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ICC: The Court of Last Resort

Will the ICC's next decade see the court expand the stop-start gains of its first 10 years?

Published in: Foreign Policy

July 1 marks the 10th anniversary of the entry into force of the Rome Statute of the International Criminal Court (ICC), the first permanent international court with a mandate to investigate, charge, and try people suspected of genocide, crimes against humanity, and war crimes worldwide. At the ripe old age of 10, the court has become a high-profile institution on the world stage -- central to nearly every call for international justice for the most serious crimes. Nearly two-thirds of the United Nations' membership, 121 states, have ratified the ICC's statute, which legally obligates them to cooperate with the court. And the ICC is staying busy: The current docket includes the cases of, among others, three heads of state, a former vice president from a fourth country, and two presidential candidates from a fifth.In August, judges will consider sending former Ivorian President Laurent Gbagbo, now in court custody, to trial. Meanwhile, there are growing, but initial diplomatic efforts are under way to have those Syrian officials responsible for alleged crimes appear before the ICC.

At the same time, however, the court has been unable to take custody of several leading suspects such as Sudanese President Omar Hassan al-Bashir and the Lord's Resistance Army's Joseph Kony, who continue to reap murder and sow mayhem. In addition, the Office of the Prosecutor has failed to pursue any investigations outside Africa. In just the last few weeks, in the starkest crisis in the court's institutional life, an ICC defense lawyer and three staffers visiting Muammar al-Qaddafi's son, Saif al-Islam, have been detained by a militia in Libya that is holding him.

The ICC is also managing a large investigative docket and caseload. It is conducting investigations in seven countries -- in the Central African Republic, Democratic Republic of the Congo, Darfur in Sudan, Ivory Coast, Kenya, Libya, and Uganda. The Office of the Prosecutor is also considering whether to open investigations in Afghanistan, Colombia, Georgia, Guinea, Honduras, Nigeria, and South Korea. Meanwhile, the court's investigations have spawned renewed interest in bolstering national prosecution of serious crimes in Congo, Guinea, and Uganda. These initiatives could be a lasting spillover effect of the ICC as "a court of last resort."

Despite serious performance problems and the ebb and flow of support from governments, the court has made significant initial headway, giving rise to enormous expectations wherever the world's worst crimes occur -- as poignantly demonstrated by the Syrian protesters' signs last month that read "Assad to The Hague." Today, the International Criminal Court is the address for international criminal accountability. Yet as the court, with its daunting mandate, extends its reach, the flaws in its workings have become more visible.

The ICC differs in several essential aspects from the earlier ad hoc tribunals for the former Yugoslavia and Rwanda. These were created by U.N. Security Council resolutions. Coming as the result of a multilateral negotiation involving 150 countries over several years, the ICC was created in an extraordinary spate of judicial institution-building in the 1990s. As a result, at the outset, the court enjoyed a broad legitimacy and resonance with governments around the world. Countries that had recently made a difficult but successful passage from dictatorship to democracy, like South Africa and Argentina, saw their experiences and newfound commitment to accountability as empowering them to bring real value-added to the court's creation.

Despite its all-Africa concentration, the court, unlike the ad hoc tribunals, has a reach that goes far beyond one continent or subregion. The ICC is authorized to exercise its mandate over the "most serious crimes of concern to the international community" if either the state on whose territory the crimes occurred or the state of nationality of the accused has ratified the treaty and has failed to do its own investigations. This broad authority offered the promise of a more level international playing field for justice, and this prospect fueled widespread support.

Over the decade, though, this expectation has been undercut by the double standard of the world's most powerful states. Three permanent members of the U.N. Security Council -- the United States, Russia, and China -- have not joined the court. Through their non-ratification and veto power, they have insulated themselves from the ICC. They have also shielded the leaders of certain "client states." Syria, which has not ratified the ICC treaty, is just the most recent beneficiary. President Bashar al-Assad has been effectively insulated from the court because of Russia's veto. This double standard scars the global terrain on which the ICC works, marking it with an ugly unevenness where the same law does not apply to all. The court's authority, virtually with the exception of referrals by the Security Council, rests on the voluntary decision of states to join the "Rome Statute system," and with 121 members, the court's arm reaches far beyond a law-abiding handful of states. Unsurprisingly, those with the most egregious records -- North Korea, Sri Lanka, Zimbabwe, to name a few -- have not joined. Because of the limitations in this consent-based jurisdictional regime that states negotiated in Rome, there are sizable "impunity gaps" on the international landscape.

The prospect of a "more level playing field" was at the heart of the U.S. government's ambivalent relationship to this project from the outset. In May 1998, Defense Secretary William Cohen told a visiting Human Rights Watch delegation that he would not recommend that President Bill Clinton endorse the treaty without an "ironclad guarantee" that no U.S. service member would be brought before the court. At the Rome conference where the treaty was completed, the large U.S. delegation, which certainly made some important substantive contributions, also extracted major concessions in the name of "raising the comfort level in Washington" that weakened the court. The latter included insistence on the tight restrictions inherent in the consent-based regime. In the end, the United States voted against the final text along with Iraq, Israel, Libya, and China.

In part because of the unexpectedly large number of countries that signed the treaty by the deadline for signature, by December 2000 the Clinton administration, then in its last weeks in office, took the important symbolic step of signing. In an unprecedented diplomatic step, however, George W. Bush's administration sought to "unsign" the treaty and derail the court. When that backfired embarrassingly, the administration in 2005 adopted a more pragmatic approach on a situation-by-situation basis, supportive of ICC investigations in Congo, Darfur, and Uganda. The Obama administration has been much more positive and engaged. It has sent large observer delegations to the annual meetings of ICC states and has participated actively in those. Given the 40 years it took the U.S. Senate to ratify the treaty to prevent and punish genocide, however, Senate ratification is a very, very long way off. If there is a second Obama term, to maintain credibility in its pronouncements on behalf of justice, the administration will need to step up its engagement with the court.

In establishing a judicial institution with this extraordinary mandate, there were bound to be shortcomings. And there have been serious problems. Some are caused by external conditions, while others are performance problems internal to the workings of the court.

First among external challenges is the ICC's dependence on countries to execute its arrest warrants because it does not have a police force. This causes delays and obstacles in getting custody of suspects. Thus, President Bashir and two other ICC suspects who are Sudanese government officials remain at liberty as Khartoum unleashes a new round of atrocities in southern Sudan. Robust diplomatic backup by the states that have joined the treaty, as well as the U.N. and the European Union, is crucial to bringing about compliance with arrest warrants, but support has been more of an inconsistent, on-again, off-again quality, depending on political circumstances. Nonetheless, Bashir has clipped his travel schedule, avoiding both ICC and non-ICC states out of fear of arrest. In fact, the African Union decided to move its July summit from Malawi because President Joyce Banda threatened to arrest Bashir if he attended.

The status of Libya's ICC suspects reflects another glaring failure of support for the court. The Security Council's unanimous vote on Feb. 26, 2011, to refer Libya to the court generated a palpable sense of pride among the ambassadors in the council chamber. The resolution imposed a binding obligation on Libya to surrender Saif al-Islam al-Qaddafi and former intelligence chief Abdullah Senussi to the court. Yet, for the United States, Britain, and France, this obligation has vanished from official talking points. The word from Washington, London, and Paris is that justice for past crimes "is in the hands of the Libyan people." This is reminiscent of what American administrator Paul Bremer's people in Baghdad said to me in July 2003, discussing the modalities for trying Saddam Hussein.

The court faces other external problems. It inevitably applies its judicial mandate in highly polarized situations, and there is a real danger that it can be seen as a tool to advance political objectives. This risk is reinforced by the inconsistent support from states, especially the Western governments that champion accountability. The inconsistency can make the court seem less like a permanent institution of international justice and more like a light switch at the fingertips of a few permanent Security Council members. The patchy support fuels the argument of court opponents that the ICC is just another instrument in the diplomatic tool kit of the big powers. In July 2009, driven by Col. Qaddafi, the African Union called on its members not to cooperate with the ICC arrest warrants for Bashir.Qaddafi, who had long sought influence in Africa, was seeking to curry favor with regressive African governments and oppose, out of well-founded self-interest, greater accountability across the continent.

Finally, driven by economic concerns, several of the largest contributing states are trying to slash the court's budget at a time when demands on the ICC are growing. If successful, this "zero nominal growth" approach risks sacrificing legal defense, victim participation, and outreach. Ultimately, it could gut the court's ability to have impact in the communities most affected by the alleged crimes.

Other challenges include the court's own performance problems. The prosecutor's task was always going to be difficult. Having finished his nine-year tenure on June 15, Luis Moreno-Ocampo, while extremely energetic, put a premium on short-term results as opposed to taking a more strategic view. Yet hemade important progress. At his request, the court issued unsealed arrest warrants for 19 suspects and voluntary summonses for nine. There have been significant flaws in prosecutorial policy, however, especially the absence of coherent practice in selecting cases. While proclaiming to target "those most responsible," the policy in a number of countries appeared highly selective. In Libya, for example, Moreno-Ocampo did far too little about the serious crimes committed by militias opposing Qaddafi. This seeming lack of impartiality left the bitter impression of "victor's justice."

Choosing cases to bring to trial that are representative of the underlying patterns of ICC crimes requires a broader vision than Moreno-Ocampo employed. In eastern Congo, for example, ethnic conflicts have killed as many as 60,000 people in more than a decade of fighting. Yet the Office of the Prosecutor has brought cases against only several militia leaders -- but no government officials or senior military officers believed to be implicated in atrocities. That has undermined local perceptions of the court's independence and impartiality.

For the court to be viable, proceedings must move expeditiously while remaining scrupulously fair to the rights of the accused and the interests of victims. The court's first trial -- on three counts of conscripting child soldiers in eastern Congo-- took three years and cost many millions of dollars,aprohibitively long and expensive process. Fortunately, the second and third trials of Congolese militia leaders are moving more efficiently, and the judges are looking to make changes in their procedures to better advance the interests of justice. This year, the ICC had a budget of roughly $144 million, a sum that was contributed proportionately by its state parties. Indeed, trying mass crimes and atrocities while respecting due process rights and reaching out to communities thousands of miles from The Hague is not cheap. But though this cost remains a much smaller sum than is required for military or peacekeeping operations, it is imperative for court officials to be accountable for their budgets and alert to efficiency.

Another problem, despite some initial headway, has been insufficient emphasis by some member states in seeing the court make its proceedings meaningful in the communities -- whether eastern Congo or northern Uganda -- most affected by the crimes alleged. For the rule of law to take root where it most needs to, the states that pay for the court, especially the biggest contributors, need to see the importance of the trials having an impact in the communities where the crimes were committed. This will mean a change in the prosecutor's selection of cases, outreach to victims, and programs through the court's Trust Fund for Victims to repair some of the harm that has been done.

The ICC's tasks would be formidable in one country, let alone the seven that have ongoing investigations. Drawing from the experiences of the previous ad hoctribunals, a more comprehensive vision of the ICC's mission is, however, essential to fulfilling its mandate. There is a risk that as the court is asked to take on more cases in more countries that it will "hollow out" its approach and do less in each -- especially given the difficult economic times.

The increased financial pressure on the court coincides with the awakening of popular protest across the Middle East and North Africa. This upheaval presents both real opportunities and formidable obstacles for the court in extending the reach of justice to crimes against humanity and war crimes there. Until recently, the region, whether Arab states or Israel, had been immune to justice for these crimes -- an "accountability-free zone." Calls for accountability have never been so pronounced as they are today, but old habits die hard and impunity is not easily shaken.Given the high geopolitical stakes in the region -- oil, terrorism, Western fears of political Islam, and sensitivities over both Israel and Iran -- there is a danger that the more traditional interests of the most powerful states will get even greater weight in policy formulation, pushing justice to the periphery. We have already seen the worrying use of amnesty for senior officials implicated in serious crimes.

Tunisia's former president, Zine el-Abidine Ben Ali, was given haven in Saudi Arabia. Former Yemeni President Ali Abdullah Saleh and his family received a "get out of jail free card" for crimes committed in suppressing the opposition in Yemen. There is growing talk of a similar immunity deal to induce Syria's Assad to leave power. This could create a regressive spillover effect regionally and beyond.

The qualitative headway that has occurred in enforcing human rights through criminal justice would have been unthinkable even 10 years ago. Yet, the progress is fragile. Clear-eyed realism is needed to see the obstacles and opportunities for justice as they are. At the same time, that realism should be steeled by an optimism grounded in a sense of the distance already traveled. Every advance in the construction of the architecture of international justice went against the prevailing conventional wisdom of the moment. A shift of tectonic proportions has taken place, but the road ahead remains steep and is lined with challenges.  

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