The International Criminal Court at 14

[Shehzad Charania was the Legal Adviser and Head of International Law at the British Embassy in The Hague between January 2013 and August 2016.  The views set out in this article are personal, and do not necessarily reflect the views of the British Embassy or the Foreign and Commonwealth Office.]

Earlier this year, the King of the Netherlands opened the new permanent premises of the International Criminal Court in The Hague, in a ceremony co-hosted by ICC President Silvia Fernandez and the President of the Assembly of States Parties Senegalese Justice Minister Sidiki Kaba.  The Secretary General of the United Nations Ban Ki-Moon also attended, along with former ICC Presidents and Judges.

In his remarks, the Secretary General said that the inauguration was a “milestone in global efforts to promote and uphold human rights and the rule of law”.  The ASP President said that this was a “day of hope for all victims of mass crimes in the world”.  President Fernandez announced that the Court was “here to stay”.

But setting the rhetoric aside, how does the ICC’s report card look since it opened its doors 14 years ago?

The successes

Clearly, the ICC has come a long way since its establishment in 2002.  It has had notable successes.  The Prosecutor securing a first conviction against Thomas Lubanga was a significant step forward in bringing accountability for the recruitment and use of child soldiers; the second conviction saw the accused Germain Katanga apologise to his victims.  The conviction in March of former DRC Vice President Jean Pierre Bemba was the Court’s first for rape.  Earlier in March, the Court received its first guilty plea when Ahmad al-Faqi al-Mahdi admitted to the destruction of historical and religious monuments in Timbuktu.  And across all the cases, 25,000 victims are formally participating in ICC proceedings, with over 180,000 beneficiaries of assistance through the ICC’s Trust Fund for Victims.

The setbacks

But the Court’s successes have arguably been overshadowed by a series of high-profile setbacks. For the Office of the Prosecutor, the most notable have been in Kenya, where the Prosecutor’s six attempted prosecutions for the 2007-08 post-election violence have all ended in failure, the final case against Kenyan Deputy President William Ruto collapsing in April.  Last year, the Prosecutor had to withdraw similar charges against President Kenyatta.  In the ruling in the case against the Deputy President, the majority referred to witness intimidation and, in the words of the Presiding Judge, “political meddling”.  But there have also been highly critical judicial decisions regarding the quality of the prosecution’s investigations and evidence across all the Kenyan cases.

The challenges

The Court’s current challenges are stark.  Yet it is important to note that many of these are primarily for its Member States rather than the institution to address.  But failure to deal with them reflects on the effectiveness, legitimacy and credibility of the ICC itself.  Here are some.

First, all the cases and eight of the nine investigations at the ICC are African, leading to accusations of racism and neo-colonialism, and questions around the Court’s legitimacy.  Admittedly, the majority of the Court’s situations were referred to the Prosecutor by African countries themselves.  But the Prosecutor has faced criticism about the fact that in those same situations there have been indictments only of opposition figures, opening up the Court to further accusations of partial justice, and allowing the ICC to be used for political ends.

Second, the absence of the US, Russia, China and India means that there will always be a question mark over the ICC’s relevance.  More urgently, the Court does not have jurisdiction over the worst crimes taking place in the world today: neither Syria nor Iraq are members of the Court, and Russia and China have vetoed a UN Security Council resolution allowing the ICC to step in on Syria.

Third, inadequate State cooperation remains the biggest obstacle to progress.  Just a few months ago, the ICC’s Pre-Trial Chamber made findings of non-cooperation against Djibouti and Uganda for not arresting Sudan’s President Omar Al-Bashir, in line with their legal obligation under the Rome Statute, when he stepped onto their territory.  And the cases against the Kenyan President and Deputy President, as well as the ongoing investigations into crimes committed in Cote d’Ivoire in 2012, have starkly posed the question of how the Court can prosecute serving high-ranking State officials when it needs the assistance of authorities in those very States to do so effectively.

Fourth, witness tampering is becoming an increasing part of the Court’s workload, diverting precious resources from the investigation and prosecution of the most serious crimes the ICC was set up to deal with.  The Court’s most expensive trial in 2016 was such a case.

Fifth, it takes years to administer international justice in a single case, in part due to the complexity of the crimes involved.  The current timescales could be reduced through more efficient procedures, and this is the ICC President’s top priority.  But these cases will never be as fast as simpler, domestic cases.  Many survivors will die before they see accountability.

Finally, international justice costs money.  And as States begin negotiations on the 2017 budget, they understand that unlike other international organisations they cannot tell the institution what to do – which investigation to open, who to pursue, and who to convict or acquit.  The Court must use States Parties’ own money to pursue individuals in those same States, sometime the heads of those States.  That’s part of the “price” of international justice.

The future

The ICC, therefore, faces an uphill task, not made easier by what is potentially on the horizon.  The Court is already investigating Russian and Georgian actions during the 2008 armed conflict.  And it is conducting preliminary examinations outside Africa – which could lead to full investigations and therefore indictments – in situations relating to: Ukraine, where the Prosecutor is likely to be examining allegations against Russia following the annexation of Crimea; Afghanistan, where amongst other things allegations of detainee abuse by US officials are being considered; possible war crimes by all sides in the Occupied Palestinian Territories; and of course Iraq. In addition, within the next couple of years, the Court is likely to have jurisdiction over the crime of aggression, opening up a whole new political dimension to the ICC’s work.

But for countries such as the UK which attaches serious importance to the rules based international system, the test of its commitment is about seeing institutions such as the ICC through both the good and the bad times. That means ensuring full cooperation, resisting threats to its independence, speaking up for the Court when it is under attack, and all while continuing to push for serious institutional reform.

More than ever, the ICC needs its friends, in particular States Parties and NGOs, to be constructive critics. At the same time, after only 14 years of existence, we should not be surprised that there is more to do within an institution designed to hold the most powerful individuals to account. Instead of lamenting the fact that the ICC is not perfect, we should celebrate the fact that the Court exists at all, and that it is ready and willing to meet the challenges head on.