Contemporary International Criminal Law After Critique Symposium: Accountability for the Unaccountable? Article 15 Communications Beyond the ICC

[Dr Natalie Hodgson is an Assistant Professor in the School of Law at the University of Nottingham.]

On 5 March 2024, news emerged that Australian Prime Minister, Anthony Albanese, had been named in an Article 15 communication to the International Criminal Court (ICC) alleging that he was ‘an accessory to genocide in Gaza’. The communication, prepared by Australian law firm Birchgrove Legal, argued that ‘members of the Australian government, its officials and the Leader of the Opposition’ had ‘provided explicit political, rhetorical, moral, military, and material support for Israel’s genocidal attack’ and had ‘aggravate[d] the ongoing genocide in Palestine through [the Government’s] cessation of funding for vital aid and humanitarian support.’

Two months later, in May 2024, the Geneva International Peace Research Institute (GIPRI) announced that they had submitted an Article 15 communication alleging that the President of the European Commission, Ursula von der Leyen, was complicit in war crimes and genocide against Palestinian civilians. In their press release, GIPRI alleged that von der Leyen was ‘complicit in violations of Articles 6, 7 and 8 of the Rome Statute by her positive actions (military, political, diplomatic support to Israel) and by her failure to take timely action on behalf of the European Commission to help prevent genocide.’ These Article 15 communications add to a range of criminal cases and other lawsuits brought against Western political and corporate actors since the start of the conflict in Gaza.

Under Article 15(1) of the Rome Statute, the Office of the Prosecutor at the ICC may initiate investigations ‘on the basis of information on crimes within the jurisdiction of the Court’. Pursuant to this provision, every year, the Office of the Prosecutor receives hundreds of “Article 15 communications” from individuals and organisations providing information about alleged crimes. Article 15 communications are a way for civil society actors to draw the Court’s focus to situations, crimes and perpetrators that have escaped the law’s attention. However, many of these communications will result in no further action by the ICC. In 2020, the Independent Expert Review of the International Criminal Court and Rome Statute System observed that, of over 14,000 communications received by the Office of the Prosecutor, only 715 (5.05%) were found to warrant further analysis, and only five preliminary examinations were opened on the basis of these communications. Individuals and organisations are likely to face an uphill battle if they are hoping for their communication to result in an investigation and prosecution at the ICC.

And yet, despite these statistics, interest in Article 15 communications is increasing. It appears that many individuals and organisations see Article 15 communications as more than just a route to potential legal accountability – communications are a multifaceted advocacy strategy through which their authors can engage multiple audiences at and beyond the ICC. In my article in the JICJ’s ‘Contemporary International Criminal Law After Critique’ symposium, I explore this advocacy. I argue that making an Article 15 communication enables civil society actors to engage in sociological criminalisation, pursuing a form of extralegal accountability – including for those who remain unaccountable before the ICC.

Accountability Beyond the Courtroom

There are many reasons why perpetrators of violence and harms may not be held accountable under international criminal law. International criminal law criminalises some harms while overlooking others – in particular, structural and slow forms of violence more commonly associated with Western states. Even where conduct does amount to an international crime, it can be difficult to attribute responsibility for that conduct to an individual. Prosecuting authorities might face difficulties in ascertaining an individual’s intention or tracing an individual’s contribution through complex organisational structures and across networks of multiple actors. Substantively, even if a person’s conduct is formally criminalised under international criminal law, domestic authorities may be unable or unwilling to take action against them. While the ICC is intended to complement these jurisdictions, the ICC’s limited resources necessitate selectivity and the prioritisation of some cases and perpetrators. As such, many potential perpetrators of international crimes will never have the legality of their conduct adjudicated in a legal forum.

The communications above (the ‘complicity communications’) reflect some of these challenges. While the communications could show that crimes have been committed in Gaza (although these crimes are unlikely to capture the full range of harms experienced currently and historically by Palestinians), the authors of the communications may find it difficult to convince the Prosecutor that a connection exists between those offences and the actions of political figures located in third states. Further, an Office already struggling with the practical and political difficulties of successfully prosecuting Israeli officials may want to avoid the controversy and backlash that would result from widening its investigation to encompass the complicity of other Western political figures. It appears highly unlikely that these communications will lead to additional individuals being targeted for investigation at the ICC.

And yet, as for international law more broadly, there is increasing recognition of the ways in which the language of international criminal law can be used in public debate. Through international criminal law, civil society actors are able to formulate and present arguments about the illegality of particular conduct to domestic and international audiences. In doing so, the authors of communications take their argument out of the courtroom and appeal directly to members of the public.

By invoking international criminal law, civil society actors seek to convince their audiences that particular conduct is unlawful. The language of international criminal law – with terms such as ‘genocide’, ‘torture’, and ‘crimes against humanity’ – conjures images of widespread pain and suffering, connoting clearly recognisable wrongs. By using the language of ‘genocide’, the authors of the complicity communications label the actions of Israeli forces in Gaza as internationally unlawful. Further, through the language of ‘complicity’, the communications invite national and international audiences to consider what it means to be ‘complicit’ in, and contribute to, genocide. In doing so, the authors of the communications encourage their audiences to expand their view of complicity to include the active support, tacit support, and deliberate silences and inaction of other states and political leaders.

By engaging in this form of advocacy, the authors of communications might be able to leverage the stigma of international criminal law to influence public opinion and generate sanctions against illegitimate conduct. Extralegal sanctions can include protests, boycotts, and the reputational damage that arises from being named as a person who has allegedly committed an international crime. For politicians, who rely on public support for re-election, the consequences of such reputational damage might be somewhat acute. Therefore, by labelling conduct as unlawful, the authors of communications may be able to mobilise public opinion to pursue a form of accountability for people who remain unaccountable before formal legal institutions. And yet, further research is needed to understand the effect that Article 15 communications can have on influencing public opinion and, as such, the extent to which communications can contribute to meaningful outcomes for advocacy campaigns.

Why International Criminal Law?

Arguably, an Article 15 communication is not necessary for an individual to introduce international criminal law into public debate. Theoretically, any individual could invoke the language of international criminal law (or indeed, international law more generally) to label conduct as illegitimate in an attempt to cause reputational damage. However, an Article 15 communication may offer benefits in allowing civil society actors to more effectively capture the attention of the media and the public, amplifying the reach of their advocacy. An Article 15 communication has the potential to be highly newsworthy; among other factors, media outlets are more likely to report on stories that concern powerful individuals, are novel or surprising, or contain an element of controversy or conflict. By alleging that western political figures are complicit in genocide and warrant investigation at the ICC, the complicity communications invoke these dimensions of newsworthiness to attract the public’s attention.

However, the strategic use of Article 15 communications is not without its controversies. For example, when individuals and organisations make a communication and invoke international criminal law in response to mass violence, this might problematically inflate victims’ expectations that a legal response from the ICC is likely to be forthcoming. Article 15 communications may also risk reinforcing the legitimacy and penality of international criminal law in contrast to an abolitionist approach – an issue explored by Rigney in her contribution to the JICJ’s symposium. These are legitimate strategic questions that individuals and organisations will need to grapple with in deciding whether or not to make an Article 15 communication.

And yet, when powerful individuals are able to operate with impunity, it is understandable why so many invoke international criminal law as part of their campaigns of resistance. While the complicity communications are unlikely to prompt any action at the ICC, they add to attempts to use law in creative ways to support the political struggles of Palestinians and to shape public opinion in support of this cause. In doing so, the communications join a growing body of practice that is exploring whether and how international criminal law may be used for counter-hegemonic purposes and the extent to which international criminal law can play a role in holding western political actors accountable for their conduct.