Is the ICC Making a Difference?

Global criminal justice is hardly an abstract concept. Just ask Radko Mladic, who was just found guilty of genocide, war crimes, and crimes against humanity by the International Criminal Tribunal for the former Yugoslavia and sentenced to life in prison. Or ask former Liberian President Charles Taylor, or former Khmer Rouge leaders Khieu Samphan and Nuon Chea, among others. Even so, gaps in accountability for egregious international crimes persist in many conflict situations around the world, such as in Syria, Myanmar, South Sudan, and elsewhere. In the face of these difficulties, critics of the International Criminal Court (ICC) have questioned its value, with some calling it “useless,” or worse, and saying it has little to show for its efforts.

Are such critiques fair? The ICC faces a number of significant challenges, to be sure. These include institutional capacity challenges: inability to secure suspects subject to arrest warrants in a number of situations; resource constraints that limit the Court’s ability to do its work; push back and non-cooperation by some states; and difficulties of witness protection, to name a few. The Court also struggles with a gap between expectations of those seeking justice and what it realistically can deliver in light of limitations on its jurisdiction and capacity. It also faces sharp critiques and a fraught relationship with several African governments, even as many other African states strongly support the ICC and civil society and victims groups on the continent look to it for justice. And like any institution, the ICC deserves thoughtful and rigorous scrutiny.

Yet, as I’ll argue here, the ICC is actually having a range of important impacts, which are also broadly in sync with longstanding American interests. I’ll briefly discuss the four most consequential impacts below (and more fully in a forthcoming article). The United States should keep each of them in mind as it navigates the current challenging moment in its interaction with the ICC. 

Building a Track Record of Justice for Atrocity Crimes

First and most fundamental, the ICC is bringing people to justice for crimes within its jurisdiction. A successful record of investigations and convictions – through fair and credible processes – is crucial if the Court is to help end impunity and contribute to prevention of genocide, war crimes, and crimes against humanity – indeed, to achieve a measure of justice for the victims.

Although the ICC got off to a slow start, and has completed a relatively small number of trials, it’s been building a significant track record over time. The Court’s outcomes include: Thomas Lubanga’s conviction for the war crimes of enlisting and conscripting children under the age of 15 and using them to participate actively in hostilities in the Democratic Republic of the Congo (DRC); Germain Katanga’s conviction for war crimes of murder and attacking a civilian population in the Ituri district of the DRC; Jean-Pierre Bemba’s guilty verdict for crimes against humanity and war crimes, including murder and rape, in the Central African Republic. This was the ICC’s first conviction under command responsibility, and the first for sexual and gender-based crimes. In the fall of 2016, Al Mahdi, was convicted after pleading guilty to the war crime of intentionally directing attacks against historic monuments and buildings dedicated to religion in Timbuktu, Mali.

In addition to these guilty verdicts for atrocity crimes, five more defendants in a Central African Republic case were found guilty of obstruction of justice in October 2016, underscoring the importance of effective action against efforts to obstruct justice and undercut the integrity of ICC proceedings. ICC judges have also upheld an acquittal and decided not to confirm charges in some cases, as one would expect from a court that scrutinizes and weighs the evidence presented in order to determine whether the prosecution has met its burden.

Furthermore, a number of important trials are underway. These include the trial of Laurent Gbagbo and Charles Ble Goude charged with crimes against humanity during the post-election violence in Côte d’Ivoire; that of Bosco Ntaganda charged with war crimes and crimes against humanity in the Ituri region of the DRC, including murder, rape and sexual slavery; and that of Lord’s Resistance Army commander Dominic Ongwen, charged with war crimes including conscription and use of child soldiers and crimes against humanity including murder, sexual slavery, rape, and forced marriage.

The ICC also engages with directly affected communities and victims, many of whom participate and assist the Court in important ways. Genuinely listening to the concerns and aspirations of victims and their communities, and explaining forthrightly both what the Court can and can’t do, is a crucially important and challenging part of the Court’s work to build a track record of justice. And certainly more can be done to support and strengthen this essential work.

The ICC has experienced notable setbacks as well, including a lack of cooperation and witness intimidation that impeded the Court’s ability to effectively investigate and prosecute. Furthermore, whether the ICC can elicit sufficient access and cooperation going forward will be a major issue. But even in the face of these and other challenges, the ICC has been building a significant track record to date.

The U.S., moreover, has publicly affirmed its strong support for each of the ICC’s convictions thus far. These judgments hold individuals to account for violations of legal norms long supported by the U.S. – including convictions for the war crime of forced recruitment and use of child soldiers; for sexual and gender-based crimes; for destruction of religious and historical sites; and for deliberate targeting of civilian populations. Indeed, many of these offenses are also crimes in the U.S. penal code, including recruitment or use of child soldiers, war crimes, genocide, and torture.

Catalyzing Domestic Accountability Processes

Second, the ICC is also having a positive impact by helping to catalyze domestic legal action in pursuit of justice and accountability for atrocity crimes. This intended effect is built into the Rome Statute: By giving primacy to genuine national processes, the ICC’s complementarity principle reinforces efforts to encourage and support meaningful domestic capacity for justice.

Complementarity can be conceptualized and assessed in a number of different ways. The ICC may catalyze a defensive response that leads states to take credible domestic action to avoid the risk of ICC prosecution. There is also “positive” or “proactive” complementarity, which involves the ICC working to actively encourage and even assist domestic accountability efforts. Examples of this include the Office of the Prosecutor’s (OTP) work to assist Guinea in bringing domestic prosecutions for the 2009 stadium massacre and aftermath, including the widespread sexual and gender-based crimes. Another example is in the Central African Republic (CAR), where there is cooperation and a division of labor between the ICC and national authorities. And the CAR government, with international assistance, is setting up the Special Criminal Court, a domestically based hybrid court to try atrocity crimes. This is an initiative that will include capacity-building in investigation, witness protection, and adjudication, among other areas, hopefully with some spillover effects for the country’s domestic justice system more broadly.

Through its Preliminary Examinations that is, the OTP’s initial examinations into a number of potential situations, in which crimes within the jurisdiction of the Court may have been committed, the ICC is also helping to catalyze domestic accountability. Examples include Colombia, where the ICC’s ongoing scrutiny since 2004 helped to encourage inclusion of justice provisions in the peace agreement, and, as mentioned earlier, in Guinea. The OTP views encouragement of genuine national proceedings as “one of the most cost-effective ways for the Office to fulfill the Court’s mission.

The ICC’s impact in encouraging domestic accountability for atrocity crimes is consistent with the longstanding, bipartisan U.S. focus on the primacy of national efforts. It is an impact the United States should continue to actively support, including through assistance to credible national and hybrid courts that together can help to reinforce the growing expectation of justice and accountability for atrocity crimes.

Empowering Civil Society Advocacy for Justice

Third, the ICC is helping to empower civil society justice advocates. Both as a galvanizing symbol and as a practical convener, the ICC is a focal point for civil society groups seeking justice for atrocity crimes. The Annual ICC Assembly of States Parties (ASP) brings together governments, as well as a large, diverse network of civil society organizations and justice advocates from around the world. This year’s ASP is taking place in New York City right now.  Each year hallway tables overflow with reports and documentation of atrocities crying out for redress. Side events at the annual ASP focus attention on urgent justice issues of the day: documenting atrocities in Syria; building national capacity to prosecute atrocity crimes; reparative justice for victims; Africa and the ICC, to name just a few. These discussions bring together civil society justice advocates, government officials, and scholars from countries around the world, providing a uniquely valuable forum for engagement – as well as access to key government decision-makers.

Through its very visible work, the ICC is helping to change the terms of discussion about justice for atrocity crimes by reinforcing a baseline presumption in favor of accountability. This presumption in favor of accountability for genocide, war crimes, and crimes against humanity puts the burden on states in the first instance to take action to prevent or punish these offenses, and to explain themselves if they do not. And both the norms in the Rome Statute and the institutional role of the ICC give civil society actors in ICC states parties a basis to advocate for justice within their own societies, as political scientists have documented.

Indeed, public demand for justice in response to atrocity crimes is becoming an increasingly central dynamic in global criminal justice. The work of the ICC, coupled with that of the other international and hybrid courts, has helped reinforce that the victims and survivors of egregious atrocities have experienced international crimes and are deserving of justice. Victim-driven demand for justice, supported by local and international civil society groups, is generating pressure to find or create forums for justice even when the ICC itself is not available, as, for instance, in the case of the hybrid court in Senegal that held Chadian dictator Hissene Habre to account, and the UN-supported efforts to document and develop case files for atrocity crimes in Syria. Understanding, and constructively supporting, the catalyzing effects of public demand for justice for atrocity crimes will be increasingly important in the years ahead.

The ICC’s empowerment of civil society advocates for justice – including expanding the prospects for domestic advocacy in many countries – is consistent with longstanding U.S. support for civil society human rights defenders. Empowering domestic reformers who work for justice, human rights, and improved governance within their countries is consistent with Bush administration efforts to advance democracy and good governance, as well as Obama administration work to ensure civic space for civil society advocates for justice and human rights in countries around the world.

Strengthening Prospects for Deterrence and Prevention of Atrocity Crimes

Fourth and finally, it’s worth asking: Can the ICC help to deter and prevent potentially horrific acts? Admittedly, unique difficulties confront efforts to deter the serious international crimes subject to the jurisdiction of the ICC, which typically occur in extraordinarily violent conflict situations. One has only to consider the devastating violence in parts of the Democratic Republic of the Congo or the Central African Republic to realize the enormity of the challenge. The extent of the Court’s impact is difficult to assess, and depends on many factors, including the dynamics of particular conflicts and the motivations of specific armed groups. The ICC’s dependence upon states for cooperation and resources also affects its potential to influence the decision-making of armed actors, particularly when it is unable to investigate or effectively threaten accountability in many conflict situations in which it has jurisdiction.

So, it remains too early to say confidently what impact the Court is or will have in deterring atrocity crimes. But both anecdotal and empirical evidence suggests that some people are alive today because of a deterrent impact of the ICC. A brave Catholic nun, named Sister Josephine, helped save the lives of Muslims seeking shelter in her church’s compound in the Central African Republic by invoking the threat of ICC prosecution against hostile militia fighters. Beyond anecdotes, leading political scientists have presented empirical data suggesting that some state actors and certain rebel groups can be deterred through both prosecution and broader “social deterrence,” including the Court’s ability to mobilize and reinforce a range of social pressures against atrocities – with the important caveat that actors who care about their domestic or international legitimacy are “much more likely to be deterred by the possibility of ICC prosecution than those who [do] not.”

Other scholars are more skeptical about the ICC’s capacity to deter potential perpetrators. And certainly some alleged perpetrators within the ICC’s jurisdiction do not seem fazed at all (e.g. Boko Haram). But conveying clearly and widely information about the Court’s cases, about fundamental rules of international humanitarian law (IHL), and about command responsibility, can at least help to ensure that armed groups are more fully aware of their potential exposure and of the fundamental rules by which their conduct would be assessed. And documenting crimes and gathering evidence puts them on notice that they may well someday face justice, plus it builds a foundation for future prosecution.

The ICC’s potential contribution to deterrence and prevention of atrocity crimes is still evolving and warrants further study. But certainly credible, successful prosecutions before the ICC for atrocity crimes – together with the encouragement of genuine national accountability processes – are part of building an architecture of accountability that over time can help strengthen the prospects for deterrence and prevention of atrocity crimes in at least some situations. Understanding and strengthening such impacts is consistent with U.S. efforts across administrations to inculcate the importance of IHL compliance.

Conclusion

Overall, while the ICC is traversing very challenging terrain, the positive effects that it is beginning to have – developing a track record of justice; catalyzing domestic accountability processes; empowering civil society advocates for justice; and potentially contributing to deterrence and prevention of atrocity crimes – are all impacts that the United States historically has supported and should continue to support. And, diplomatically, the United States will be better able to protect U.S. interests and U.S. personnel through astute, constructive engagement with the ICC, advancing the strongest and most credible arguments possible. Engagement is a more effective strategy than suspending relations or reacting with overt hostility.

No doubt there will be stormy waters ahead for the U.S. and the ICC, but the United States has a huge stake in navigating those waters carefully, thoughtfully, and consistently with our longstanding commitments both to advance justice and accountability and to protect our personnel. 

About the Author(s)

Jane Stromseth

Professor of Law at Georgetown University, Former Deputy to the U.S. Ambassador-at-Large for War Crimes Issues in the Office of Global Criminal Justice at the U.S. Department of State (2013-2015)