Source: The Critique
By Professor Jovana Davidovic (University of Iowa)
September 13, 2016
This article is part of The Critique’s September/October 2016 Issue “The Bright Continent: Illuminating The Challenges, Opportunities & Promises Of A Rising Africa”.
The International Criminal Court (ICC) has been in existence since 2002, when the 60 ratifications needed for the Rome Statute (its founding treaty) to enter into force, were finally reached. The ICC was created on the heels of and in light of the successes and more importantly failures of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). But the need for a permanent court to address the worst of crimes has been considered since WWI, and was earnestly taken up after WWII when the International Law Commission (ILC) was tasked with seriously considering the formation of a permanent international tribunal. The ILC found that such a tribunal would be both possible and desirable and could play a significant role in the repression of the worst of crimes. A number of factors, including the Cold War, resulted in the idea of an international tribunal being tabled for a few decades, but in the late 1980s and early 1990s the idea was picked up again and after a number of drafts and negotiations the Rome Statute was signed in 1998 by over 120 states.
ICC prosecutes perpetrators of crimes against humanity, war crimes and genocide, on the principle of complementarity.[i] The crime of genocide is characterized by the intent to destroy a national, ethnic, religious or racial group by killing its members or by other means. The crimes against humanity are serious violations committed as a part of a large-scale attack against civilians and they include murder, rape, enslavement, torture, deportation and similar grave breaches of human rights. War crimes are grave breaches of the laws of war and the Geneva conventions, and they include killing and targeting civilians, use of child soldiers, attacks on civilian infrastructure, mistreatment of the POWs, etc. Such crimes, many believe, ought never to go unpunished. In fact, ending impunity for the worst of crimes is, often seen as, the primary and sufficient reason to support a permanent international tribunal. Other, often heard, reasons to support a permanent international tribunal include the establishment of a robust international rule-of-law and its role in sustainable peace and security.
It should be noted that ending impunity for the worst of crimes and establishing the international rule-of-law are not the same as direct deterrence. Whether or not and to what extent the ICC can deter future perpetrators is an important question, but should not be seen as the entire instrumental value of ending impunity and establishing the international rule-of-law, which are the immediate/proximate goals of the ICC.
The ICC can obviously only accomplish the aims for which it was created if it has the support of the majority of states. Social legitimacy and public support is incredibly important for any institution, but it is crucial for a court like the ICC. The relationship between political legitimacy on the one hand and social legitimacy on the other is not always straightforward. While it is usually the case that one need not be politically legitimate (actually legitimate) to achieve social legitimacy, it is most of the time the case that one does need social legitimacy to achieve political legitimacy. This is because for political legitimacy an institution needs to not only meet some straightforward procedural or substantive principles (like for example respecting human rights), but it also needs to be effective and efficient in its working. And for that, an institution most often needs social legitimacy and support of those whom it is meant to serve. The ICC has not always enjoyed such support. In fact, the ICC has been under attack almost from the beginning, but it has recently come under most serious attack from two directions: one which focuses on the fact that the ICC primarily prosecutes and investigates African perpetrators for crimes in Africa, and the other, which focuses on the victim participation regime. I focus on the first of those worries here. The ICC has so far opened a number of investigations and prosecution in ten different situations- nine of which are situated in Africa- including the Democratic Republic of the Congo, Uganda, the Central African Republic, Darfur, Sudan, Kenya, Libya, the Côte d’Ivoire, Mali and the Central African Republic. In those situations ICC has indicted 39 people so far- all of which are from Africa[ii].
In light of those numbers, the worry that obviously emerges is that the ICC is unfair, or that it is an oppressive tool; a tool that the developed world uses to control the developing nations. The critics often argue that the ICC is just another way in which the Global North oppresses the Global South. The critics’ claims seem quite plausible. Given the number of atrocities that the more militarily and politically powerful countries have committed since 2002 that the ICC has remained silent on, in spite of the absence of domestic prosecutions, it certainly seems like the ICC might be unfair, hypocritical and illegitimate and should not garner our support.[iii] Much of the criticism is coming from political leaders and scholars from Africa who feel that this dual standard is unfair. Many have lost faith in the court. Some argue that the court is “a “cabal” of wicked Western powers.”[iv] The future of the court is starting to look less bright as some African countries have even threatened to walk away. This is particularly worrisome since African leaders were some of the loudest proponents of the international tribunal, being particularly moved by the Rwandan genocide and its aftermath.[v] [See Kassner for a discussion of transitional justice in Rwanda].
That Africa’s support for the court is significantly wavering is not only the result of the fact that almost all the cases being investigated are in situations in Africa, but also of the ICC prosecuting a number of presidents of African countries, including the Sudan and Kenya. Omar al-Bashir, the president of Sudan was indicted in 2009 for crimes committed in Darfur.[vi] The war in Darfur has been ongoing since 2003 and has resulted in hundreds of thousands of civilian victims. Amnesty International and other international organizations have argued that a great number of grave breaches of international law occurred during the Darfur conflict, including ethnic cleansing, rape, torture and other war crimes and crimes against humanity.[vii] Nonetheless, the indictment and the arrest warrant issued for al-Bashir led to outrage among some countries. Two separate issues fueled the outrage. First, many argued that heads of state should be immune from prosecutions. Second, given that Sudan was not and is not a signatory of the Rome Statute or a member state of the ICC, many questioned whether the ICC has the authority to indict al-Bashir. Al-Bashir and his supporters, unsurprisingly, have argued that the ICC has no authority over non-member states and its citizens. The U.N. disagrees. This is because a case can come before the ICC in a number of ways. The most common ways are for the prosecutor to start an investigation in a situation or for a country to refer a case to the ICC (if it is unable to prosecute itself), but the United Nations Security Council can also refer cases to the ICC. In the case of al-Bashir it was the Security Council that had forwarded the case to the ICC. In such instances, the state need not be a signatory of the Rome Statute for the ICC to claim jurisdiction.[viii]
The case against now-Kenyan president Uhuru Kenyatta further angered those that already felt disenfranchised by the ICC. In 2010 prior to him becoming the president he was investigated for crimes against humanity that allegedly took place during the 2007-2008 crisis that followed the 2007 elections in Kenya and led to some 1300 civilian deaths. Kenyatta was charged with crimes against humanity, including murder, deportation or forcible transfer of population, rape, persecution and other inhumane acts. Kenyatta’s case was eventually closed due to insufficient evidence, but his case angered many in Africa and elsewhere. Kenyatta called the court the “toy of declining imperialist powers.”[ix] Echoing Kenyatta and speaking on the apparent dual standard regarding ICC prosecutions, the Ethiopian foreign minister said “the ICC is no longer the court for all.”[x] The number of voices arguing against the ICC has been growing. Many suggest that prosecutions of Western heads of state for crimes in the Middle East or Vladimir Putin for war crimes in Chechnya and Crimea could never take place. They often go on to say that that makes the court both irrelevant and illegitimate. After all, as one prominent critic of the ICC has argued, “the test for the rule-of-law is that the law should apply to everyone and particularly the most powerful…[otherwise] it is not the rule-of-law, but the rule of the powerful.”[xi]
In addition to the above worries which are undermining the support for the ICC, the fact that in some instances (like for example in the Kenyatta case) a case might get dropped because of lack of support from the relevant parties in gathering evidence and access to witnesses further makes the court appear incompetent and unable to do that for which it was built- ending impunity for the worst of crimes and establishing or strengthening the international rule-of-law. Further yet, the court has been, some argue, incredibly inefficient, spending billions of dollars and so far convicting only two perpetrators.[xii]
The proponents of the Court, in response to the above criticism, point out that from the nine African situations under investigation, five have been referred to the ICC by African governments themselves; two others have been referred to the court by the United Nations Security Council (Sudan and Libya).[xiii] In fact, even the Kenyatta case was agreed to by the Kenyan government at the time. Proponents further point out that the current chief prosecutor of the ICC, Fatou Bensouda, is Gambian. They also point out that a number of active preliminary examinations are of European, Asian and Central American countries, including Afghanistan, UK, Iraq, Colombia and others. Ukraine has for example accepted court’s jurisdiction to examine the crimes on its territory. What is really needed now, proponents of the Court argue, is patience.[xiv] I agree.
I think that the worries about the legitimacy of the ICC in light of its focus on (or as some would call it ‘obsession with’) African countries are premature and exaggerated, albeit something that the ICC must deal with.[xv] I have three separate reasons for thinking these worries are premature and exaggerated.
First, the ICC is, in legal time-scales, an incredibly young institution. It has been around for only 14 years and has since investigated or prosecuted only a limited number of cases. This is in part because these are massive cases and prosecuting them requires a lot of time. The immensity of these cases is a natural by-product of the types of crimes being prosecuted by the ICC. These crimes often require showing a pattern of behavior, which in its nature requires a robust and long-term evidence gathering process. In addition, in many instances, a case gets referred to the ICC exactly because the state referring it is unable to prosecute it due to a lack of resources or access to witnesses and evidence. Those same obstacles in such cases are also present for the ICC. In addition, the importance and visibility of these cases ensures that the Prosecutor must leave no stone unturned. After all, if one of the primary proximate aims of the ICC is establishing the international rule-of-law then ensuring a fair prosecution is essential. Furthermore, the ICC, for better or worse, sees victim participation as an essential tool for some of its secondary aims like restorative justice and reconciliation. This in turn has led to thousands of victim participation applications to go before the court at each stage of the proceedings. For example, just in the first three cases and by 2011, the court received over 9,000 victim participation applications.[xvi] The victim participation regime has contributed to the slowing of the process and the cost of the proceedings. For example, unlike in most common law jurisdictions, victims can directly participate in the ICC prosecutions. Victims can make statements at the beginning and end stages of the proceedings (i.e. make opening and closing statements), give observations in decision on whether to proceed with the case, present views in considering what charges should be brought, as well as ask questions of witnesses and experts giving evidence or the accused.[xvii] All of this means that the court has done (justifiably) too little at this point to be called illegitimate or hypocritical. The youth of the court and the speed of the court (which I have argued is mostly reasonable) should give us pause in abandoning the project altogether or calling it a failure. It would be too soon to call even a regular domestic court that was only a decade old a failure, but a court dealing with particularly complicated cases, which are by definition cases no one else could or would prosecute, and does so via partly unfamiliar process (like the victim participation regime) shouldn’t be abandoned just yet. Whether or not the court is hypocritical and the tool of the “imperialist west” is yet to be seen. If it turns out to be either- it will certainly not be able to strengthen the international rule-of-law and it should be abandoned. But if the court succeeds it will play an incredibly important role in the global society.
Second, then, one must consider the aims of this court and their relevance and ask whether the injustices whether real or perceived are outweighed by the benefits the court can provide, assuming it succeeds to some extent. The most obvious benefits that the ICC can and will bring include a robust international law jurisprudence and helping end or limit the impunity for the worst of crimes. Let me take each of these benefits in turn. First, regarding building up a meaningful international criminal jurisprudence; in each case that the court considers aspects of international humanitarian laws are being clarified and elaborated on- and with each such clarification, the laws are more likely to be able to govern state and individual behavior. But clarity is not the only benefit of a growing and expanded jurisprudence on these issues. Visibility of the laws is also increased, thus likely adding to their ability to govern behavior. Possible contradictions in laws are being resolved, etc. Growing international criminal jurisprudence can also help regional and domestic courts. All of this can in turn help laws provide guidance and in that way ensure peace and security. Second, regarding ending impunity for the worst of crimes there is little that needs to be said. Since the ICC only prosecutes cases that are grave breaches of international law and that are otherwise left unprosecuted- it follows that each such case not falling through the cracks helps limit or end impunity for the worst of crimes. That is both good in itself, but is also an instrumental good- in as much as it aids in establishing long-term global peace and security.
Third, in considering whether to support the ICC or not, one must or should consider the alternatives to the ICC. The ICC is envisaged as a complementary court, in other words it only prosecutes cases that the states cannot or will not prosecute. It does so only for a small subset of all crimes, namely those crimes that are so outrageous that they shock the conscience of humanity. In other words, it prosecutes those crimes, which if left unprosecuted would result in grave wrongs (intrinsically and instrumentally). If that is the case then the question should not be whether to abandon the ICC, but what the alternatives to the ICC are. There are at least three alternatives to consider: they include a) regional courts, b) ad hoc (hybrid) courts and c) universal jurisdiction.
a) Regional courts have been shown to work really well in many of the arenas where they operate. Many of the regional regimes deal with peacetime human rights abuses, and provide adjudication for cases that fall under human rights law (as opposed to humanitarian law). Their benefits are obvious- they usually result from agreements between states that otherwise have close ties (often because of cultural or geographic proximity) and have close economic ties that incentivize participation in the regime. The relatively smaller systems also allow for more direct and more frequent participation in the governing and operating of the courts, thus providing more social legitimacy and transparency. Nonetheless, in thinking of the regional courts as replacements for a permanent international tribunal, it is likely that the regional courts would deal with much the same problems as the ICC. That is certainly the case if the regional regimes attempted to aim at the same goals as the ICC- namely ending impunity for the worst of crimes and enforcing international humanitarian law. First, the most successful regional systems (like for example the European Court of Human Rights) operate in conjunction and in parallel with economic regional systems and primarily deal with peacetime human rights violations. Second, while the regional systems would clearly add to the transnational jurisprudence, they would be less likely to support a robust claim on ending impunity for the worst of crimes, unless there was a supra-regional regime that provided a safety net for the cases that the regional systems failed or were unable or unwilling to prosecute. Third, the worries about jurisdictional legitimacy would remain. In those cases where warring parties belonged to different regional regimes there would be a genuine question about who ought to prosecute the perpetrators (which regional regime). In cases when the warring parties belonged to the same regional regime it would likely be the case that individual states find themselves in a position where they are able to exert more significant pressure than they would in the ICC (in virtue of the fact that there would be fewer states in each regime). In other words, we have little to suggest that worries about politicizing of the courts would not remain. For all of these reasons, it is unlikely that regional courts would be less problematic or more successful than the ICC.
b) Similar things can be said about ad hoc courts as an alternative to a permanent tribunal. Ad hoc courts like the ICTY and the ICTR and their failings were exactly what intensified the calls for a permanent international tribunal. In spite of worries about legitimacy, incredibly high costs, unclear justification for the inclusion and exclusion of certain laws, ICTY and ICTR provided a service that was absolutely necessary, but they did so clumsily, as almost everyone agrees now. All those problems that plagued ICTY and ICTR are likely going to plague any ad hoc court. Such courts are almost always incredibly expensive to create and operate and they move slowly (for very much the same reasons as the ICC). Ad hoc courts are, furthermore, likely to face claims of illegitimacy, and rightly so. The authority of ad hoc courts is always going to be brought into question. They are because of that more likely to be made irrelevant or unable to proceed by obstructionism by one or the other side, making them appear even less legitimate. This for example happened with the East Timor Special Panels, which struggled with access to the accused perpetrators and evidence as well as properly trained lawyers.[xviii] For all of these reasons ad hoc courts are not likely to remedy any of the problems that the ICC is facing now.
c) The final alternative to the ICC would be something akin to universal jurisdiction. Universal jurisdiction permits states to prosecute perpetrators of some of the worst crimes independent of where such crimes occurred, to whom and by whom. Given that universal jurisdiction is highly controversial – there are good reasons to think it should be (as it has been) reserved for jus cogens[xix] By jus cogens norms, scholars usually mean the kinds of norms that are “of such transparent bindingness that no individual can fail to understand that he or she is bound by them.”[xx] A common example is the crime of genocide. The sort of reasoning that underpins calls for universal jurisdiction is similar to that which underpins calls for a permanent international tribunal- namely that justice and a robust international rule-of-law require that the worst of crimes not be left unprosecuted. That being said note that many of the crimes that the ICC prosecutes clearly do not fall under anybody’s understanding of a jus cogens crime. Many of the crimes that the ICC prosecutes are nonetheless the type that shocks the conscience of humanity and the type that if left unprosecuted might undermine international security and threaten peace. That means that even though the ICC and universal jurisdiction might have in small part a similar foundation, the set of crimes they purport to have legitimate authority over are different. That is because the authority of the ICC arises not from the nature of those crimes alone, but also from the consent of the member states. Interestingly, and as a further reason to worry about universal jurisdiction as an alternative to the ICC, if anything has given rise to claims of imperialism and illegitimacy it has been the attempts to prosecute under universal jurisdiction. Consider for example, the famous Arrest Warrant Case. In 2002 Belgium issued an arrest warrant for the Congolese Minister of Foreign Affairs Abdoulaye Yerodia Ndombasi in an attempt to prosecute him under Belgium’s new universal jurisdiction laws governing war crimes, crimes against humanity and genocide.[xxi] In the Arrest Warrant Case, which was brought before the International Court of Justice (ICJ) against Belgium, the Court decided against Belgium, albeit not on the issue of universal jurisdiction (but immunity). That case faced wide criticism because of the fact that Belgium, the same imperial power that once ruled Congo, claimed jurisdiction over crimes that failed all common jurisdictional tests.[xxii] So while universal jurisdiction and a permanent court have partly overlapping justification, they also face some of the same problems. Universal jurisdiction of course faces many more problems regarding legitimacy. After all, what exactly could explain why Belgium would be allowed to prosecute a Congolese citizen for crimes against Congolese people. The ICC, comparatively, has fewer problems with justifying its claims to legitimacy. The ICC has 124 member states and a close relationship with the U.N. Ultimately, it seems like universal jurisdiction could not replace the ICC for a great number of cases or crimes. It would also face much of the same worries about being an imperialist tool— after all, only the most powerful states would be able to actually prosecute those they indict. And probably most importantly, there are good reasons to think that if widely used, universal jurisdiction could undermine peace.
My claims above- first, that the criticism of the ICC is premature, second, that the ICC can play an incredibly important role for peace and security and third, that the obvious alternatives to it are flawed- are not meant to imply that the worries and problems that the ICC is facing are not real or that they might not one day play a role in the demise of the ICC. After all, as I have suggested in a number of places, if the ICC is not seen as legitimate it will not be able to effectively play its very important role. Social legitimacy, as I have argued, is closely related to effectiveness and efficiency of an institution. In fact, social legitimacy is a necessary tool for success of any institution. In other words, whether or not the critics of the ICC are right about the current state of ICC’s political legitimacy, if they become too loud the ICC might lose whatever social legitimacy it enjoys now and at some junction become ineffective. If that time ever comes – when the ICC becomes ineffective and inefficient because it lacks support – it will also actually become politically illegitimate. I think we have good reasons to think that time is not yet here.
However, the threat of the growing criticism means that the ICC must invest time and money in making its role and process more visible. The outreach arm of the ICC, which falls under its Registry might consider a broader mandate, which would include informing the relevant public of its processes and advocating for the relevance of the Court. Currently the main aspect of the outreach that the Registry is engaged in is “ensuring that affected communities in situations subject to investigation or proceedings can understand and follow the work of the Court through the different phases of its activities.”[xxiii] The majority of the outreach I recommend is left upon various non-profits and groups of non-profits like the Coalition for the ICC, which spend most of their energy advocating for their various visions of the ICC. The ICC ought to do a better job explaining the role of the ICC and justifying its prosecutions to the relevant state and international actors.
Footnotes & References
[i] The principle of complementarity requires that the ICC only prosecute crimes of the above kind when domestic courts can’t or won’t prosecute them in a timely manner. Also, as of 2017, the ICC will also be able to prosecute crimes of aggression.
[ii] Throughout this article there will be times when statistics or numbers of current cases are being offered. Those are obviously relative to the time when the article is written (Aug 2016).
[iii] This includes the treatment of prisoners in the Iraq War and Guantanamo, the war in Iraq itself, the attacks on police stations during Israel’s Operation Cast Lead, etc.
[iv] http://www.economist.com/news/international/21635470-international-criminal-court-struggling-justify-itself-amid-accusations-bias
[v] Of the 139 signatories, 34 are African.
[vi] He was indicted on five counts of crimes against humanity and two counts of war crimes.
[vii] In issuing the arrest warrant for al-Bashir, the ICC argued that the government forces of Sudan led by al-Bashir committed not only war crimes and crimes against humanity, but also genocide.
[viii] Obviously whether or not this should be the case is up for debate.
[ix] Addressing fellow heads of state at the meeting of the African Union, 2012. http://www.capitalfm.co.ke/news/2013/10/icc-toy-of-declining-imperial-powers-uhuru/
[x] http://mgafrica.com/article/2015-11-19-dont-test-us-african-union-tells-icc-as-court-prosecutor-says-bloc-warning-not-grounded-in-reality
[xi] Professor Mahmood Mamdani in an interview with Aljazeera, available at http://www.aljazeera.com/programmes/upfront/2016/03/icc-biased-african-countries-160311140721768.html
[xii] The Lubanga and Katanga cases. The Bemba case is as of now (Aug 2016) still in the appeals process.
[xiii] http://www.economist.com/news/international/21635470-international-criminal-court-struggling-justify-itself-amid-accusations-bias
[xiv] Ibid.
[xv] How exactly it ought to deal with them will partly emerge out of examining these worries closer and partly from what sort of damage such worries cause to the ICC.
[xvi] For more see Christine van der Wyngaert on Victim Participation, available at http://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=1102&context=jil
[xvii] International Criminal Court booklet on victim participation, for more see https://www.icc-cpi.int/NR/rdonlyres/8FF91A2C-5274-4DCB-9CCE-37273C5E9AB4/282477/160910VPRSBookletEnglish.pdf
[xviii] For more, see Jovana Davidovic “Transitional Justice and Jus Post Bellum in Timor-Leste,” in Morality, Jus Post Bellum and International Law, eds. Larry May and Elizabeth Edenberg, Cambridge, U.K.: Cambridge University Press, 2012.
[xix] The central question about universal jurisdiction is under which circumstances and for which crimes (if any) can a state or an international court prosecute an individual who is neither their national (or national of the member state), nor had committed the crime on their territory, nor against their citizens, nor against their vital interests. The common justifications include “(a) the territoriality principle, which gives states jurisdiction over crimes committed in their territories, as well as crimes committed elsewhere with effects in their territories. (b) the nationality principle, which give states jurisdiction over crimes committed by their own nationals. (c) the passive personality principle, which gives states jurisdiction over crimes committed against their nationals. (d) the protective principle, which gives states jurisdiction over crimes committed against vital government interests-crimes like espionage…” David Luban, “Fairness to Rightness: Jurisdiction, Legality, and the Legitimacy of International Criminal Law,” in Philosophy of International Law, eds. Samantha Besson and John Tasioulas, Oxford: Oxford University Press, 2010, 570. For more on universal jurisdiction and jus cogens crimes see Jovana Davidovic, “Universal Jurisdiction and International Criminal Law,” in New Philosophy of Criminal Law, eds. Chad Flanders and Zach Hoskins, Rowman and Littlefield, 2015.
[xx] Larry May, Crimes Against Humanity: A Normative Account, Cambridge Studies in Philosophy and Law , Cambridge, U.K.: Cambridge University Press, 2004, 64.
[xxi] Arrest Warrant Case, International Court of Justice, 11 April 2002, available at http://www.icj-cij.org/docket/index.php?p1=3&p2=3&case=121&p3=4.
[xxii] See footnote xix.
[xxiii] https://www.aba-icc.org/about-the-icc/structure-of-the-icc/
