The International Criminal Court

‘The tide has finally turned. Today, those responsible for genocide, war crimes, crimes against humanity and other gross violations of international humanitarian law and human rights law are being held accountable. Heads of State and senior officials can no longer hide from justice.’

(UN legal Counsel, Patricia O’Brian on the 10th Anniversary of the ICC).

Discuss.

* (Originally submitted to the University of Leicester, Politics and International Relations Dept. on 20th December 2017)

Introduction

The central thesis of this essay will argue that although there have been significant changes in the way those responsible for international crimes are held accountable today by the ICC, there has yet to be a complete reversal of the failings of past accountability systems to support the assertion that the ‘tide has finally turned.’

In section one I begin with an overview of how the international tribunals prior to the ICC furthered justice while examining the limitations of such accountability mechanisms. Section two will concern the discussion of the powers of the ICC in contrast to those of previous international tribunals and the extent to which the ICC has made a greater contribution to holding Heads of State and senior officials accountable for international crimes. In section three the limitations of the ICC in holding those responsible for international crimes accountable are highlighted to question the proposition that the ‘tide has finally turned’ and that heads of state can ‘no longer hide from justice’. Section four examines whether the ICC’s effectiveness in holding Heads of State and senior officials accountable for atrocities has been enhanced by the Responsibility to Protect Doctrine (R2P). Finally, my conclusion to this essay reiterates the key arguments presented previously that more has to be done before the assertion that ‘the tide has finally turned’ reflects reality.

Analysis: Section 1:  The furthering of justice by international tribunals prior to the ICC.

Ad hoc tribunals such as those of Rwanda, Yugoslavia, Khmer Rouge and Nuremberg were created to try crimes of genocide and crimes against humanity. For instance, ‘The indictment of Milosevic marked the first time in history that a sitting head of state had been charged with crimes against humanity by an international institution, and eventually brought to trial.’ (Graubart 2013, 440). Unlike the post-war military tribunals at Nuremberg and Tokyo which attracted criticisms that they were presided over by the victors of World War II, the International Criminal Tribunal for the former Yugoslavia (ICTY), for instance, ‘was not established by the victorious states at the end of a long and brutal war,’ (Graubart 2013, 440), but comprised of judges ostensibly drawn from states that were not party to the conflict in Bosnia. Thus, tribunals such as the ICTY were perceived to represent ‘the beginning of a new era of global justice characterized by the impending triumph of law over politics’ (Graubart 2013, 439).

I argue, however, that despite the recognition of a degree of impartiality associated with the application of the rule of law by such International Tribunals, the political influence of the UN Security Council over the operation of tribunals such as the ICTY was evident. This is especially since the ICTY itself was a creation of the UN Security Council Resolution 827, which adopted The Tribunal’s Statute in May 1993 under Chapter VII, Article 41 of the UN Charter, ( From Nuremberg to the Hague,  2017). I argue that although ‘the Security Council clearly has a power to create subsidiary organs under Article 29 of the UN charter’ (Guilfoyle 2016, p.80) and thereby establish an independent judicial body to prosecute international crimes, an international tribunal created by treaty and ratified by States represented by the General Assembly of the  UN would have contributed to the perception by non-member states of the UN Security Council of greater independence of the court. Furthermore, I would argue that the lack of effectiveness of these international tribunals in holding all war criminals responsible for particular atrocities accountable is evident due to factors such as lack of state cooperation. For instance, the combined United Nations and Khmer Rouge Tribunal prosecutions took over a decade at the cost of about $300 million to secure the convictions of three individuals who appeared to be the ‘only people to answer in court for the deaths of at least 1.7 million Cambodians from 1975 to 1979’ (New York Times 2017). State cooperation in prosecuting other members of the Khmer Rouge has been impeded by government officials including the Prime Minister of Cambodia, Hun Sen whose government ‘’has been careful to protect its own.’ (New York Times 2017).  ‘Despite the criticisms brought against the Khmer Rouge Tribunal, it is arguable that the court ‘has still done something to comfort the relatives of the Khmer Rouge’s victims. It has also helped Cambodians come to terms with this dreadful episode in their history.’ (The Economist, 2013).  

The creation of the ICC can be traced to the signing of the Rome Statute in July 1998 by 120 nations and the ratification of its treaty in 2002. (Kiess, 2012, p.10). The ICC as a permanent body has wider jurisdictional powers than previous tribunals as signatory states of the Treaty of Rome placed genocide, war crimes, crimes against humanity, the crime of aggression, within the jurisdiction of the ICC (United Nations 1999, 127). An indication of the ICC’s early success against impunity was its first conviction of Congolese warlord Lubanga, which ‘was hailed as a victory for the protection of children in armed conflict and praised for its strong message to perpetrators that violations of international law will no longer go unpunished.’ (Kiess, 2012, 10). I would argue that the ICC’s conviction of Lubanga was also a significant victory for international justice, as mediated through the global court, over the politics of violence engaged in by warlords and politicians of sovereign States.

Unlike previous ad hoc tribunal such as the ICTY, the ICC has the powers to ‘impartially investigate crimes committed anywhere in the world with the authority of the international community as a whole’ (Kiess, 2012, 10). I would argue, however, for a greater clarification of the basis on which the ICC’s powers are to be legitimately exercised since not all member States of the General Assembly of the United Nations are also party to the Rome Statute.

As such, States which are signatories of the Rome Statute may not be perceived by non- signatory states to be entirely representative of the international community in advocating the universality of the ICC’s jurisdiction over international crimes.

Some scholars have asserted that ‘by virtue of having jurisdiction over severe international crimes – genocide, crimes against humanity and other grave breaches of jus cogens norms – the ICC has come to embody the cosmopolitan ideal by placing jurisdiction for those crimes in the hands of the world community.’(Gray and Kalyalya 2016, 54-55). I would argue, however, that the idealism evident in globalists advocating such a form of cosmopolitan justice fails to take into account the continuing reliance of certain states on the ideology underpinning the Westphalian system, ‘that true cosmopolitan justice – be it criminal, as in the case of the ICC, or otherwise – is impossible, as meaningful institutions of governance cannot emerge beyond the state.’(Gray and Kalyalya 2016, 54-55). Additionally, there seems to be little evidence among the signatory States of the Statute of Rome that they have accepted ‘a redefined notion of sovereignty to the extent necessary to enable the functioning of the ICC’. (Partan and Rogic 2003, 56-57). For instance, the Government of South Africa, a member state of the Rome Statute, failed to execute an arrest warrant for the Sudanese President, Al Bashir who was indicted by the ICC for Genocide in 2010 (Amnesty International, 2017), choosing instead to exercise its sovereign right to recognise a Head of State’s ‘immunity under customary international law,’ (Times Live  2017) rather than cooperate with the ICC in arresting Bashir.

Arguments have been raised as to the ICC possessing ‘no moral authority to pronounce its right to universal jurisdiction’ (ICC Watch, 2009), since ‘there is no ‘international community’ in the political sense of a unified global authority that the separate peoples of the World have democratically consented to be legally subject to’(ICC Watch, 2009). The idea that an international community representing cosmopolitan values on human rights exists independently of the moral and legal norms of individual political States is further doubted by  the fact that the preamble to the Rome Statue indicates that ‘the International Criminal Court established under this Statute shall be complementary to national criminal jurisdictions’, suggesting that ‘territorial integrity or political independence is a fundamental part of the purposes and principles of the United Nations’ (Mendes, 2010, 20). I would argue that the norms underpinning the Westphalian concept of sovereignty of states that conceive the nation state as being an independent entity rather than one bound by the moral and legal norms of institutions like the ICC continues to influence the thinking of states represented in the UN. This is supported by the fact that politically influential states like Russia, China and the USA, members of the UN permanent security council, have yet to sign the Rome Statute nor recognise its universal criminal jurisdiction. As such one may question the basis for the ICC’s moral and legal authority in transcending the laws of sovereign states and legitimately holding heads of state and officials accountable for international crimes. Some scholars argue that ‘in modern international politics, authority has traditionally rested with states, meaning that rightful legal institutions were created by states and justified by their consent.’ (Hoover 2013, 263). I argue that the ‘ICC is granted authority in this way, because it was created through a treaty negotiated and signed by states.’ (Hoover 2013, 263). I would therefore argue that, by virtue of a collective acknowledgement and consent of its signatory states, the ICC embodies ‘universal moral norms, which in turn constrain the actions of those states, leading to the reform of international politics.’ (Hoover 2013, 264). From this perspective, cosmopolitan values promoted by the ICC in upholding the human rights of individuals emerge from the Westphalian idea of state sovereignty rather than being limited by it. In this way the Rome Statue may be perceived to be ‘expanding domestic criminal jurisdiction in order to allow states to delegate a wider variety of prosecutions to the court, and hence restrict the range of action of international agents.’ (Gray and Kalyalya 2016, 55). Such a cosmopolitan perspective of a universality of moral norms underpinning the powers of the ICC, however, continues to be rejected by a number of states such as Russia and the United States that invoke their sovereign right to determine who should be held accountable for crimes against humanity. The ambivalence of the United States to the moral and legal authority of the ICC has been demonstrated by its selective support of the ICC, ‘sometimes serving as a staunch supporter and at other times mounting a vocal challenge to its authority. (Vinjamuri 2016, p. 276). The United States evinced its opposition to the ICC when it ‘attempted to block Palestine’s membership, threatening to cut aid to the Palestinian Authority (PA) if it did not abandon this effort.’ (Vinjamuri 2016, 276). Scholars argue that ‘from a realist perspective states will naturally resist subjecting their authority and sovereignty to the ‘tyranny’ of international law.’ (Tiemessen 2014, 447).I submit that the realist paradigm fails to take into account the need to go beyond the exigencies of realpolitik in vindicating the human rights of, for instance, the five hundred thousand or more victims of the brutal conflict in Syria since it began in 2011. I argue for the need to adopt a constructivist perspective that views ‘the ‘cascade’ of human rights prosecutions and the ICC as a pinnacle achievement in the progressive institutionalisation of human rights norms.’ (Tiemessen 2014, 447). I argue that the fact that the ICC has been empowered by the Rome Statute, an international treaty, to prosecute even Heads of State and State officials for crimes as grave as genocide suggests that, far from being an achievement in safeguarding the sovereign rights of States, the ICC epitomises the culmination of human rights norms, recognised by member States of the Rome Statute, in protecting victims of atrocities.    

Doubts as to whether the ICC is truly a global court may arguably weaken the court’s credibility in holding those responsible for international crimes responsible. Such doubts are given credence by the fact that ‘until 27 January 2016 all the cases coming before the ICC concerned African states. (Vilmer 2016, 1319-1320). ‘Accusations of double standards, neo-colonialism and ‘white justice’, continue to be levelled at ICC ‘with the supposedly ‘universal’ court described as actually nothing more than an ‘African Criminal Court’. (Vilmer 2016, 1319-1320. I would argue that the credibility of the ICC as an impartial and apolitical forum within the international criminal justice system and its effectiveness in dealing with the impunity of those who commit international crimes may be further weakened by a number of African states such as Burundi which ‘claimed the court is an instrument of powerful countries used to punish leaders who do not comply with the West.’ (Human Rights Watch 2016). Additionally, South Africa has made reference to the ICC’s ‘perceived biases against African nations’ as a reason for its decision to leave the court (eNews Channel Africa, 2016), while a number of States at an African Union Summit in 2017 supported a ‘collective withdrawal from the international criminal court.’ (The Guardian, 2017). Such accusations against the ICC of engaging in a form of western imperialism that selectively prosecutes African Heads of State and officials have been made in a way that appears to cast doubt on the universality of the ICC’s exercise of its prosecutorial  powers.  

The recent disclosure, however, by the chief prosecutor of the ICC , Fatou Bensouda, ‘that she has evidence for a prosecution not only of allegations of atrocities committed by combatants in Afghanistan, including the Afghan armed forces and the United States military, but of related crimes in other countries where C.I.A. operatives once held and tortured Afghan prisoners’(The New York Times, 2017) may go some way towards lending greater credence to the perception of the ICC as an impartial and global court whose prosecutorial powers extend to international crimes regardless of where they are perpetrated and by whom.  The immediate hurdle faced by the chief prosecutor of the ICC, however, is that the ‘The United States is not among the 123 countries that are parties to the Rome Statute, but Afghanistan, Poland and Lithuania are all parties’ (The New York Times, 2017), thus allowing for the possibility of the ICC prosecuting ‘anyone suspected of having committed Afghanistan-related torture in those countries, including Americans,’ (The New York Times, 2017).     

An argument lending support to the criticism discussed in the previous paragraph that the ICC lacks the status of a truly global court is the claim that the politicization of the court contributes to its lack of independence and impartiality in holding those responsible for heinous crimes such as genocide accountable. ‘The Court’s credibility and legitimacy hinge on whether it can do so in a manner that is independent of and impartial to the political interests of outside actors.’(Tiemessen 2014, p444). I argue that the reality may be such that international law as manifested through the ICC as moral agent may at times be subordinated to the exigencies of realpolitik. The conflict between the need to apply the law in an impartial way and the political constraints impinging upon the ICC may hinder the effectiveness of its accountability system. Political influence, for instance, exercised by UN Security Council over the prosecutorial decisions of the ICC may be a reality as reflected by the possible invocation of Article 16 of the Rome Statute. Under Article 16 the UN Security Council may defer or suspend the investigation or prosecutions of the ICC for a renewable period of 12 months ‘if the investigation is seen as a threat to international peace and security.’ (OpenDemocracy, 2015). Although Article 16 has not been invoked by the UNSC, it has been the subject of a request made by the State of Kenya in 2011 to the UNSC (HuffPost 2017). Kenya subsequently ‘sent a note verbale to the President of the Security Council requesting the termination of the proceedings before the ICC’ (HuffPost 2017). I argue that such attempts by States to interfere with the independence of the ICC by seeking the UNSC’s assistance to defer proceedings may hinder the ICC’s effectiveness in dealing with the impunity of State officials.

Member States of the UN would therefore be obligated to comply with the R2P norm by protecting its people from atrocities or referring cases involving genocide and other atrocities  to the ICC for prosecution in the same way they would be obligated to do so under International Treaties such as the Genocide Convention of 1948. I would argue that the complementary relationship of the ICC and the R2P doctrine is essential in countering both the political influence of the UNSC on the ICC’s exercise of powers of prosecution, as well as the invocation of state sovereignty by States relying on it as shield against the impunity with which atrocities are committed against their people. But does such an ideal reflect reality? The question to be asked is whether there has truly been a reinterpretation of the Westphalian concept of State sovereignty by member States of the UN to include ‘a recognition that sovereignty implies responsibilities as well as powers, and that the purpose of state sovereignty is to protect citizens and therefore it cannot be accepted as a pretext for denying them protection.’  (Williams 2017, 537).

Notwithstanding a possible article 16 invocation, I argue that UN Security Council may be perceived as complementing the prosecutorial powers of the ICC, since it can refer any State to the ICC, regardless of whether it has ratified the Statute of the Court, (United Nations, 1945). This has been the case in relation to the UNSC’s referral of the State of Sudan (Darfur) in 2005 and Libya 2011 to the ICC. In 2009, President Al-Bashir became the ‘first sitting head of state issued with an arrest warrant by the international criminal court (ICC)’ for crimes against humanity and in 2010 for genocide. (The Guardian, 2009).  

I argue, however, that the geopolitical realities may be such that the ICC may be powerless to prosecute officials of non-member states of the Rome Statute for grave crimes of genocide and other human rights violations, especially if such states are shielded from prosecution by the permanent members of the UN Security Council. I would argue that the veto powers of the Permanent 5 members may be exercised in a way that indicates that diplomacy involving economic and political considerations of UNSC member states may supercede the need for justice to be achieved for the victims of gross violations of human rights. Indeed the ICC’s ‘inability to move forward with investigations into the situations in Sri Lanka, the Palestinian territories, Afghanistan and Syria because of some Security Council members political and strategic interests’ (Tiemessen 2014, 449), has been the subject of criticism by scholars. Further, I would argue that the political influence that the UNSC wields over the ICC is evident from the wording of the UNSC Resolutions 1593 and 1970 in relation to the Darfur and Libya referrals to the ICC (Justice in Conflict 2012). These UNSC Resolutions ‘allowed exceptions for the nationals of non-member third countries should they be implicated in serious crimes committed in the referred country’ (Justice in Conflict 2012), thus potentially shielding certain individuals responsible for atrocities from prosecution by the ICC. It is submitted that ‘the UNSC can directly or indirectly prevent the ICC from pursuing situations and cases that involve its members and their allies, or for which political priorities supersede a resolute commitment to justice.’ (Tiemessen 2014, 449). I would argue that the fact that the ICC’s exercise of its prosecutorial powers can be curtailed by the political will of sovereign States represented by the UNSC raises serious concerns about the legitimacy and the impartiality of the ICC in holding accountable those who are responsible for international crimes. 

I would argue that for the ICC to counter the concerns about the politicisation of its powers the court should accept that ‘the agonistic character of international criminal law should be acknowledged.’ (Hoover 2013, 267). This struggle and tension that exists between international criminal law and global politics, and the perception that they are intertwined in their expression and application suggests that ICC should be conscious of the possible effects of global politics on its exercise of its prosecutorial powers since ‘disavowing politics lends itself to naivety and lack of self-criticism.’ (Hoover 2013, 267). I would argue that for the ICC’s accountability mechanisms to be more effective in holding those responsible for atrocities accountable, not only must the court continue to advocate its independence as a judicial institution upholding the rule of law, it should also be cognisant of its own political role in relation to that of the UNSC and other States so as to avoid acting as a ‘judicial institution of the strong to be used against the weak’ (Hoover 2013, 281). I would argue that this perceived politics of prosecution involving the ICC was, for instance, seen by the referral of the Lord’s Resistance Army to the ICC in 2003 by the Republic of Uganda.  This step taken by the Ugandan government ‘demonstrates how in both Uganda and Sudan warring parties have used the ICC’s intervention to brand opponents as hostis humani generis, or enemies of mankind, and to present themselves as friends of the ICC, and thus friends of the international community.’ (Nouwen 2010, 941). Furthermore, critics argue that ‘The ICC Prosecutor has at times encouraged this friend–enemy dichotomy’ (Nouwen 2010, 941), suggesting that the ‘ICC is inherently political by making a distinction between the friends and enemies of the international community which it purports to represent’ (Nouwen 2010, 941). The possible consequence of such a stance adopted by the ICC may be the antagonization of states that threaten to withdraw from the Rome Statute on the basis of their perception of the ICC as aligning itself with certain states who appear to be shielded by the ICC from being held accountable for atrocities committed.

  • ICC’s effectiveness in holding Heads of State and senior officials accountable for atrocities been enhanced by the Responsibility to Protect Doctrine (R2P)?

The origins of the Responsibility to Protect Doctrine (R2P) can be traced to the International Commission on Intervention and State Sovereignty (ICISS) 2001 report (International Commission on Intervention and State Sovereignty 2001). The R2P was given greater recognition at the UN 2005 World Summit when ‘all UN member states unanimously accepted their Responsibility to Protect their own populations from four types of mass atrocity crimes: genocide, war crimes, ethnic cleansing, and crimes against humanity.’ (Williams  2017, 537). Significantly, there was an acknowledgement of the member States’ ‘readiness to take collective action, in a timely and decisive manner, through the Security Council, when peaceful means are inadequate and national authorities manifestly fail to protect their own populations.’  (Williams 2017, 537). I argue that the effectiveness of the ICC’s accountability mechanisms could possibly be further strengthened by the acceptance and implementation by all member States of the UN, regardless of whether they are signatories of the Rome Statute, of the R2P’s principles described by some international relations scholars as a “broadly accepted international norm with the potential to evolve into a full-fledged rule of customary international law.”  (Hassler 2010, 207)   

I would argue, however, that the duality of the ICC and R2P process as accountability mechanisms for international crimes has continued to be impeded by the UNSC and States that are backed by the Permanent Five Members of the UN. Some scholars argue that ‘the ICC and R2P, conceived of as ways to supplement or circumvent state power in order to protect populations within states, have done little, if anything, to assist the civilians who have been caught up or targeted in civil wars in, for instance, Syria and Sri Lanka.’ (Ainley 2015, 37-38). Although the ‘R2P has had some successes in halting atrocity crimes, notably in Kenya in 2007 and in Côte d’Ivoire in 2011 following the violence in the wake of the countries’ disputed presidential elections’ (Williams 2017, 538), the ongoing Syrian conflict involving the killings of hundreds of thousands of civilians by the Syrian security forces since 2011 serves as a reminder that the complementarity of the R2P and ICC has been impeded by the politically influenced decisions of the UNSC. Although the UNSC is empowered to refer non-signatory states such as Syria to the ICC, both Russia and China prevented the referral of Syria to the ICC by vetoing a draft UN resolution which was supported by 65 other member States. (The Guardian 2014).  I argue that the need for accountability by the Syrian government and its President for the crimes against humanity committed against the Syrian people has been sacrificed at the altar of political expediency of ensuring that the political ties between Russia, China and Syria continue to exist in establishing, what Russia termed, a ‘political solution to the crisis. (BBC News 2014).  It is pertinent that France’s permanent representative said a veto against referring Syria to the ICC “would cover up all crimes” (BBC News 2014), suggesting that the impunity of President Assad’s gross violations of international humanitarian law and human rights law continues to be ignored by States such as Russia.

I argue that since the ‘the R2P is a political concept whereas the ICC is a legal institution’ (Birdsall 2015, 55), a synergy drawing from the strengths of both these normative and institutional frameworks respectively could potentially contribute to the strengthening of the ICC’s accountability mechanisms. A possible solution to the impasse caused by politically influenced decisions of the UNSC concerning referral of States to the ICC is for such decision making of the UNSC to be ‘more pluralist [and] more based on clear guidelines as opposed to subjective discretion’ (Ainley 2015, 39). I argue, however, that such reforms to the UNSC, for instance, in the form of changes to the exercise of veto powers by the Permanent Five States, such that these powers are extended to include the views of a more representative number of States of the UN, would possibly face immense opposition by members of the UNSC. For instance, the representative of the United States at the annual debate on the reform of the UNSC reiterated that ‘the United States remained opposed to any expansion or alteration of the veto.’ (United Nations, 2017).

The ICC has introduced significant changes to the way Heads of States and senior officials responsible for genocide, crimes against humanity and other gross violations of international humanitarian law and human rights law are being held accountable today. Unlike previous International Criminal Tribunals like the ICTY, the ICC as a permanent global court was created by an international Treaty and possesses wider jurisdictional powers that extend to individuals who become responsible in international law for atrocities committed. However, the limitations of the ICC include the lack of clarity surrounding the basis for its moral and legal authority in transcending the laws of sovereign states and legitimately holding heads of state and officials accountable. This is because a cosmopolitan perception of a universality of moral norms underpinning the powers of the ICC continues to be rejected by a number of States that continue to rely on their sovereign status in determining criminal jurisdiction for atrocities committed by the officials of their States.  Further, accusations of the politicisation of the ICC’s exercise of its prosecutorial powers and claims that it engages in a selectively prosecution of African officials have appeared to cast doubt on the impartiality and universality of the ICC’s exercise of its prosecutorial powers. I argue that for the ICC to address these criticisms, the court should continue to advocate its independence as a judicial institution by upholding the rule of law while being cognisant of its own political role in relation to the UNSC and other States. Additionally, although the powers of the ICC may possibly be further enhanced by R2P norm. the accountability mechanisms for international crimes continue to be impeded by the UNSC and States that are backed by the Permanent Five Members of the UN. A possible solution to possible deadlocks caused by politically influenced decisions of the UNSC includes  reforms to the UNSC’s exercise of veto powers by the Permanent Five States  by extending such powers to  include  views of more representatives of the UNSC. However, such reforms  would possibly face immense opposition by members of the UNSC. The arguments presented in this essay thus contend that although there have been significant changes to the way Heads of State and officials responsible for atrocities are held responsible by the ICC, the limitations that the ICC faces in prosecuting such individuals suggests there has yet to be a complete reversal of the failings of past accountability systems to support the assertion that the ‘tide has finally turned’ such thatHeads of State and senior officials can no longer hide from justice.’

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Photo by Wendy van Zyl on Pexels.com

Photo by Wendy van Zyl on Pexels.com

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