov/history/pdf/reperes112018.pdf

Yigzaw, D. A. (2022). “The Case for Removing the Security Council’s

Powers from the International Criminal Court.” International Criminal Law 1-13.https://brill.com/view/journals/icla/aop/article-10.1163-15718123-bja10143