The trials and tribulations of the ICC

We examine the top 10 issues facing the International Criminal Court today. Do they signify a crisis for international justice, or have sufficient strides been made?
By: /
April 16, 2015
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At nearly 13 years old, the international Criminal Court (ICC) was once heralded as the most articulate realization of an international legal instrument with clout imaginable. It targets impunity and has defined genocide, war crimes and crimes against humanity.

The court aims to prosecute against such crimes of international law and challenges domestic investigations into the rehabilitation stages of post-conflict situations. With latest member Palestine acceding to the Rome Statute in January 2015 (officially receiving membership on April 1) the ICC now has 123 members, and has prosecuted 22 cases across nine “situations.”

Yet it has secured only two convictions and finds itself under more global scrutiny than ever before. Does the criticism leveled against it signify a crisis for the world’s leading mechanism for the international pursuit of justice? We weigh the evidence here by examining the top 10 issues facing the court today.

1. Bias against African leaders

Since its establishment, the court has heard 22 cases and convicted two individuals. All of these have been of African nationals and as multiple investigations are ongoing there, many leaders from the continent have publicly vented their dissatisfaction with this perceived bias. The most recent AU summit saw African leaders discuss withdrawing membership from the court. Attempts to establish an all-African court, which would precede any ICC investigations, have stuttered to a halt despite current AU chair Robert Mugabe’s support. In its defence, ICC spokesperson Fadi El Abdallah emphasized that it is in fact African states themselves that have asked the court to investigate crimes committed in their territories.

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2. Failure to arrest and convict

The recent failure to arrest Sudan leader al-Bashir on the 10 charges of war crimes, genocide and crimes against humanity leveled against him, and the subsequent dropping of the ICC’s pursuit of him, has been viewed as a defeat for the court. This points to the challenge of gaining jurisdiction. For instance, many have cited the need to investigate possible war crimes currently taking place in Syria, however the ICC does not have jurisdiction as Syria is not a state party to the Statute, the Security Council has not asked the ICC to investigate (see section 8), nor has the council asked the Syrian government to cooperate with the ICC.

Likewise for the 2009 Sri Lankan conflict — allegations of crimes against humanity and even genocide have been aimed at Sri Lankan government forces during their defeat of the LTTE (Tamil Tigers). However Sri Lanka’s non-member status and an ongoing internal reconciliation investigation since the end of the conflict means a Security Council referral to the ICC is unlikely. (Meanwhile, the UNHRC launched an investigation into the allegations as the domestic process was considered to be unfolding unsatisfactorily. The report has been postponed, expected later this year.)

3. Insufficient Funding

ICC Chief Prosecutor Fatou Bensouda has described her office as being so underfunded that it is overstretched in managing their current nine open investigations, never mind the additional nine situations where the ICC has been asked to also investigate, including the 2014 Gaza conflict. Israel has meanwhile reacted to this preliminary investigation by calling on its allies to withdraw funding from the court (as well as withholding Palestinian taxes and donor aid).

4. Pressure to investigate suspects from the Global North

While Bensouda points to a declining number of child soldiers reported in conflicts throughout Africa and claims a positive effect the shadow of the court has in preventing crime, criticism remains about the lack of cases toward crimes committed by actors from the Global North, or at the very least non-African nationals. It must be noted however, that Africa has more signatory states to the Rome Statute than any other continent and African domestic courts have consistently failed to prosecute leading officials for humanitarian crimes, which helps explain the disproportionate number of cases there. The United States, after all, is not a member. However, a prosecution or conviction of a non-African leader for breaches of the Rome Statute would go a long way to restoring African faith in the institution.

5. Reliance on state engagement

The ICC relies on states in a number of ways. Its members fund the organization, with Japan its most generous benefactor (Canada contributed $5.6 million of its $141 million budget in 2015). Non member states are also critical to the court’s legal process by detaining and handing over suspects or convicted leaders, as seen recently when U.S. forces handed Ugandan Dominic Ongwen (a former commander in the LRA) to the Hague in January this year after been captured in the Central African Republic. It should be noted however that the ICC is, essentially, a court of last resort. Carrying out fair and independent domestic investigations removes ICC jurisdiction, as defined in Article 17 of the Rome Statute. The promotion of domestic courts in functioning correctly is also central to the survival of the court, which clearly cannot intervene in every conflict where crimes are reported.

6. Inability to prosecute non-ratified states

Syria, Israel, North Korea, Sri Lanka and the United States are but some states which have not signed or ratified the Rome Statute, but whose nationals or governments have been accused of committing crimes against humanity, war crimes or genocide as defined in international law. Israel, Sudan and the U.S. have actually unsigned the Statute, indicating that they no longer wish to accede to the Court. Condoleezza Rice once famously admitted that U.S. policies towards the ICC were “sort of the same as shooting ourselves in the foot.”

Technically, however, state actors not party to the ICC can be investigated and prosecuted if they are found to perform atrocities on the territory of a ratified state. Palestine’s recent accession to the court and the subsequent preliminary investigation in its territories has stirred Israeli leaders to vehemently criticize the court — perhaps for this very reason. Israel’s ferocious reaction does, it has been suggested, give some credence to the notion that the court is in actuality, a very relevant institution.

7. International criminal law, not humanitarian law

It is more difficult to prosecute against disproportionate attacks in international criminal law than it is to show in international humanitarian law. The war crime of commanding the launch of an attack that causes excessive civilian damage, as is claimed against Israel during the 2014 Gaza conflict, requires a very specific subjective conclusion on the part of the commanding officer as stated in article 8(2)(b)(iv) of the Rome Statute.

Proving that a commander subjectively concluded that the attack would be disproportionate prior to its launch would require a confession or proof to this effect. It is argued that the ICC prosecutor would find it easier to prove in court that Hamas committed this crime than proving beyond reasonable doubt that Israel commanders were guilty of it.

8. Politicized nature of international law

Although the ICC is an independent court with its member states and elected judges making institutional decisions, the effect international politics has on the court is a constant concern. For example, one way the court can investigate is if the UN Security Council refers a situation. Last year, China and Russia used their vetoes to prevent the court from doing so in Syria. Canada and the U.S. have consistently backed Israel at UN Security Council decisions and also have a history of speaking out against ICC involvement in the Israeli/Palestinian conflict.

Further, with the UN Security Council anticipated to support a two-state solution along the 1967 borders, the Palestinian request for an ICC probe into the Gaza conflict becomes even more politically charged. It is argued Palestinian authorities could defer their complaints at the ICC in exchange for support from the U.S. (by withholding their veto) in their bid for statehood at the UN. A bold political move by Palestine would be to commit its leaders to prosecution by the ICC as this may be the only way for a prosecution to be made against Israel for its alleged criminal actions (as discussed in 7 above). However, even without such an implementation, Palestine reaps the benefit of statehood afforded to them by ICC membership.

9. Defining new notions of justice

Agreement at an ICC 2010 Review Conference in Kampala, Uganda, resulted in adopted amendments to the Rome Statute on the crime of aggression, which had previously eluded agreed definition by member states. It is expected that beginning in 2017, the permanent court will be able to investigate and prosecute leaders of states that are responsible for crimes of aggression — the most serious forms of the illegal use of force against other states. It is hoped this new jurisdiction will act as a global deterrent against illegal conflicts and use of force as the Courts reach will extend to referrals by the Security Council, non-ICC member states included.

Another heralded implementation is the court’s enabling of victim participation in proceedings. Victims can now be viewed during trials as key stakeholders, a new precedent set since the ad hoc trials for the former Yugoslavia and Rwanda (ICTY/R). More pressing since the failed prosecutions of the recent Kenyan case at the ICC however is the domestic protection of victims and witnesses, which has become a serious challenge to the court

10. Women to the fore

Crimes specifically targeting women are rife in times of conflict, as documented in many situations. It is refreshing to see in any circumstance however, when three women head a 123-member international organization — with many member states in which women’s issues face many engrained obstacles. ICC’s new president, Judge Silvia Fernandez de Gurmendi of Argentina, first vice-president Judge Joyce Aluoch of Kenya and second vice-president Judge Kuniko Ozaki have been elected to the top positions of the global institution, following Gambian lawyer Fatou Bensouda’s election as chief prosecutor.