Despite recent achievements, many challenges ahead for the International Criminal Court

Will the
impending implementation of the ‘crime of aggression’ and investigation into
Afghanistan once again put the ICC’s legitimacy to the test?

By: /
26 January, 2018
Prosecutor Fatou Bensouda enters the court room for the trial of Dominic Ongwen, a senior commander in the Lord's Resistance Army, at the International Court in The Hague, Netherlands, on December 6, 2016. REUTERS/Peter Dejong/Pool

Last week, the judicial year began for the Hague-based International Criminal Court (ICC), in tandem with the first celebrations honouring the 20th anniversary of the adoption of the Rome Statute, the international treaty that established the ICC as a permanent court.

With the statute turning 20 in July, scholars and practitioners of international justice have been both optimistic and critical in their reflections on the current state of their field and the road ahead.

“I think the big question that has come out of the last 20 years is: will the ICC be able to do what it was set up to do — to prosecute and prevent war crimes, crimes against humanity and genocide?” Susanne Mueller, a political scientist at Boston University’s African Studies Center, said in an interview.

Since its inception, the ICC has been heavily criticized as inefficient, having secured few convictions, but Mueller added that she sees the court as a “beacon of hope” for those with no alternatives for justice. 

In December, states party to the statute met at United Nations headquarters in New York for the court’s annual assembly. The conference began with the election of six new judges — including a Canadian, Kimberly Prost, the former chef de cabinet to the president of the ICC — and remarks from the assembly’s new president, O-Gon Kwon, a South Korean judge.

Kwon acknowledged the task he will face in his role as president: “We are still witnessing mass atrocities worldwide. In many cases the perpetrators of these crimes are beyond the court’s reach, due to the limited jurisdiction of the court, non-cooperation of states, or lack of political will. Ending of impunity seems to remain a remote goal even two decades after the inception of the court.”

Despite excitement over the upcoming anniversary of the court, assembly attendees were astutely aware that one third of United Nations members, including three permanent members of the UN Security Council — the United States, China and Russia — have not signed on to the Rome Statute and have no intention of doing so. (Burundi, who had signed on to the statute, became the first country to officially withdraw from the court in 2017.)

Equally if not more concerning is the level of non-cooperation between state parties and the court; not even half of the 123 states that have ratified the statute have adopted national legislation to meet their obligations for cooperation with the court. At present, 15 arrest warrants and surrender requests remain outstanding, including that of Sudanese President Omar al-Bashir, who has travelled to more than 75 countries since warrants for his arrest were issued in 2009 and 2010.

While Sudan is not a party to the Rome Statute, the failure or refusal of state parties to arrest al-Bashir while in their country is perhaps the most blatant example of disregard for the court’s authority.

Since the ICC does not have the benefit of an army or police force, it is entirely reliant on the will of state parties to provide assistance. The assembly has the authority to impose sanctions on states that fail to cooperate but, as Mueller explained, “states are highly reluctant to sanction each other. They need each other in other fora.”

The assembly “has proven to be fairly toothless, so that’s a problem,” she said, adding that when states do not comply, there are often no immediate consequences.

A contentious ‘crime of aggression’ becomes law

While cooperation among states remains a growing concern, the December assembly made history when state parties succeeded in adopting the crime of aggression and in adding three new war crimes to the Rome Statute, including the use of laser technology causing permanent blindness and the use of microbial and toxic weapons. 

The crime of aggression — the criminalization of “the use of armed force by a state against the sovereignty, territorial integrity or political independence of another state”  remains a divisive issue.

Under this provision, it is also a crime to plan, prepare or initiate armed force against another state. This could mean that any country that assists another in the perpetration of acts of war could be held accountable if the court has jurisdiction to prosecute those crimes. This is also the first crime within the Rome Statute that specifically targets those in a “position effectively to exercise control over or to direct the political or military action of a state” — in other words, heads of state and military leaders.

“It seems to be a difficult situation, where you face tremendous obstacles no matter what you do.”

While the crime of aggression was included in the original text of the Rome Statute, a formal definition of the crime was not agreed upon until a 2010 conference in Kampala, Uganda. It was decided that the provision would not come into force unless ratified by 30 states and voted upon by a two-thirds majority of state parties, which was achieved at December’s meeting.

But agreements made in Kampala did not settle the ongoing debate of the court’s jurisdiction over these crimes and, specifically, those committed by or on the territory of a state that has not ratified the amendments. Canada was among several states to argue that the court should not have jurisdiction in such a scenario.

Despite the excitement over the adoption of the provisions, there is a sense from within the international justice community that what was agreed upon may be more symbolic than effective, especially as the resolution suggests that jurisdiction only applies to the states that ratify the 2010 amendments (of which there are so far 35).

However, when it comes into effect this summer, it will be the first time since the post-World War II Nuremberg trials that an international tribunal will have authority to prosecute such a crime.

The Canadian government has yet to decide if it will ratify the amendments, Brittany Venhola-Fletcher, a spokesperson for Global Affairs, said in an email.

While the potential impact of this provision is unclear, some consider the end of negotiations a step forward. Others are wary. “Can you really go after sitting heads of state, and if you can’t, can you even go after their underlings who are beholden to them?” Mueller asked, emphasizing that in spite of having achieved a limited legal definition and agreement, there will be a push back from those who want [the ICC] to fail…it seems to be a difficult situation, where you face tremendous obstacles no matter what you do.”

Laszlo Sarkany, an adjunct professor at King’s University College in London, Ontario, noted that the provision itself is something. “What we’re seeing is incremental, small scale change, but we’re not taking leaps and bounds forward…Up until this year, we didn’t have a definition on the books, so now we have that. The reach of the amendment is a different story.”

Investigation into Afghanistan

These questions become more urgent in the context of the Office of the Prosecutor’s recent decision to request approval from the ICC Pre-trial Chamber to investigate crimes that were committed in Afghanistan, including those committed by the US military and the CIA. The prosecutor’s 2017 report on her preliminary examinations in Afghanistan refers to acts that were “particularly cruel, involving the infliction of serious physical and psychological injury, over prolonged periods…leaving victims deeply traumatized.”

While not party to the Rome Statute, the United States reaffirmed its longstanding rejection of ICC jurisdiction during the recent assembly. “As the United States has previously stated, we will regard as illegitimate any attempt by the court to assert the ICC’s jurisdiction over American citizens,” a US representative said in December.

The ICC was created as a court of last resort to be used only when countries are unable or unwilling to prosecute their own citizens for crimes that fall under the court’s jurisdiction. The US argues that its domestic systems are sufficient. But the ICC prosecutor’s report suggests that no national investigations or prosecutions have taken place against those most responsible for crimes committed by the CIA in Afghanistan.

None of the other NATO countries involved in the Afghan mission, including Canada and the UK, have been listed by the ICC as under investigation.

The prosecutor’s request to initiate an investigation is seen by many as an important step forward in enforcing the rule of law and accountability for international crimes, especially given that criticism of the court often falls on its focus on African countries.

“The more effective the court is, the more controversial it will become,” said William Pace, executive director of the World Federalist Movement and convener for the Coalition for the ICC, an international NGO made up of 2500 organizations who advocate for a fair, effective and independent ICC.

Looking at the challenges ahead for this year, Pace questions whether “peace, justice and the rule of law will move forward” or whether conflicts will persist. “One can look at the situation of Trump and Putin and North Korea and be extremely worried that the international community is moving backwards, not forwards,” he said.

And while there are many concerns about the court’s ability to fulfill its mandate — including the fact that states such as Canada consistently argue against any budget increases — there is hope for the role the ICC can have in the advancement of international justice and the rule of law, as judge Kwon reminded those in New York in December.

“I view international criminal justice as a living and growing organism, a work in progress, a project still in its infancy — and as such, we have an obligation to future generations to care for its development,” he said.

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