The idea of an international court which could try political leaders for war crimes was first proposed following the First World War. That ambition was realised on 17 July 1998 with the signing of the Rome Statue leading to the formation of the International Criminal Court (“the ICC”), the first permanent international court tasked with trying the most serious international crimes.
The court’s 20th birthday on 17 July 2018 provides an opportunity to assess the impact that the court has had. Does the court represent the pinnacle of achievement by civil society or has it proven to be an expensive irrelevance in a world in which the priority of international co-operation has given way to an increasing preference for state and local determination?
The court, which is located in The Hague, has opened 26 cases since its creation. It is funded by States Parties, but can also receive voluntary contributions from governments and other entities. There are currently 120 countries which have ratified the Rome Statute. These countries include the UK but significantly do not include the US, Russia, or China.
Offences tried at the ICC
The ICC was created to uphold international criminal justice by holding to account perpetrators of grave crimes of concern to the international community: genocide, war crimes, crimes against humanity and (from 17 July 2018) the crime of aggression.
Cases to date
Of the cases heard to date, individuals from seven African countries have been prosecuted for a range of offences including the destruction of historic monuments, murder, conscription of child soldiers, torture and sexual slavery. The single longest sentence passed for anyone convicted was 14 years. The ICC is currently examining incidents beyond the African continent, such as alleged war crimes committed by UK nationals in the Iraq conflict, crimes committed during the conflict in Afghanistan, crimes committed in the Philippines as part of the “war on drugs” campaign and crimes committed in Ukraine during the Maidan protests in 2013/14.
The court has struggled throughout its short life with operational issues, such as the length and complexity of the legal process at this very high level, admissibility challenges, victims’ participation, and implementation of the reparation stage. In addition, the effective operation of the court relies upon the cooperation of States Parties both to investigate suspected war crimes and to arrest suspects. A good example of the limitations caused by this reliance is the situation in Sudan, whose president, Omar al-Bashir, is charged by the ICC with genocide. Not only has Sudan failed to co-operate with the ICC’s investigation, but when al-Bashir travelled to South Africa in June 2015 for a meeting of the African Union, it failed to honour its obligation as a signatory of the Rome Statute, to detain him and extradite him to The Hague. See also our previous blog – “Al-Bashir controversy: has standing of the ICC increased?”
The al-Bashir controversy speaks to a wider problem at the court. The failure by the US and Russia to ratify (or in the case of China, to sign) the Statute has long raised questions over its credibility. The non-participation of these countries means that it is unlikely that any national from those three nations will ever face justice before the court. In combination, the history of the court and the preponderance of cases brought against those from African countries has led to a perception that the court has something of a neo-colonial agenda. This criticism does not take account of the fact that many of the African cases were initiated at the request of the countries concerned. Nonetheless the perception remains and has led to a number of countries (including South Africa) threatening to withdraw from the court. At the start of February 2017 it was reported that a summit of African Union (AU) member states passed a non-binding resolution supporting a "strategy of collective withdrawal" from the International Criminal Court (ICC). See also our previous blog – “African Union encourages African nations to revoke jurisdiction of International Criminal Court”.
A failed experiment?
There is real concern within the political and academic community that popular disappointment in the ICC is easily exploited by unscrupulous or corrupt leaders whose political purposes may be served by a withdrawal from the Statute – for example the decision in March 2018 by The Philippines to withdraw from the court, a month after the ICC started an inquiry into President Rodrigo Duterte's controversial war on drugs. There is a fear that by allowing this lack of confidence to continue, damage is being done to a great institution.
The 20th anniversary is a good moment to reflect upon some of the issues outlined above and how they can best be resolved. Most significantly it must now be clear to all that the court cannot be the only mechanism for holding those accused of the worst crimes to account: it has the resources to deal with only a fraction of such cases. Complementing the work of the ICC, domestic courts in a number of states, including the UK, have increasingly shown a willingness to exercise their universal jurisdiction of war those accused of war crimes and related offences. See also our previous blog – “Universal jurisdiction – cases in the UK”.
Nonetheless, the ICC remains critical both as a court able to deal with the most serious cases and as a symbol of the commitment of the international community to the fight against impunity for the gravest crimes.
Let it be hoped then that the marking of this anniversary will be embraced by the ICC not only as an opportunity to reflect on its achievements thus far, but also to consider how it can be improved and adapt to reflect a world already much changed by the passage of twenty years.