Don’t Give Up on the ICC

This April, judges at the International Criminal Court (ICC) rejected the prosecutor’s request to launch an investigation into alleged war crimes and crimes against humanity committed primarily in Afghanistan in 2003 and 2004 by the Taliban, Afghan government forces, and—most controversially—U.S. soldiers and CIA officers. Although the crimes at issue were clearly within the court’s jurisdiction, the judges reasoned that the “the prospects for a successful investigation and prosecution [were] extremely limited.” 

Coming a few months after U.S. National Security Advisor John Bolton had threatened sanctions against the court and shortly after the U.S. government had revoked the prosecutor Fatou Bensouda’s visa for travel to the United States, the court’s decision was widely condemned as a naked concession to Washington’s intimidation and an invitation for other opponents—whether in Beijing or Moscow—to redouble their resistance. Afghan victims’ representatives expressed shock at what one condemned as a “deplorable” judgment that “will lead to immunity being granted to Taliban forces … accused of committing massacres.” 

In another time, the Afghanistan decision might have been taken as a one-off mistake. But it was the latest in a string of disappointments that have shaken confidence in the institution. None of this means that we should give up on the ICC. But it does add urgency to a new effort getting underway to revitalize its operations. 

When the ICC was created in 1998, then-United Nations Secretary-General Kofi Annan proclaimed it “a gift of hope to future generations.” But in its first two decades, the court has produced just three convictions for war crimes and crimes against humanity that have survived appellate review. 

In recent years, the court has suffered a number of embarrassing setbacks. In 2014, the prosecutor was forced to withdraw charges against Kenyan President Uhuru Kenyatta after government stonewalling deprived her of the necessary evidence. Four years later, the conviction of former Congolese Vice President Jean-Pierre Bemba for crimes his troops had committed in the Central African Republic was overturned by five appellate judges whose fragmented reasoning—in four separate opinions, including three by a splintered three-member majority—confused many. 

While dissenting and concurring opinions are not unusual and can be beneficial, the court’s failure to marshal consensus on such a range of fundamental questions—from the outcome of the case to the doctrine of command responsibility to the degree of variance between the charging document and any resulting conviction—offered little practical guidance for future prosecutions.

This January, in acquitting Laurent Gbagbo, the former president of the Ivory Coast, and his chief aide of all charges after they had each spent at least six years in detention, a divided trial chamber found the prosecution’s case so insufficient that it did not even need to hear from the defense. But the majority took six months to issue a written judgment, then took over a thousand pages to explain why the evidence did not add up, compounding the prosecution’s apparent flaws with judicial inefficiency. 

In most circumstances, an acquittal is evidence of justice being done. But something is wrong when a court created to “put an end to impunity” for “the most serious crimes,” that deals with a handful of cases at a cost well in excess of $150 million per year, produces more acquittals and dismissals of charges than convictions. 

Beyond its poor record at trial, ICC proceedings take an unduly long time. Before requesting authorization to launch an investigation, the prosecutor had engaged in a preliminary examination of alleged crimes in Afghanistan for more than a decade. The 2014 war in Gaza and the situation in the Israeli-occupied Palestinian territories have been the subject of an ICC inquiry without resolution for four years.

And the investigation into criminality during the 2008 conflict between Georgia and Russia has been underway since 2016 with little to show. These delays are a product of scarce investigative resources, a lack of state cooperation, and other factors. But with limited communication and outreach, victims and members of affected communities have been left wondering what, if anything, the court is doing. 

Given all this, it is disconcerting that one-third of the court’s judges are suing for a pay raise plus pension increases and damages that could run into the millions. Why, when the court has been underperforming and the budget is strained, are its judges dedicating precious time and energy to increase their already generous compensation—which at around $200,000 tax-free exceeds that of judges on many national courts? 

Court officials do not bear sole responsibility for this state of affairs. The ICC has never been embraced by the world’s most powerful and populous states. Today it confronts fierce headwinds from U.S. President Donald Trump, Russian President Vladimir Putin, and other populist authoritarian leaders. 

Even ICC member states have offered only tepid and inconsistent support. Sudan’s recently deposed President Omar al-Bashir traveled widely with impunity for more than a decade, including to ICC member countries, while facing charges of genocide in Darfur. In the last two years, Burundi and the Philippines left the court in an effort to evade accountability for their political leaders. Malaysia’s newly democratic government, initially poised to join, abruptly changed its mind this spring when the potential implications for senior figures became clear. 

Even in South Africa, once a poster child for the rule of law, the ICC is regularly depicted as a so-called Western institution imposing double standards. Prompted in part by the failure to arrest Bashir when he visited the country in 2015, South Africa’s Parliament has been playing for two years with the idea of withdrawing from the ICC, at the same time as the South African government seeks to assert its leadership on a continent whose governments remain skeptical of the court. 

It should not be surprising that an institution created to limit the power of political and military leaders would encounter stiff opposition and secure little cooperation. And there is nothing easy about asking staff from more than 90 countries, each with their own legal cultures and traditions, to forge a well-functioning international judicial institution.  

Nonetheless, the combination of subpar performance and ebbing political backing have provoked some to ask: Is the ICC, an institution born at a fleeting moment of post-Cold War optimism, still worth fighting for, given the many challenges advocates for justice face in a very different time? It is—and the picture is not all bleak. Despite the problems, the ICC has shown that it can sometimes live up to the grand expectations that marked its birth. 

This July, Bosco Ntaganda, a former rebel commander from the Democratic Republic of the Congo, was convicted of 18 war crimes and crimes against humanity, which reflected far more comprehensively than prior cases the vast scale of criminality that has plagued eastern Congo. The judgment will be appealed, but for now, the court has proved that it can investigate and prosecute a senior figure responsible for a broad array of heinous offenses.   

Last year, the ICC prosecutor persuaded judges that the court has a role—albeit a limited one—to play in responding to the mass atrocities committed against the Rohingya minority forced to flee Myanmar, even though that country has not ratified the Rome Statute (which is one basis for jurisdiction) and the U.N. Security Council has shown no inclination to involve the court, as it has the power to do. The reason, judges agreed, is that part of at least one crime—deportation—and perhaps others took place in Bangladesh, a country that has ratified the Rome Statute and into which most Rohingya fled from abuse. This June, the ICC prosecutor formally requested permission to investigate these crimes. To be sure, this request, even if granted, is only a first step. But it is a promising one. 

Despite its problems, the ICC has had important impacts outside the courtroom. 

Even as it has refrained from pursuing its own investigation of possible war crimes and crimes against humanity in Colombia, the court’s quiet monitoring and oversight of postwar developments in the country have helped ensure that accountability is a critical part of a national peace process following a decadeslong civil war

The court’s mere existence has also served as a catalyst for accountability. The U.N. Security Council’s refusal to call in the ICC to address the vast scale of crimes in Syria has prompted national prosecutors in France, Germany, and other European countries to launch their own cases, with one resulting in the arrest in Berlin this February of a former high-ranking member of Syria’s General Intelligence Directorate, accused of overseeing mass torture in the Bashar al-Assad regime’s detention facilities.

Security Council blockage of an ICC referral also sparked the U.N. General Assembly to create a novel entity, the International, Impartial and Independent Mechanism, to build investigative files for future prosecutions. ICC officers have also helped train, work with, and strengthen the capacity of investigators and prosecutors in the Central African Republic, Congo, and Nigeria. 

These impacts are hard to measure with precision. They are the product not just of the ICC, but also of efforts by national authorities, regional human rights institutions, and civil society, all of which form a gradually strengthening global ecosystem to address mass crimes. And yet, the ICC’s contributions have been substantial.

Another reason to double down on the ICC is that court officials and states can take concrete steps right now to make it more effective. A number of states have publicly recognized that they could improve the quality of judicial nominations—often the object of horse-trading and shortsighted diplomacy—by strengthening their own nomination procedures and empowering an advisory committee to reject nominations that do not satisfy minimum standards of judicial competence. Several nations recently embarked on a more rigorous process for selecting the next prosecutor (who will take office in mid-2021) by including, for the first time, a group of independent experts in the recruitment and vetting of candidates. 

Flawed as it is, the ICC remains a capstone of a centuries-long search for a world in which the law prevails over brute force.

The test of their commitment will be if the process over the coming year is merit-based, states refrain from political deals, and they elect the best person for the job. The Office of the Prosecutor must also take a hard look at the protocols for investigations, examine whether resources can be more efficiently deployed, and consider whether it has the most qualified staff for the roles required. Both the prosecution and the judiciary could also do more to expedite proceedings and reduce unnecessary delay by modifying existing practices. And the Registry could bridge the large gaps in public understanding and engagement that undermine support for the court.

Perhaps the most compelling argument for investing in a more effective ICC is that letting it die would deliver a huge blow to the fight against impunity. Flawed as it is, the ICC remains a capstone of our centuries-long search for a world in which the law prevails over brute force. Giving up on it now would set back that struggle immeasurably and would be a grave disservice to the many courageous activists who have given their lives for the cause of fighting crimes against humanity and genocide.