The International Criminal Court (ICC), established in 2002, was created on the basis of becoming a permanent institution for the trial of individuals who have committed the world’s most serious crimes, including genocide, war crimes and crimes against humanity. The court was founded on a basic principle that all humans are of a shared origin and heritage and that a universal set of fundamental standards should be acknowledged and protected with regards to human rights. Despite its noble aspirations, the ICC comes up against continued scrutiny and criticism over its operational activities, effectiveness and focus on Africa. Several of these criticisms have led to a potentially existential problem for the ICC; a few member states, notably African nations such as South Africa, Gambia and Burundi, have renounced membership of the ICC—or are threatening to. During such a crisis, it is important to reflect on the reputation and common perspectives of such an organisation in order to construct a critical analysis of where systemic flaws may lie and to concoct a recipe for reform. The US and other superpowers including China and Russia, have historically and fundamentally opposed the ICC for numerous reasons – thereby weakening the court on a fundamental moral basis. Reviewing statistical data of prosecutions, cases, arrests and investigations is vital to identifying flaws, diagnosing disparity and suggesting reformative actions. The future of the ICC is in question and, without change, the court could face existential problems. Questions of sovereignty, cooperation, adequacy and equality have engulfed the ICC in 2016.
As of November 2016 there are ten situations that the ICC is investigating, nine of which are looking into crimes committed by individuals from African nations (and the tenth being from Georgia). To offer a snapshot of the ICC to date they have publicly indicted 39 people, issued arrest warrants for 31, have on-going proceedings against 22, nine are officially fugitives, four are under arrest (but not in the court’s custody) and, finally, they have seven individuals detained. All investigations are under the Rome Statute’s (the ICC’s establishing treaty, adopted on July 17 1998 and entered into force July 1 2002) three defining crimes – war crimes, genocide and crimes against humanity. Two questions could intuitively come to mind after realising those statistics of the ICC in 2016. Firstly, why are so many investigations based in African nations when the name of the organisation is the International Criminal Court and not the African Criminal Court; secondly, do seven arrests in 14 years show adequate capabilities and competencies as a court of justice?
There are many arguments as to why such as high proportion of investigations focus on cases in Africa. The ICC combats accusations of ‘picking on Africa’ as follows: the ICC encourages countries to voluntarily come forward and refer a case to the court, an aspect out of the court’s control. Of the 1700 communications they have received from 139 countries, 80 percent of these were outside their jurisdiction (not cases of genocide, crimes against humanity or war crimes). As such, it appears coincidental that most of the cases that came to the attention of the ICC prosecutors, and also fell under their jurisdiction, happened to be in African nations. An argument made by Olympia Bekou and Sangeeta Shah in the Human Rights Law Review states that, “strengthening domestic prosecutions so that the ICC does not have to intervene should be the ultimate goal of every state”, suggesting the weaker domestic judicial systems of African nations has led them to approach the ICC for support.
Other primary issues the ICC faces include the number of convictions made by the court, the cooperation from member states to the Rome Statute, the future relationship between the African Union and the ICC, and the non-implementation of pending arrests. A key pillar of the ICC lies in the active participation of ratified states, notably around the lack of an ICC police force, as they rely entirely on national police forces to arrest the indicted. A key example of absence of cooperation is in the case of Sudan’s president, President Omar Al-Bashir. Two arrest warrants have been issued to the president, one in March 2009 and a second in July 2010, over accusations of all three crimes under the court’s jurisdiction, genocide, war crimes and crimes against humanity in Darfur. He is since still at large (and in power) due to lack of cooperation from Chad, Kenya and South Africa. In June 2015, South Africa’s president, Jacob Zuma, along with other South African ministers, plotted and executed an escape for Al-Bashir from South Africa when the high court had ordered him to stay in the country, pending a decision to arrest (or not) following an ICC warrant. Obed Balep, head of the ANC’s (African National Congress, ruling party in South Africa as of early 2017) international relations sub-committee and South Africa’s deputy minister of Cooperative Governance and Traditional Affairs claimed they were choosing between law and politics and, in this instance, chose politics. Deputy Minister Balep also claimed “We would have been seen as lackeys of the West. We had to choose between the unity of Africa and the ICC and we chose Africa,” highlighting further discontent with the court’s operations. This Omar Al-Bashir situation is, therefore, still in its pre-trial stage since “the ICC does not try individuals unless they are present in the courtroom.” It takes only minimal examination to uncover examples and evidence of clear systemic failings in ICC operations.
In the United States, publicly voiced interests towards the ICC have changed over time, often to suit their circumstances (whether they feel Americans will be political prosecuted or not) and dependent on the administration, “The United States has had and will continue to have a compelling interest in the establishment of a permanent international criminal court”, wrote David J. Scheffer (American lawyer and diplomat) in his 1999 journal, The American Journal of International Law. It would be logical to conclude that in 1999 this was, most likely, correct. The general US perception of the ICC during the late 1990s and right up to 2002 was that of consent and backing, a claim reinforced by US rhetoric, namely from Bill Clinton, US president from 1993 to 2001. Scheffer goes on to claim, “the question for the Clinton administration has never been whether there should be an international criminal court, but rather what kind of court it should be”. Again, this may have been true at the time of publication of Scheffers’ book, but is apparently a bygone stance for the US in 2017, who, along with Russia, have refused to ratify the Rome Statute, claiming issues over sovereignty.
More specifically, the Bush administration fell under the belief that the ICC would be used to prosecute American citizens and soldiers, “We will take the actions necessary to ensure that our efforts to meet our global security commitments and protect Americans are not impaired by the potential for investigations, inquiry, or prosecution by the International Criminal Court (ICC), whose jurisdiction does not extend to Americans and which we do not accept”. The fear of prosecution of US military and citizens was combatted by the Bush administration with the 2002 American Service-Members Protection Act, enacted just one month after the inauguration of the ICC. This act and point-of-view adopted by many US administrations comes with controversy due to past interventions and stances on liberal internationalism. An example of this is the 2003 Iraq operation to remove Saddam Hussein from power for, among other reasons, “outrageous human rights abuses”. It is therefore justified that some international actors sense some hypocrisy, American exceptionalism and lack of consistency on this disposition.
The lack of US backing for the court is likely to weaken its effect and efficiency on the international stage since many other liberal democracies align their thinking with US administrations. Tempting the US into ratification and acceptance of the jurisdiction of the ICC would strengthen the position of the organisation, but questions of the likelihood of this are substantially debated. In a US Department of State statement, in 2010, they appear to have been making positive moves towards the ICC with the party being present at the ICC on an observatory level and assisting State Parties in cases with direct US interest. This highlights some intent to cooperate with the ICC under the Obama administration, which is a stark contrast to that of the Bush administration that pressed states to conclude bilateral immunity agreements (BIAs), guaranteeing immunity from the court’s jurisdiction. The question of how to create an environment whereby the US would ratify the Rome Statute is open-ended and difficult to answer; imagining a scenario in which the US can uphold their bilateral agreements and be an operating member of the ICC is both directly contradictory and practically improbable. This environment can be difficult to achieve since nations in support of the sovereignty of nations, along with possessing a pro-intervention international stance, find it difficult to reconcile both norms in cases of humanitarian crisis—often leading to an inconsistent and hypocritical orientation.
Contradictory to the negative implications of this article, the ICC does deserve some praise, i.e. for its moral foundations, potential as an effective intergovernmental organisation and its impact to date. Taking the court’s comparatively short history into consideration, it has in fact had quite a remarkable impact on the international forum and is having success in indicting and arresting individuals. One notable conviction was that of Jean-Pierre Bemba, a former vice-president of the Democratic Republic of Congo and leader of the Mouvement de Libération du Congo (MLC, Congolese Liberation Movement). In March 2016, Bemba was sentenced to 18 years in prison for five accounts of war crimes and crimes against humanity. These crimes were that of rape and pillaging committed by Bemba’s troops, between October 2002 and March 2003, in an armed conflict in the Central African Republic (CAR). This was deemed a major success for the court for many reasons; firstly, he was the highest ranking official to be brought to justice to date, showing proficiency in the processes and influence of the ICC; secondly, the nature of the crimes highlighted that rape could be perceived as a legitimate stratagem in war, making the case a significant success for advocates against sexual and gender-based crimes. This indictment has been promoted as a “much needed boost” following many setbacks in other recent court cases.
Initial success for the court came in the form of the Rome Statute passing with a notable victory. As a result of a diplomatic conference in Rome on 17 July 1998, 120 of 160 governments present voted in favour of the treaty—it highlighted a certain necessity, especially among smaller states with weaker judicial systems. A foundational success came in the form of the court establishing itself as a complementary institution, maintaining the domestic jurisdiction of the individual states to prosecute their own criminals who may call on the ICC to assist if necessary. It is this complementary fundament that appeased many states reluctant to ratify the Rome Statute and thereby strengthened the institution through sheer numbers. In terms of legal proceedings, judges decide the fate of the accused, instead of a jury. And, lastly, the court has shown flexibility in establishing itself and taking on broad criticism by adopting legislation and semantics from the UN Security Council; a vital characteristic of such an unestablished international institution that relies on state legitimization.
Since the court’s inception, it had never lost a single member state until losing three in 2016. South Africa, Burundi and Gambia all pulled out of the treaty on the basis of ‘picking on Africa’. While Gambia’s new president, Adama Barrow, is looking to reverse some of former president Yahya Jammeh’s isolationist policies – including reversing withdrawal from the ICC – the court’s solidarity remains tenuous. With fear of a domino effect, the court’s chief prosecutor, Fatou Bensouda stated at a conference in The Hague, “I don’t think we should feel we are defeated and that the court will close tomorrow. No, the court will have its challenges. We will counter those challenges. We will confront them and move forward.” Acknowledgement of flaws is essential to reform.
While it is apparent there are issues to overcome for the ICC, strong foundations give it the potential to form into an even more capable and forceful institution with positive effects on war crimes. In the future the US will continue to traverse the political and philosophical minefield over sovereignty vs. interventionism, potentially leading to US ratification of the Rome Statute and a subsequent strengthening of the court. This commitment to multilateralism and international justice, however, seems unlikely given the recent election of President Donald Trump. The court will need to diversify their focus to other continents (without diminishing their judicial obligations in Africa) and will need to reform some multilateral agreements over enforcement of prosecutions and how to bring the indicted to justice—achieved through strengthening existing agreements and the coordination with national police forces. Incrementally, the court should aim to stop negative rhetoric in the media by halting the withdrawal of member states and recognising internal operational failings, so not to create a snowball effect and to appease any hostility from member states. It should also strive to act as a preventative measure. To do this the ICC needs to show it can be an effective and permanent institution with clear standards, goals and success stories of convicting war criminals in different parts of the world. With these considerable hurdles tackled, the court’s future could change from possible gloom to becoming a fruitful and effective pillar of the international community.
Luke Pierce holds a BA in International Relations from Nottingham Trent University. His work focuses on news and analysis, both written and film, with focuses on conflict, international development, crisis and effectiveness of intergovernmental organisations. Luke aims to analyse global issues through written work and through educational documentary film.
Cover Image ‘International Criminal Court Building’ via Global Panorama under Creative Commons Attribution-Share Alike 3.0 Unported | Wikimedia Commons
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