Amid US Attacks, Time to Reinvigorate the ICC  

At a time when “multilateralism” is a bad word, perhaps no institution is more scorned than the International Criminal Court (ICC), whose global ambitions, legal justifications and potentially coercive powers all provoke the ire of illiberal populists. Just last week, U.S. Secretary of State Mike Pompeo doubled down on previous Trump administration threats to take “real action to stop rogue international courts, like the International Criminal Court, from trampling on our sovereignty.”

This rhetoric is as charged as it is meritless. The ICC, established by the Rome Statute, acts only when states are unable or unwilling to do so. Largely fueling the Trump administration’s current concerns about the Court is Afghanistan, where the ICC is examining allegations of torture by CIA officers and U.S. troops, largely because three successive U.S. administrations have failed to conduct effective investigations and prosecutions of those responsible for custodial abuses.

All of which makes it more disappointing how ill-equipped the Court and its defenders are to respond to today’s attacks.

For years, ICC member states – which currently number 123 – have foolishly scrimped on finances. To be sure, the roughly €144 million spent in 2018 is real money. But compared with the amounts governments regularly spend on problems the ICC is designed to prevent – war and peacekeeping – it’s a pittance. For example, the United Nations has spent over $2 billion on peacekeeping in the Central African Republic, where the ICC Office of the Prosecutor has two open investigations.

Members of the Court’s Assembly of States Parties (ASP) have lost sight of long-term goals. Calls for a “zero-growth” budget, which continued this year, have mired diplomats in months-long debates over tiny sums. As a result of such penny-pinching, the team of ICC investigators spread over existing investigations in 10  countries is smaller than in many national prosecution offices. And it shows: in the limited number of specific charges brought before the Court after an investigation is launched; in the failure to date to recover significant sums of stolen assets associated with Rome Statute crimes; in the Court’s inability to deal with witness intimidation and tampering, which have undermined its cases; and in the Court’s overall results, with just three convictions for Rome Statute crimes in 15 years of operation.

Nor, with some notable exceptions, has the Court helped itself. This year’s acquittal of Jean-Pierre Bemba, former Congolese vice president, after having spent a decade in pre-trial detention, caused concern less for the result (not every trial can or should lead to conviction) than for the faltering quality of some of the underlying judicial opinions.

The Rome Statute’s novel promise of victim participation has been undermined by a narrow approach shaped by a courtroom perspective, with limited abilities to invest in field outreach and public communication. This has left many members of affected communities unaware of what, if anything, the Court is doing.

Some preliminary examinations have dragged on for too long, feeding perceptions (most pronounced in the cases of Afghanistan, which lasted over 10 years, and Palestine, which is at almost four years and running) that fears of political blowback are causing decision-makers to delay. In other cases, it is not clear that the Office of the Prosecutor has the ability to take on new situation countries, which would require new language experts and dedicated staff to fully investigate and prosecute.

Perhaps most puzzling, a number of the Court’s judges, who are paid very well, have filed a formal complaint with the International Labor Organization arguing that they should be paid still more. Whatever the merits, the optics of such an action at a time when the Court is under assault, and key functions are under-funded, have provoked concern about its leadership’s priorities.

To be sure, there have also been some bright spots. Earlier this year, judges found a novel, legally supported basis for asserting jurisdiction over the forced deportation of almost a million Rohingya from Myanmar to Bangladesh. And last month, as questions were emerging about how to fill its courtrooms in the future, the ICC secured custody over a former militia leader accused of alleged atrocities in the Central African Republic (CAR). A second CAR militia leader was arrested on Wednesday in France on a warrant issued by the Court on charges of crimes against humanity and war crimes. Notwithstanding these developments, the atmosphere at this past week’s annual gathering of states parties was gloomy.

What will it take to reinvigorate an institution that remains essential in a world spinning out of control? Most immediately, a united and robust political front is required to stand firm in the face of what will surely be more outbursts from the U.S. and other opponents. Other remedies will take time, such as more consistent state cooperation on individual cases. Finally, the ASP must commit to a more realistic budget that is commensurate with the global need for justice.

Far and away the most important question on the agenda in the coming two years is the selection of the next Prosecutor to succeed Fatou Bensouda, whose nine-year term will expire in mid-2021. The stakes are high. Given the nature of the criminal process, the ICC Prosecutor is the most significant actor in driving the Court’s agenda. But states are only beginning to grapple with the task of identifying an appropriate successor.

By early next year, the Court’s governing body should establish a committee of independent experts to publish criteria, undertake recruitment, and begin to vet candidates in a transparent process that yields the most qualified candidate. It would be all too easy for the voting to devolve into petty tradeoffs of politics and geography. For the sake of an institution at once so vital and so fragile, we must demand better. 

About the Author(s)

James A. Goldston

Executive director of the Open Society Justice Initiative; previously served as coordinator of prosecutions and senior trial attorney in the Office of the Prosecutor at the International Criminal Court. Follow him on Twitter (@JamesAGoldston).