International justice and the role of the International Criminal Court

– Arianna Miorandi –

Mattia Cacciatori is a Ph.D. Researcher at the University of Bath, UK. His research lies at the crossroads of international relations and international law, and focuses on the role of the International Criminal Court (ICC) as a security agent. Mattia has written several pieces on the ICC for a variety of forums including Open Democracy, Justice Hub, Justice in Conflict and The Conversation. He is part of the editorial team of the only ICC focused journal ‘Eyes on the ICC’. 

  1. What does the International Criminal Court (ICC) do?

The International Criminal Court (ICC) is the result of a decade of preparations. With the experiences of UN-sponsored ad hoc tribunals in the 1990s under the belt, the Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (or Rome Conference) took finally place on July the 15th, 1998 in Rome, and led to the drafting of the Rome Statute, the underpinning treaty of the ICC. After the negotiations, the Rome Statute opened for signatures on the day of its adoption, July the 17th 1998, granting states with the possibility of signing until December the 31st 2000. With 139 states signing the Rome Statute, expectations for this new court rose. For the ICC to become internationally recognized as a working treaty, 60 signatures were required, threshold requirement which was met on April 11th, 2002, with the Democratic Republic of the Congo (DRC), Niger, Cambodia, Jordan, Mongolia, Bosnia and Herzegovina, Bulgaria, Romania, Slovakia, and Ireland signing the Treaty.

The mandate of the ICC has been seen by many as being the zenith of that institutional process that started in the wake of WWII with the creation of the Nuremberg and Tokyo tribunals. The Court should be, in the eyes of its supporters, the maximum expression of the fight against genocides, war crimes, and crimes against humanity.

The establishment of the Court has been an historical moment for several reasons but, perhaps more than others, the ICC is revolutionary on two aspects: first, the Court provided that the relic of immunity for serving heads of state should be lifted in contexts of the most serious crimes conceived by the humankind. Second, the request for cooperation with member states of the Rome Statute, more than a mere enforcing tools, constitutes a forum to promote and enforce basic human rights on a global scale, with states and organizations supposed to take up their responsibilities in this domain.

  1. How effective is the ICC in serving justice?

The question is a difficult one, essentially because of the inherent problems in defining both effectiveness and justice. From a mere pragmatic approach, in almost 15 years of operations the ICC has opened 9 investigations in 8 countries, issued warrants of arrest for roughly 20 people and only 5 of those are currently held in custody of the Court, in the Dutch prison of Scheveningen. This latter number is definitely not an impressive one. However one has to acknowledge the enormous task of the Court and the fact that, despite the fact that more than 10 years passed since the establishment of the Court, institutional revolutions are not a quick thing.

My view of justice isn’t however limited to the imprisoning of criminals. The ICC has the explicit mandate to sustain democratization by establishing the rule of law, and promoting an idea of global justice that challenges traditional accounts of sovereignty. In these two respects, I believe, lies the core of the discussion. The questions for me then should be: is the ICC actually promoting democracy? And, is the ICC eroding the idea that states should be allowed to do whatever they want within their boundaries?

While the creation of the ICC per se follows these principles, the practices of the Court in recent years demonstrate a problem in delivering on these aims. In Sudan and Kenya, a progressive marginalization of political contestation and the harshening of governmental grip of NGOs were justified by the Al Bashir and Kenyatta governments precisely because of ICC actions. Narratives of neo-imperialism dominated the resistance offered by the two governments to the Court, and eventually encouraged authoritarian practices.

On the promotion of the idea of global justice, the matter is much more complex. In fact, the idea of global justice promoted by the ICC is deeply rooted in European thought. In other terms, it is infused with narratives that speak about the necessity of punishing offenders in a retributive, top-down, manner. If this idea seemed to have been accepted during the negotiations to establish the ICC in 1998 by an impressive number of states (with the exclusion of the UNSC’s P-4 – not the UK), including African ones, this idea is challenged nowadays. I believe that the inconsiderate ICC policy of opening 8 situations out of 9 in the African continent, and the insistence of prosecuting heads of state despite local concerns on the necessity of prioritizing peace over justice, has progressively eroded the credibility of the ICC as a carrier of global justice. For this reason the ICC is nowadays a forum to contest the idea of global justice promoted mainly by European states in 1998, and reaffirm the importance of states’ sovereignty. This is the opposite of what the ICC was designed for.

  1. What are the major challenges facing the ICC?

The major challenge nowadays is re-gaining some form of credibility in the developing world. The ICC was designed to operate in societies torn by conflict and by conflict divided. If the ICC is perceived as a tool of neo-imperialism, developing countries will not grant the Court with the cooperation it needs to operate, as shown by the Sudanese and Kenyan cases when the ICC was eventually forced to drop charges. The ICC is seeking a way out of Africa, by preliminary investigating a situation in Georgia. It remains to be seen if the credibility of the ICC can be reaffirmed, or it has been damaged to a point in which states will refuse to cooperate with the Court a priori.

  1. Why isn’t the United States a member of the International Criminal Court?

This is great power politics. America’s hegemonic power has been particularly evident since the end of the Cold War and was certainly evident, despite cosmopolitan pushes, in the early 2000s when the ICC was established. Great powers, for their ability to influence the course of international relations, enjoy special right in the international society. One of these rights is to dissent without clamorous backlashes from dominant institutional paradigms. That is why great powers tend to be more effective in their reluctance to yield sovereignty on practices that are commonly thought as state-practices, like the administration of punitive justice.

A similar discourse can be made for China and Russia, both of which failed to ratify the Rome Statute. Moreover, China and Russia’s foreign policy have been often infused with the principle of sovereignty that the ICC challenges. In other terms, great powers are reluctant to be subject to external influence in the administration of their power.

  1. South Africa has declared its intention to withdraw from the ICC and called for all nations in Africa to walk out of the Court. What does this mean for international justice? Is the rest of Africa likely to follow South Africa’s lead?

It is very difficult to know whether the calls for an African mass withdrawal from the ICC will become concrete in the next future. However, there are some factors that should not be underestimated. First, South Africa is not alone. Several African states have expressed similar views like Kenya, Uganda, Sudan and many others. Second, South Africa has been seen as the torch-bearer of human rights in Africa since the early 1990s. For this reason South African stances over the ICC are of particular relevance. Third, the African Union seems to support the view that African states should abandon the project of the ICC. These three reasons combined should be taken as red-lights of a dissidence that is not unique or just nominal, but could concretize very soon.

What would a mass withdrawal from African states mean for the ICC? Let’s consider the jurisdiction of the ICC. The Court operates on the Vienna Convention on the Law of Treaties, which based on the principle pacta tertiis nec nocent nec prosunt. This means that only the ratifiers of international treaties are subject to them. To date the Rome Statute has two jurisdictional vacuums. In the Middle East, only Afghanistan ratified the Statute. In Asia, with the exception of Japan, the Statute has little to no resonance. If Africa pulls out, this would essentially mean a restricted jurisdiction of the Court that would only cover crimes committed in Europe, Latin America, and some Asia-Pacific countries. I wonder how long it would take for Latin American countries to realize that they could be the next best target for ICC operations and, consequentially, to follow in African footsteps to de-ratify the Rome Statute.


Featured image source: Flickr – United Nations Photo)