Ingrid Burke, RAPSI

Fifteen years ago today, the adoption of the Rome Statute of the International Criminal Court (Rome Statute) revolutionized the field of international criminal law by establishing the first permanent, treaty-based international tribunal armed with the power to prosecute the world’s most grave and abysmal atrocities.

Over the course of the time that has passed since, as the court has materialized and begun to launch investigations and prosecutions, it has predictably undergone a wide breadth of triumphs and tribulations. To better understand the ups and downs the court has endured since dreams gave way to reality with the adoption of the Rome Statute, RAPSI consulted two world renowned experts: Professor William Schabas, professor of international law at Middlesex University London and author of The International Criminal Court: A Commentary on the Rome Statute, among numerous other publications, and Professor Peter Erlinder, professor of law at William Mitchell College of Law, former Lead Defense Counsel at the International Criminal Tribunal for Rwanda (ICTR), and Founding Director of the International Humanitarian Law Institute, who featured prominently in international headlines during a period spent in a Rwandan prison in 2010 for his ICTR defense work.

Background on the ICC

Former UN Secretary General Kofi Annan famously described the imperative of establishing an international criminal court in terms of the protection of innocent victims of distant wars, stating: “In the prospect of an international criminal court lies the promise of universal justice. That is the simple and soaring hope of this vision. We are close to its realization. We will do our part to see it through till the end. We ask you . . . to do yours in our struggle to ensure that no ruler, no State, no junta and no army anywhere can abuse human rights with impunity. Only then will the innocents of distant wars and conflicts know that they, too, may sleep under the cover of justice; that they, too, have rights, and that those who violate those rights will be punished."

The Rome Statute laid out the legal framework for the establishment of such a court. Initially adopted by 120 states on 17 July 1998, the Rome Statute entered into force after having been ratified by 60 states in July 2002.

The preamble of the Rome Statute states that “the most serious crimes of concern to the international community as a whole must not go unpunished.” Toward this end, the treaty establishes the crimes over which the ICC may exercise jurisdiction, as well as procedural and logistical details. Crimes falling within the scope of the ICC’s jurisdiction include genocide, war crimes, and crimes against humanity.. All were defined in detail, and the court was thus entitled to exercise jurisdiction over them accordingly.

The crime of aggression was initially included in the Rome Statute, but was not fleshed out until 2010, when a Kampala review conference culminated in the adoption of a resolution amending the Rome Statute in order to include a definition of the crime and to establish conditions for the court’s exercise of jurisdiction over such. According to official records released at the time, the court’s actual exercise of jurisdiction over the crime of aggression is subject to a decision to be made after 1 January 2017 by the same majority of states required for the amendment’s initial adoption.

The Rome Statute empowers the ICC Prosecutor to initiate investigations proprio motu, or on his or her own initiative, “on the basis of information on crimes within the jurisdiction of the Court.” If after analyzing the seriousness of this information the prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she may request the authorization of a pre-trial chamber to launch an investigation. Crimes may also fall within the court’s jurisdiction in accordance with the Rome Statute in situations where one or more such crime appears to have been committed, and where the situation was referred to the prosecutor by either a state party or the UN Security Council.

To date, 18 cases have been launched from eight situations brought before the court. These situations have been confined to the African continent, having occurred in: Uganda, the Democratic Republic of Congo, Sudan (Darfur), the Central African Republic, Kenya, Libya, Cote d’Ivoire, and Mali. According to the ICC’s website, preliminary investigations are presently underway into situations in a significantly more diverse swath of the globe, including Afghanistan, Georgia, Guinea, Colombia, Honduras, Korea, and Nigeria.

The ICC’s place in the legacy of International Criminal Law

When asked what it was about the legacy of international criminal law that necessitated the creation of the ICC in the first place – both of our experts pointed to the politicization of international justice.

Schabas explained that a permanent court such as the ICC had been dreamt of for decades, describing the temporary and ad hoc tribunals such as those established to prosecute atrocities committed during the 1994 Rwandan genocide and the wars that engulfed the Balkans during the 1990s as stepping stones toward the attainment of this goal. He added that concerns of judicial bias in the context of international justice gained steam thanks to the debate of Security Council reform. In his words, “Many States wanted to remove the control of the Security Council over the agenda of international justice. In order to win that argument, they claimed that the proposed Court should be entirely independent of political influence. But that has proven to be unrealistic. Politics are inherent in international justice. In the past, the political direction of international justice was left to the Security Council, and that was and is unacceptable. But instead of replacing the Council's role with another body, in terms of political direction, the Court is founded on the myth that it is apolitical.”

Erlinder pointed to a history of international criminal law marred by a trend toward victor’s justice, stemming from the theory that the field lost its initial focus on sovereignty. In his words, “The legacy of international criminal law from the 17th century Treaty of Westphalia following the 30-year war to the UN Charter following war in Europe and dropping atomic bombs was the concept of the sovereignty of all nations, small and large. Criminal prosecution of individuals by an international body is the antithesis of national sovereignty and creates a supra-national ‘sovereign’ which was never contemplated in the UN structure.”

He pointed specifically to the post World War II tribunals, such as those in Nuremburg and Tokyo, as having done little to nothing in terms of establishing the practice of ensuring due process and equality before the law for both victors and the defeated.

Although the International Criminal Tribunals for Rwanda and the former Yugoslavia were intended to break the mold of victor’s justice, “this was not to be,” Erlinder explained. He points to the memoir of former UN Chief Prosecutor Carla Del Ponte to illustrate his point, explaining: “According to [Del Ponte’s memoir], the ICTY was captured by NATO/US policy interests; and the ICTR became a vehicle to cover up US support for the cover-up of RPF crimes at the center of the Rwanda genocide. In retrospect, it is possible to see that neither of these ad hoc security council experiments could have taken place had the Soviet Union not collapsed, or had Russia or China been able to exercise veto power as both have in Syria.”

Rising to the challenge?

While both experts pointed to the problem of the politicization of international justice, neither seemed satisfied that the ICC has adequately remedied the issue.

In Schabas’ view, the issue has become exceedingly murky under the ICC’s shadow. When asked whether he felt that the ICC had successfully addressed the issue of political influence in the international criminal sphere, Schabas responded, “Not at all. It has made everything even more mysterious. By comparison, Security Council domination was marvellously transparent. What we have now is a Prosecutor who makes the strategic decisions about the targets of the investigations and prosecutions and who denies that there is any political influence at all. An analysis of these decisions shows that in fact the Prosecutor does have a political perspective on the world. That is hardly surprising. But where does it come from? That is what is today unacceptable about the Court. The decisions about prosecutions are justified using vague and malleable notions like 'gravity'.”

Erlinder expressed a similar degree of skepticism, noting that no international body exists in an international political vacuum. He contrasted the influence of the US with that of less powerful nations, explaining: “At the time of the 30-years war, France’s Richelieu famously said, ‘powerful countries (and their leaders) are always right….’ The concept of national sovereignty advanced by Hugo Grotius and the UN Charter was supposed to help set that right. Until all countries have equal power, or all leaders are treated as if that were true, Richelieu will be correct.” He added that an easy solution would be the prosecution of “a well-known war criminal president or prime minister from a NATO country.”

Successes and failures

When asked what, in his view, constituted the ICC’s greatest success and its greatest failure, Schabas responded, “The greatest success is obtaining 122 ratifications of the Rome Statute, and succeeding in adopting the amendments on [the crime of aggression] in 2010. The greatest failure or inaction is the refusal to prosecute crimes committed in Palestine.”

Asked the same question, Erlinder replied, “I think the success is mainly raising the idea that our species has agreed that there [are] norms of conduct to which civilization holds national leaders, no matter how grand they consider themselves, or how vast they consider their own power. The greatest failure is that US presidents can sleep every night, knowing this does not apply to them.”

A question of “race-hunting,” or of influential friends

It was widely reported in late May that African Union (AU) chairman and Prime Minister of Ethiopia Hailemariam Desalegn accused the ICC or racism. He was quoted by Reuters as having told reporters at the end of the AU summit in Addis Ababa: “The intention was to avoid any kind of impunity but now the process has degenerated into some kind of race-hunting.”

Asked about the veracity of the sentiment, our experts both pointed to an issue more subtle than overt racism: that of having well-positioned friends.

Schabas explained: “The fact that the Court seems obsessed with African situations does not make it a racist court. If the Court had ignored Africa, it would have been accused of racism too. Charges of racism do not help to understand the Court's selection of priorities for prosecution. It is focused exclusively on Africa because it is afraid to go elsewhere. It receives favourable signals from countries like the US, who are happy to see it confined to Africa.”

Erlinder asserted, “It is certainly true that all of the defendants at the ICC have been African which, in part, has been because the ICC has focused on African conflicts. But why is that, instead of Iraq, Palestine, Syria, Afghanistan, Pakistan, even the Caucuses? The answer is the UN Security Council, or course.” He explained that ICC defendants tend to be those lacking sponsors on the Security Council, adding, “This is also the reason .... NATO was not prosecuted for its crimes at the ICTY. The ad hoc tribunals and the ICC are, according to the observable results, designed to create impunity, as politically required.”