Ross Costigane
Word Count: 2,192 (Excluding Bibliography and Paragraph Headers)
This blog post critically examines the ICC. It will provide a historical background of the ICC’s creation dating from WW1 to the various humanitarian disasters in the 1990s before moving to examine the structure of the ICC itself and how it operates globally. It then examines the ICC’s overall record and attempts to demonstrate that as a global institution, the ICC is extremely flawed and falls victim to realist realities concerning the ICC lacking enforcement capabilities of its own and being entirely dependent on the cooperation of states in order to function, rendering it susceptible to extensive corruption and politically-motivated and selective enforcement.
The History of International Justice
Traditionally it was assumed – owing to realist principles about the lack of an international ‘arche’ and concepts of sovereign immunity, that state leaders or similar individuals could not be prosecuted for their actions unless on a domestic level. This changed with The treaty of Versailles following WW1, which represented as Brown (2019:218) argued, “a straw in the wind – but a significant straw” in the origins of international justice, with the Kaiser being charged with the crime of aggression and through various German soldiers being charged with carrying out war crimes within France and Belgium.
The Nuremberg and Tokyo trails following WW2 would likewise be revolutionary in the development of international justice through establishing that statesmen, officials, state leaders, politicians as well as associated important business and industrial figures were able to face international justice. Said trials were also significant in establishing the charges of crimes against humanity, war crimes, crimes against the peace and the conspiracy to commit said crimes. Whilst said trials arguably did not go anywhere near far enough in prosecuting those responsible for the horrors of WW2, they established the foundation for subsequent international trials.
Whilst some semblance of international justice was thus established – especially within Article 6 of the 1948 Genocide Convention, Cold War politics ensured the formation of any sort of international justice mechanisms were pushed aside.
The first proposals for an international court would instead come in 1989 from Trinidad and Tobago – who primarily devised it to tackle global drug trafficking, but the Rwandan Genocide and Yugoslav wars interrupted these efforts, but also proved crucial in the ICC’s development through the respective ‘ad-hoc’ tribunals created following both humanitarian catastrophes.
The International Criminal Tribunal for the former Yugoslavia – ICTY
On the 25th of May 1993, the UNSC passed Resolution 827, creating the ICTY at the Hague to prosecute MACs carried out during the Yugoslav wars. By the time proceedings concluded in November 2017, a total of 161 individuals were indicted and 83 were convicted. The ICTY was significant in representing the first time an acting head of state – Milošević, was charged with counts of Genocide and War crimes.
The International Criminal Tribunal for Rwanda – ICTR
On the 8th of November 1994, the UNSC passed Resolution 955, creating the ICTR to deal with those responsible for the Rwandan Genocide and under Resolution 977, the tribunal was established in Arusha in 1995. By the time proceedings concluded in December 2015, 93 individuals were indicted and 83were convicted. The ICTR was similarly significant, representing the first trial that held media figures responsible and defined rape as a punishable mass-atrocity crime
Creation of the ICC
It was found these ‘ad-hoc’ tribunals were however, constrained. They were extremely costly to organise – costing $2 Billion and $1.5 Billion for the ICTY and ICTR respectively, and were often accused of inefficiency. These failures provided the impetus to create a permanent international court and after years of drafts, ideas and proposals, from June to July 1998, 160 states, over 30 International governmental organizations and over 230 NGO’s met in Rome to draw up a stature for an International Criminal Court and on the 17th of July 1998, the ‘Rome Statue of the International Criminal Court’ was created and following 60 ratifications, was officially adopted on the 1st of July 2002 and the ICC was established.
Overview of the ICC
As an international organisation, the ICC carries out two primary functions.
- The ICC encourages states to universalise domestic laws to prohibit the four internationally recognised mass atrocity crimes – MAC’s, crimes of aggression, war crimes, genocide and crimes against humanity.
- The ICC provides the legalistic structure and framework to prosecute those who have committed MAC’s. In this regard the ICC is similar to the doctrine of ‘R2P’ in so far as it is ‘narrow but deep’ and therefore, whilst the ICC only prosecutes MAC’s, the prosecution of said crimes is done on a globally universalist basis.
In carrying out these tasks, the ICC as an institution is intended to be ‘complimentary’ to domestic legal and court systems, not a replacement. Therefore, the ICC is seen as a ‘court of last resort’ – possessing jurisdiction only when states cannot or are unwilling to prosecute individuals who have committed MACs.
As specified by Article 13 of the Rome Stature, cases can be referred to the ICC in three ways.
- The Security Council can refer cases.
- States which have ratified the Rome Stature can refer cases.
- The ICC’s prosecutor – with approval from the ICC’s pretrial chamber, can refer cases.
It is crucial to acknowledge however that the ICC, similar to other international institutions, possesses no enforcement capabilities and therefore, is reliant on the cooperation, goodwill and support of states to operate. This, as the following section demonstrates, proves fatal to the ICCs functioning.
ICC Record
Despite at its peak consuming over 10% of the UN’s total budget, as of March 2022, the ICC has only managed to indict 45 people. Far less than the ICTR and ICTY, despite the ICC’s global reach.
Ongoing ICC Procedures: 19
Completed ICC Procedures: 26
The ICC’s record is thus, less than impressive. The following section will outline some of the reasons why.
A Colonial Institution?
A frequent critique of the ICC – particularly from the global south, concerns it being a colonial-esque institution that disproportionally targets and bullies states in the global south – particularly within Africa, whilst ignoring western war crimes and atrocities.
Therefore, many African states that have ratified the Rome Treaty like Burundi, South Africa, Namibia and Kenya have repeatedly threatened to leave – with Gambia doing so in October 2016, with many in the global south instead arguing a international criminal court dealing with each respective continent is a better idea.
This critique however does not withstand scrutiny. Whilst it remains the case that the majority of the ICC’s work has been Africa-focused, the numbers of indicted and convicted individuals from Africa pail in comparison to those from the ICTR and ICTY – which ran concurrently with the ICC and only ceased operations in 2015 and 2017 respectively.
Its important to note that most cases that involved Africa that were referred towards the ICC, were not referred by Western States, but instead from African states and leaders. Thus, rather than showing bias, it shows African states and leaders have been more involved with the ICC than others.
Instead as this blog argues, the primary failures of the ICC – and the primary reason why the ICC cannot function effectively, owe to the fact the ICC lacks ‘teeth’ and is reliant on the co-operation and goodwill of states, rendering it susceptible to politically selective-enforcement, corruption and political manipulation.
ICC Critiques: Great Power Politicking
Instead as this blog argues, the primary failures of the ICC – and the primary reason why it cannot function effectively, owes to the fact the ICC lacks ‘teeth’ and is reliant on the co-operation and goodwill of states in order to function, rendering it susceptible to politically selective-enforcement and manipulation.
This is seen most obviously by the fact the worlds three most powerful states – namely China, Russia and the US, have refused to ratify the Rome Stature and are thus not subject to its jurisdiction. Such opposition largely stems from a general disdain for international laws and institutions as a whole as well as the fact said states have soldiers operating within foreign states and do not wish to be held accountable for crimes they may commit.
The US is a particularly noteworthy example of a state which has opposed the ICC. In Dember 2000, Clinton signed the US to the Rome Stature but would refuse to ratify it and by 2002, Bush informed the UN of the US’s intentions to no longer be party to the Stature and instead began engaging in what scholars like Bosco (2014:177) coined as a “policy of marginalization” via attempts at undermining the ICC’s efficiency, legitimacy and power though discouraging states to join or support the ICC, passing multilateral and bilateral legislation and though various critical public speeches. One noteworthy example of ‘marginalizing’ legislation was the 2002
‘American Service-Members Protection Act’ which severed international assistance and aid to states that did not exempt US personnel from the ICC and “authoris[ed] all means necessary” for rescuing US forces “detained by, on behalf of, or at the request of the ICC”.
Obama would move towards greater co-operation with the ICC, but still refused to ratify the Rome Stature and under Trump, this enhanced co-operation would again vanish. Such attitudes, as scholars like Menon argue, constitute a recurrent trend within US Foreign Policy, as the US demands international laws and justice for everyone except them.
The issue of states such as Russia, China and the US not being party to the Rome Stature is amplified by the fact all three are members of the ‘Permanent Five’ – P5, on the UNSC, thus possessing vast veto power over the UN’s decision-making process and whilst the ICC is not part of the UN, it operates under a UN mandate and the UNSC possess immense influence over the ICC – such as through the referral of cases.
Examining the UNSC and the P5 from a realist perspective, as both constitute political bodies and not legalistic or judicial bodies, decisions and rulings made via the P5 or the UNSC are predominately made on the basis of cost-benefit calculations made in relation to state security and national-interest, with humanitarian concerns, morals or justice pushed aside, with the P5 – usually split into two blocs, regularly vetoing one another whenever it advances their interests to do so.
It is important to note that the ICC has been able to neuter some of the influence of the UNSC via the prevention of any case deferrals if any member vetoes it, the UNSC and P5 still possess immense influence and power over the ICC and thus, as scholars like Menon, Lingsna, Hehir and Bosco argue, have frequently used other means to hamper the effectiveness and reach of the court such as,
- Appointing favourable judges
- Controlling the evidence and intelligence the ICC can access – notably through withholding Satellite or surveillance imagery
- Shielding allies from facing international justice
- Controlling what military and diplomatic support – if any, is given for assisting the ICC in enforcing its decisions
ICC Critiques: Small Power Politicking
Large states are not the only ones who have manipulated the ICC for their own benefit as smaller states have equally done so, owing again to the ICC lacking any enforcement body and being entirely reliant on states to enforce the ICC’s rulings.
Several Rome stature signatories have therefore, whilst referring cases, regularly acted in a self-interested, politically-favourable and selective manner whilst providing assistance towards the ICC. This is typically seen through states referring state enemies, political opponents or rivals towards the ICC, whilst – as Menon (2016:163) argues, “insisting the ICC not cast its wider net and investigate allegations against groups and individuals that they favour” with such behaviour notably occurring within states such as Libya, Côte d’Ivoire, Uganda, Kenya and the Democratic Republic of Congo.
Sometimes this self-interested political manipulation can extend to covering large states. In the case of Libya following the 2011 NATO intervention authorised by the UN under R2P, the various governments within Libya have extensively attempted to prosecute Gaddafi-era high ranking military personnel, officials and government figures via the ICC. However, any investigations into the conduct and war crimes commited by anti-Gaddafi rebel factions, NATO and Gulf forces have been blocked.
ICC Critiques: Has the ICC had much International Impact on the Conduct of States?
The previously mentioned critiques are magnified by empirical research indicating the ICC has had negligible impact on the conduct of states internationally, as since the ICC’s foundation, instances of MAC’s have dramatically increased with states either not party to the Rome Stature or shielded by P5 members, calculating that since international justice and punishment is unlikely to affect them, committing MACs with complete impunity. Whilst research indicates that states party to the Rome Stature are less likely to commit MAC’s, this is generally irrelevant, for it is those states which are not party to it that generally commit MAC’s in the first place and therefore, refuse to be party to the Rome Stature. This point is reinforced through academic research critically analysing the relationship between the ICC’s power and its usage in numerous global conflicts, which has illustrated that rather than serve as an effective deterrent towards MACs, those indicted by the ICC are instead more likely to commit MACs to consolidate their power further.
Career Prospects
Although currently unsure of my exect future career path, I do wish to work at an international organisation and thus, a hypothetical visit to the ICC would be highly beneficial for career prospects for several reasons. First, visiting the ICC would be useful for gaining an educational experience and understanding about the working environment, pace, general setting, philosophy and dynamics of an international organisation – even if on a small scale, as well as acting as a ‘bridge’ between the ‘academic’ world and the ‘real’ world. More active steps could also be taken which would be beneficial for enhancing career prospects such as attempting to create a network of useful contacts within the organisation through attempting to exchange contact details as well as asking officials what paths they took to get where they are and most importantly, what sort of relevant experience, qualifications, volunteering experience or education is necessary both to enter into such an international organization and to enhance the chances of entering such a field.
Bibliography
Appel, B.J. (2016) In the Shadow of the International Criminal Court: Does the ICC Deter Human Rights Violations? Journal of Conflict Resolution, 62 (1), 3-28.
Benyera, E. (2020) How Colonialism’s Legacy continues to Plague the International Criminal Court. The Conversation. Available: https://theconversation.com/how-colonialisms-legacy-continues-to-plague-the-international-criminal-court-142063
Bosco, D. (2014) Rough Justice: The International Criminal Court in a World of Power Politics. Oxford: Oxford University Press.
Brown, C. (2019) Understanding International Relations. 5 ed. London: Red Globe Press.
Cronin-Furman, K. (2013) Managing Expectations: International Criminal Trials and the Prospects for Deterrence of Mass Atrocity. International Journal of Transitional Justice, 7 (3), 434-454.
Cryer, R. (2018) International Criminal Law. In: M.D. Evans, ed. International Law. 5 ed. Oxford: Oxford University Press, pp. 717-742.
Gegout, C. (2013) The International Criminal Court: limits, potential and conditions for the promotion of justice and peace. Third World Quarterly, 34 (5), 800-818.
Goldstone, R.J. (2018) The Pursuit of International Justice. In: T.G. Weiss and R. Wilkinson, eds. International Organization and Global Governance. 2 ed. Oxon: Routledge, pp. 523-545.
Greico, J., Ikenberry, G.J. and Mastanduno, M. (2018) Introduction to International Relations: Enduring Questions and Contemporary Perspectives. 2 ed. London: Palgrave Macmillan.
Hehir, A. (2019) Hollow Norms and the Responsibility to Protect. London: Palgrave Macmillan.
Hurd, I. (2021) International Organizations: Politics, Law, Practice. 4 ed. Cambridge: Cambridge University Press.
Kenny, C. and Norris, J. (2018) International Justice on Trial?: Taking Stock of International Justice Over the Past Quarter Century. Center for American Progress. Available: https://www.americanprogress.org/article/international-justice-trial/
Krcmaric, D. (2020) Empirical Analysis of the Tradeoff between Conflict Termination and Atrocity Deterrence. In: R.H. Steinberg, ed. The International Criminal Court: Contemporary Challenges and Reform Proposals. Leiden: Brill Nijhoff, pp. 152-156.
Lingsma, T. (2017) All Rise: The High Ambitions of the International Criminal Court and the Harsh Reality. Utrecht: Ipso Facto.
Menon, R. (2016) The Conceit of Humanitarian Intervention. Oxford: Oxford University Press.
Mushoriwa, L. (2021) The Immunity Question before the International Criminal Court: Revisiting African Sovereignty and the Colonial Origins of International Law. African Journal of International and Comparative Law, 29 (3), 341-361.
Napela, M. and Powell, J. (2015) The Role of Domestic Opposition and International Justice Regimes in Peaceful Transitions of Power. Journal of Conflict Resolution, 60 (7), 1191-1218.
Nossal, K.R. (2005) Ear Candy: Canadian Policy toward Humanitarian Intervention and Atrocity Crimes in Darfur. International Journal, 60 (4), 15/10/21-1017-1032.
Ochs, K.M. (2015) By Sovereignty of Nature: The Influence of Political Realism on the U.S. and the International Criminal Court. Review of History and Political Science, 3 (1), 1-11.
Ralph, J. (2005) International Society, the International Criminal Court and American Foreign Policy. Review of International Studies, 31 (1), 27-44.
Schneider, L. (2020) The International Criminal Court (ICC): A Postcolonial Tool for Western States to Control Africa? Journal of International Criminal Law, 1 (1), 90-109.
Snyder, J. and Vinjamuri, L. (2015) Law and Politics in Transitional Justice. Annual Review of Political Science, 18 (1), 303-327.
U.S. Department of State (2003) American Service-Members’ Protection Act. U.S. Department of State. Available: https://2001-2009.state.gov/t/pm/rls/othr/misc/23425.htm