When the International Criminal Court began operating 20 years ago this month, its existence reflected a unique historical and political era. Buoyed by the successful creation of war crimes tribunals for the former Yugoslavia and Rwanda, delegates to the conference in Rome that created the tribunal were optimistic about the future of international law.
They believed that the new post-Cold War political order could be underpinned by widely observed international law and a form of global justice that was not decided by powerful states.
Surprisingly, all South American countries and a large number of African states have signed the Rome Statute establishing the ICC. They did this knowing that they would likely be the focus of their investigations, but buoyed by the hope that justice would spread to the mighty global north. Crucially, the UN Security Council was not given a monopoly on referring cases to the court.
However, once the ICC became operational, this optimism quickly dissipated. It took the court until 2006 to start his first trial and another six years to announce his first conviction. In fact, in its 20 years of operation, with a total budget of almost €1.5 billion (Aus$2.2 billion), it has only handed down ten convictions and four acquittals.
During that period, African countries grew increasingly unhappy with the court, not only accusing it of “hunting Africans” but also expressing frustration at its inability and unwillingness to hold the United States and other major powers to account.
Some of the critics misrepresented the institutional and jurisdictional limitations of the ICC. But the fact that it took until 2016 to open an investigation outside of Africa (in Georgia) reinforced the view that the court is a Western-influenced neo-colonial institution.
Additional frustration arose from the ICC’s focus on “low hanging fruit” and its inability to prosecute sexual and gender-based crimes in particular. More recently, the court’s appeals chamber’s decision to overturn the ICC conviction of Jean-Pierre Bemba Gombo, commander-in-chief of the Mouvement de Libération du Congo, raised concerns about the court’s ability to prosecute public officials. high ranking.
But perhaps critics’ biggest frustration with the ICC is its perceived failure to hold the United States (and Israel, to a lesser extent) to account. However, much of this frustration represents a misunderstanding about the court’s legal reach. Neither the US nor Israel is a signatory to the Rome Statute, and the US. The US could veto any attempt to initiate a referral through the UN Security Council.
Critics got some satisfaction when it was announced that the ICC prosecutor’s office would investigate US military and intelligence personnel who allegedly used “torture, cruel treatment, outrages on personal dignity and rape” in Afghanistan. That hope evaporated when a new prosecutor, Karim Khan, announced that the investigation would no longer focus on those alleged crimes.
These concerns about the ICC are the result of two factors outside the ICC’s control: the refusal of some countries to sign the Rome Statute and the heightened expectations generated when the court was created.
Nowhere is this more evident than in the current conflict between Ukraine and Russia. Almost as soon as Russia invaded Ukraine, questions were raised about how the instigators of the war could be investigated and ultimately punished for committing a crime of aggression.
The Ukraine conflict is not a simple matter for the ICC. It has the power to investigate Russia for the crimes it commits in Ukraine because Ukraine has accepted ICC jurisdiction (albeit without signing the Rome Statute). But he cannot prosecute Russia for the crime of aggression because the Russian government has not signed the statute.
More broadly, the fact that an unprecedented number of countries have referred the Ukraine invasion to the ICC is proof of the court’s continuing importance.
The atrocities committed by the Syrian government (also a non-signatory and a close ally of Russia) during the conflict in that country also fall outside the jurisdiction of the ICC.
But courts in France, Germany and Sweden, under the principle of universal jurisdiction, have investigated and prosecuted Syrian individuals. This includes regime intelligence officers suspected of serious crimes.
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Indeed, the existence of the ICC and other new international mechanisms has encouraged an unprecedented collection of evidence on the atrocities committed in Syria. This has been done in the hope that one day those responsible will be held accountable.
The ICC has had another important effect. The specter of a possible ICC investigation into crimes allegedly committed by Australian SAS troops in Afghanistan was a clear factor in the Australian Defense Force’s decision to launch its own investigation. Before the ICC was created, there was no such incentive for national defense forces to investigate the behavior of their own personnel.
The ICC is not perfect. Created in a unique period of cooperation, its operations now reflect the more state-centric and less cooperative world we live in. To condemn him solely for his low prosecution rate would be short-sighted. Instead, we must appreciate the central role it has played in creating expectations that global justice can be realized.