The International Criminal Court – A Lost Potential or Enduring Asset?

By Elizabeth White

“Peace and justice are indivisible… The international criminal court is the symbol of our highest hopes for this unity of peace and justice. It is a vital part of an emerging system of international human rights protection.”
Kofi Annan, then Secretary-General of the United Nations, spoke these words in 1997 in favor of the creation of an international criminal court. Even before its conception, the powerful potential for international criminal justice for the protection of human rights was evident. At a time where a vast majority of Americans support participation in international organizations that support human rights and that hold individuals accountable for mass atrocities, this potential could be reaching an impasse. The Chief Prosecutor of the International Criminal Court recently stated that she had a “reasonable basis to believe” that American soldiers committed war crimes in Afghanistan, and a formal investigation would likely follow. This momentum, however, is coupled with a number of withdrawals from the Court, calling into question its legitimacy and future. The Court is facing an extraordinarily decisive time, in either the achievement of the potential Annan pointed to, or the demise of what could have been a valuable international institution.

The International Criminal Court (ICC or the Court) is the world’s only permanent, international criminal court. It is mandated with the investigation and prosecution of genocide, crimes against humanity, war crimes, and eventually, the crime of aggression. While the first three of these crimes have many overlapping characteristics and a criminal act could be one, two, or all three of them, they are also distinct in important ways: war crimes are committed within the context of an “armed conflict;” crimes against humanity are committed within the context of a “widespread and systematic attack directed against a civilian population,” either during an armed conflict or at peace; genocide is an act committed with the intent to destroy in whole or in part a national, ethnic, racial, or religious group; and the crime of aggression is “the use of armed force by a state against the sovereignty, territorial integrity or political independence of another state, or in any manner inconsistent with the Charter of the United Nations.” There is no hierarchy of these crimes. Through prosecutions, the Court aims to prevent impunity and deter future atrocities.
The ICC was established in 1998 by the Rome Statute, the Court’s governing treaty. It did not, however, begin functioning until 1 July 2002 when the 60th country ratified the Rome Statute. The Court is located in The Hague, Netherlands. It currently has 124 States Parties, or members of the Court. South Africa, the Gambia, and Burundi have, however, recently announced their intentions to withdraw from the Court. All members of the European Union and the North American Trade Organization (NATO) are States Parties, with the exception of the United States and Turkey.

Photo credit: UN Photo/Rick Bajornas via the United Nations Photo Flickr stream

Cases and Situations

The ICC is a court of last resort, meaning that the Court will only investigate crimes where national jurisdictions are unwilling or unable to carry out the investigation or the prosecution of the most serious violations of international law.
Cases can arrive before the Court in one of three ways:
A State Party can refer alleged atrocities to the Court that have occurred on the territory of or by nationals of a State Party.
The UN Security Council can refer alleged atrocities in any country by passing a resolution.
Proprio motu (“on one’s own initiative” in Latin) investigations are initiated by the Prosecutor and approved by a Pre-Trial Chamber, and can involve acts committed in the territory or by the national of any State Party or in the territory or by a national of a non-State Party that has accepted the ICC’s jurisdiction temporarily, during or after the conflict.
In the fourteen years of its existence, the Court has opened ten official investigations regarding the Situations in the Central African Republic; Côte d'Ivoire; Darfur, Sudan; the Democratic Republic of the Congo; Georgia; Kenya; Libya; Mali; and Uganda. A State Party has initiated eight of these cases; the Security Council has referred two to the Court by the Security Council and the Prosecutor has opened three. There are ten additional preliminary examinations under consideration, concerning Afghanistan; Burundi; Colombia; Gabon; Guinea; Iraq/the United Kingdom; Nigeria; Palestine; registered vessels of Comoros, Greece, and Cambodia; and Ukraine. Within the ten investigations, the ICC has indicted 39 individuals. Of those, 17 cases have been completed, resulting in three convictions and one acquittal. The remaining 13 cases were dismissed due to inadmissibility of charges or death of the Accused.

Challenges and Criticism

The extraordinary mandate of the ICC presents numerous challenges. The Court has no associated police force, so it depends on the cooperation and assistance of States Parties in investigations and the execution of arrest warrants. Without state cooperation, suspects can remain at-large, even after their arrest warrants are issued. Two arrest warrants were issued against Omar Al-Bashir in 2009 and 2010, yet he still remains at-large, travelling through various countries, including Chad and Djibouti, two States Parties.
This cooperation extends as well to financial support of States Parties and the UN, upon which the ICC is dependent. Without sufficient funding, the ICC does not have the resources to dedicate to further investigations. “The hypocrisy here is at a new level—supporting further ICC investigations (importantly, outside of Africa) one day but refusing to fund them the next,” international justice experts, Elizabeth Evenson and Jonathan O’Donohue, asserted. In a problematic cycle, States Parties often point to the small docket as a reason for a lack of funding. Criticisms of the ineffectiveness of the Court are, in part, a result of the complicated dynamics of States Parties’ cooperation, or lack thereof.
Given that nine out of ten official investigations involve countries in Africa, the ICC has often been accused of being biased against African nations. Many have supported this accusation, including Ethiopia’s Prime Minister Hailemariam Desalegn, who stated that, "now the process has degenerated into some kind of race hunting.” The relationship between the UN Security Council and the ICC also complicates the investigations of other nations. Only two permanent members of the UN Security Council are States Parties to the Court, and the other members can easily block referrals, as was the case with an investigation into atrocities in Syria. These major debates, among others, divide public opinion on the value of the Court and its effectiveness.
The unprecedented role of the ICC has resulted in a number of challenges to achieving its goals. However, its potential is undeniable. The ICC’s role in the prosecution of perpetrators of serious human rights violations holds the possibility for deterring future crimes, providing some recognition of the violence endured by victims and survivors, and a contributing to norms about individual accountability. My blog post series over the coming months will discuss the International Criminal Court, as a tool for the protection of human rights, as a means of justice and reconciliation, and as a topic of contentious debate.