Difficult Days Ahead for the Int’l Criminal Court

As the International Criminal Court (ICC) closes out a tumultuous year, it faces hard times ahead. Diminishing support for the Court specifically, and international disengagement generally, mean that the Court will have difficulty in these next years advancing its core mission of pursuing accountability for the international crimes of genocide, crimes against humanity and war crimes. After an intense period of development and growth in the field of international criminal law from 1993 to 2016, we may be now entering into something of an Ice Age for the ICC and international criminal law generally. The good news is that even in this difficult period, there is much that the ICC can do to strengthen itself, and there is virtually no chance that the ICC will disappear. It will be poised to continue its work when the world returns to international engagement, as it inevitably will.

First some perspective: In 1993, when the modern international criminal law project was born with the creation of the International Criminal Tribunal for the former Yugoslavia (ICTY), nobody anticipated that the international criminal law project would come as far as it has in these last 23 years. Much of the development came between the end of the Cold War and the beginning of the so-called War on Terror, a time that was particularly conducive to the construction of international institutions to pursue justice for international crimes. After the ICTY, other ad-hoc Tribunals were established for Rwanda, Sierra Leone, East Timor and Cambodia. These courts were not perfect, but they had many successes, including prosecutions of significant military and civilian leaders responsible for atrocities, as well as the development of important principles of international criminal law and procedure.

Then, in 1998, the Rome Treaty was adopted, creating the ICC, and in just four years it received the required 60 ratifications to become operational. Today the Court has 124 States Parties. Even after 9/11, when the war on terror drew attention away from questions of international accountability and, in addition, fractured alliances that had allowed for the creation of the international tribunals, the ICC continued to push forward, receiving support and succeeding beyond the expectations of many. There have been (fair) criticisms of the ICC’s output and performance during its first 16 years to be sure, but it has established itself as a functioning institution with investigations, arrests, trials, convictions, acquittals and appeals. Both States Parties and the UN Security Council have referred cases to it. Overall, the achievements of the last 23 years in the field of international criminal law have been nothing short of astounding, but increasingly the Court will face challenges as Brexit, Donald Trump’s election, and the rise of authoritarian figures in Europe and elsewhere mark a change in the international climate.  

Now for some perspective regarding recent events at the ICC, in particular the announcement of three African countries (South Africa, Burundi and Gambia) that they will withdraw from the Court, and Russia’s statement that it is withdrawing its signature from the Rome Treaty (like the US, Russia signed but never ratified the Treaty). Despite these developments, the ICC is not about to collapse. The announcements did not trigger a mass exodus of African countries, as some feared. In fact, most of the other African members of the ICC have re-affirmed their support for the Court, though a few countries (like Kenya and Namibia) continue to make noises about leaving. Further, Gambia’s new president has announced that he will return Gambia to the ICC, though now a smooth transfer of power in that country may be in jeopardy. In addition, South Africa said at the recent Assembly of States Parties meeting in The Hague that it would engage in dialogue with the Court over the next year before its withdrawal becomes effective, suggesting that there might a path forward to keep South Africa in the Court. Finally, Russia’s move was significant but also largely symbolic; it had never ratified the Rome Statute and was not a State Party to the ICC to begin with.

Nonetheless, the events of the last months – both with regard to the Court specifically and the international atmosphere generally – suggest that the ICC is in for some hard years ahead. Although the Africa departures did not lead to a flood of withdrawals, they have stalled the ICC’s trend towards universality, at least for the moment. From 1998 until 2016, countries continuously and steadily joined the Court, 124 in all, but not a single one left. Some states threatened to leave, and at the African Union summit in July, there was concern that the AU might vote to have all African countries withdraw from the ICC. The threat did not materialize though, largely because several pro-ICC African countries resisted.

Now this trend towards universality has been broken, which only brings into sharper focus one of the principal criticisms of the Court, namely that some countries have submitted themselves to its jurisdiction while others (including many major powers, like the US, Russia, and China) have not. While nobody imagined that absolute universality was imminent, the uninterrupted trend towards that goal helped blunt criticism of the Court’s limited territorial scope and inability to reach massive crimes in non-States Parties, such as Syria. Now that some countries are pulling away from the Court or questioning their membership, it is likely that there will be even more attention paid to the refusal of certain countries to join in the first place. Namibia’s President made the link explicit when he said that his country would remain in the ICC only if the US joined.

Moreover, the withdrawals establish a dangerous precedent. The ICC has been criticized in the past for allowing itself to be deployed by governments against rebel forces (Uganda, DRC, Côte d’Ivoire) through the process of “self-referral.” When the ICC has focused on government actors, the cases have either stalled (Sudan, Libya), or have been met by fierce resistance in the form of non-cooperation and witness interference (Kenya). Now Burundi has provided yet another way for governments targeted by the ICC to resist: withdrawal. Last April, the ICC Prosecutor announced that she was opening a preliminary examination into allegations of crimes committed in Burundi since early 2015, primarily by government forces. A few months later, in October, Burundi became the first country to announce that it was leaving the Court. If governments perceive that there are no diplomatic or political costs to withdrawing from the ICC when it suits their interests, the Court’s ability to investigate government actors will be further undermined. The Philippines may be the next country to follow this path. If the ICC decides to open a preliminary examination there into extrajudicial killings of drug dealers and users, it is virtually certain that President Rodrigo Duterte will follow Burundi’s example and also pull out from the Court.

As it contends with the consequences of these withdrawals, the ICC is also facing challenges with its new investigations and cases. The ICC opened its first investigation outside of Africa last January in Georgia, and it is widely expected to seek authorization soon to open an investigation in Afghanistan. Each will examine alleged crimes committed by Russian and U.S. citizens, respectively, as both Georgia and Afghanistan are States Parties and therefore the Court has jurisdiction over all Rome Treaty crimes committed on their territories, regardless of the citizenship of the perpetrators. In addition, the Court has opened preliminary examinations into alleged crimes committed in the Ukraine and Palestine, which also touch on Russian and U.S. interests, respectively.

Russia has already signaled its displeasure with the ICC by “unsigning” the Rome Statute, and one can only imagine that the Trump administration will be nothing but hostile to the ICC. (Trump is reportedly considering nominating John Bolton to the No. 2 position at the State Department, a man who once described the ICC as “illegitimate” and harmful to U.S. interests). The prospects of success for the Georgia and Afghanistan investigations are thus dim, particularly since the governments in the two countries have not shown themselves to be particularly interested in seeing an ICC inquiry go forward. Expect therefore these investigations to take years, with a very uncertain prospect of anyone from either situation ever facing charges in The Hague. Meanwhile, there is little likelihood that Syria, where massive crimes are indisputably occurring, will be referred anytime soon to the ICC by the UN Security Council. Russia and China have vetoed all proposed resolutions to refer and now even the US will likely not support such a solution.

Aside from Georgia and soon Afghanistan, the Prosecutor has indicated that she will focus next year on alleged crimes in the Central African Republic (for crimes committed in 2012), Darfur, Libya, and Côte d’Ivoire (for crimes allegedly committed by forces of now President Alassane Ouattara during the post-election violence in 2010 to 2011). Because the Central African Republic has cooperated with the ICC’s investigation, the prospects for success there are good, but the other investigations are difficult, to say the least. Although the UN Security Council referred Darfur and Libya to the ICC, it has failed to put pressure on either government to cooperate with the Court or to surrender accused persons, thus undermining the ICC’s investigations. And in Côte d’Ivoire, the Ouattara government may be less than eager to cooperate with an investigation of its own supporters.

When the governments where international crimes occurred do not themselves support prosecutions, other states must step in to lead the way, including by insisting that recalcitrant governments cooperate with justice and accountability mechanisms. But in a world that is increasingly turning towards nationalism and isolationism, there is little hope that states will provide the kind of sustained political, diplomatic and financial support that the ICC requires to succeed. Just last month, the Assembly of States Parties (comprised of the 124 States that are members of the ICC) cut the proposed budget for the Court, failing even to pony up sufficient funds to allow three trials to run simultaneously (even though the new ICC building has three courtrooms). In contrast, at its peak, the International Criminal Tribunal for the former Yugoslavia regularly ran six trials, and sometimes even seven, at the same time.

Ultimately the danger is that the Court will accumulate investigations resulting in relatively few actual cases. Already the Court should be concerned about what is, or rather what is not, in the pipeline. The Court currently has three trials running, one of which will finish in 2018 and the other two in 2019. But it has no cases in the pre-trial stage and the prosecution has sought (at least publicly) arrest warrants in just two cases during the term of the current Prosecutor, who assumed office in June 2012, and both of those cases have now been resolved. Given the lack of new arrests and the challenges facing current investigations, it is increasingly likely that the Court will face trial gaps after the current three trials are completed. If such periods of judicial inactivity are prolonged, they could undermine the Court’s stature internationally (particularly as there continue to be no shortage of atrocities committed around the world).

Although it faces difficult years ahead, there are things the Court can do to strengthen itself and further its mission during this tough period. First, the Court can continue to examine and refine its practices to make them more efficient and effective. Earlier this year, under the direction of President Silvia Fernandez, the judges issued a new practice manual to further enhance the Court’s practices regarding victim participation and disclosure. This work may seem less glamorous than the stuff of arrests and trials, but given the criticisms of delays and inefficiencies at the Court, these procedural refinements will ultimately be essential to the long-term success of the institution. Second, the Court can look for impact even in the smaller cases it pursues. This year the Court brought attention to the crime of destruction of cultural and religious monuments through its prosecution of Ahmad Al-Mahdi in Mali. In September, the Prosecutor issued a policy on case selection and prioritization, which suggested the Office would give attention to cases involving environmental harm. Finally, the Court can continue to look for ways to have an impact beyond the cases that it prosecutes itself. In the last year, the Office of the Prosecutor has begun to explore innovative ways to encourage national prosecutors to further the ICC’s mission through, for example, the domestic prosecution of crimes associated with atrocity crimes, such as arms trafficking, organized crime or money laundering.

One hopes that in time, the world will return to international engagement and an increased commitment to accountability for atrocities. The good news is that when it does, the ICC will still be around, ready to act.

Image: UN Photo/Rick Bajornas

 

About the Author(s)

Alex Whiting

Professor of Practice, Harvard Law School; former federal prosecutor at the Department of Justice and the U.S. Attorney's Office in Boston; served as Investigations Coordinator and Prosecutions Coordinator at the International Criminal Court. Follow him on Twitter (@alexgwhiting).