A post by Annika Weis
Introduction
The International Criminal Court (hereafter ‘ICC’ or ‘Court’), in operation since 1 July 2002, is to its proponents a glimmer of hope at the pinnacle of international justice but what to opponents may appear like the aftermath of opening Pandora’s box. The Court faces continuous scrutiny and criticism both for acting too much and failing to act enough, while at the same time battling outright hostility from some states and suffering from the inertia of other states. As Robinson says, there seems to be no Goldilocks ‘just right’ solution for the Court. [1] Yet in many situations the Court is dependent on state support and should not be scrutinised for failures resulting directly from state inaction. This blog post adds another dimension to Robinson’s conclusion that the Court can never get it ‘just right’: the rhetorical paradox wherein the Court is the object of criticism when actually, certain failures are caused by state inertia.
The Enforcement Gap criticism
The ICC’s mission to “guarantee lasting respect for and the enforcement of international justice” by ending impunity for “the most serious crimes of concern to the international community” [2] is challenged by two factors, politics and state sovereignty. These two factors play a leading role in the main flaw of the Court’s design and result in a lack of enforcement mechanism, both in the Statute and in practice. By failing to include a provision for the Court’s own police (neither the United Nations nor the Security Council nor Interpol have their own ‘world police’, so this is not a surprise), the drafting parties at the Rome Conference, where the Court’s statute and mandate was established, made the Court dependent on state party support. The absence of an enforcement mechanism leads to the enforcement gap, the most prominent point of criticism of the Court, yet it is not the fault of the Court as such (the ‘Court’ as an entity was not present at Rome to speak up for itself). Rather, it is caused by states’ actions and omissions. On the one hand, the action not to include an enforcement mechanism, and on the other hand, inactions of not supporting the Court, such as by enforcing arrest warrants, directly contribute to the struggles of the Court to succeed in its endeavour to uphold the international rule of law. As the current Prosecutor of the ICC, Fatou Bensouda, stated during the opening speech of last year’s Assembly of State Parties, “… the simple truth is that the objectives of accountability and prevention of the Rome Statute will be frustrated if arrest warrants are not effected and suspects not surrendered to the Court”. [3] In short, states threw the Court into the deep end without first teaching it how to swim on its own, and constantly pull the lifeline a little further from its reach.
Rhetorical paradox between criticism of the Court and state failure to act can be illustrated by reference to one example. The Court was strongly criticised when it issued arrest warrants issued against the President of Sudan and Deputy Prime Minister of Kenya in 2009 and 2011, respectively. The claim was that these posed a threat to both state sovereignty and head of state immunity. However, the Statute specifically abolishes the defence of official capacity and personal immunities before the Court (Article 27), and even explicitly mentions the terms ‘Head of State or Government’, meaning states consented that the Prosecutor has the power to issue indictments against such figures. Furthermore, the fight against impunity arguably necessitates the accountability of high state officials (otherwise, impunity would prevail by shifting blame towards those higher up in a hierarchy); and with the ad hoc tribunals, namely the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, leading trials against high-ranking state officials and senior government figures, a precedent was set that might have made it appear insufficient if the ICC was to issue indictments only against low-tier suspects, also because its Strategic Plan it would surely not have been sufficient for the ICC to issue.
Of course, it has to be mentioned that the situation of Sudan, from which the arrest warrant against the President of Sudan arose, was referred to the Court by the UN Security Council because Sudan is not a state party to the Rome Statute. Nevertheless, the Security Council is composed of states and therefore states referred the situation to the Court. Criticism against the Court for its treatment of the Sudan situation is therefore unwarranted to the extent that the Court acted on its mandate, for the referral had its legal standing in the Statute and was decided upon by states’ consent. It follows that it is thus within the Prosecutor’s discretion which indictments to issue within that situation.
Certainly, the Court may be criticised for failures or errors resulting from actions of its employees (common criticisms include those such as prosecutorial strategies, substantive interpretations of judgments, the use of the budget, victim representation, and so on) – but a distinction should be drawn between the Court’s actions and failures resulting from the genetic makeup, i.e. the Rome Statute, as the latter are not the result of the Court’s own actions.
A step back in time?
This blog post necessarily requires some generalisation (such as ‘states’ in the plural); this is to be taken as an appeal for all states to increase their support, since one state alone will not be able to bring about the support and change in attitude required. For states must have been well aware that immunities of high state officials would pose a challenge to the Court’s jurisdiction, and that state sovereignty would prevent other states from entering their neighbours’ territories to enforce arrest warrants. It might therefore appear puzzling that states, committed to the drafting of the Rome Statute, waived some of their sovereignty for the purpose of bringing alleged perpetrators of the ‘most serious crimes of international concern’ to justice, yet appear to abandon the Court now that it requires the very support which they wrote into the Statute a little over 21 years ago. This lack of ongoing real support paints a picture in which states appear no longer comfortable with how their creation has developed, and it seems necessary to question their genuine objective in creating a permanent international criminal court in the first place.
However, already in 1919, the Allied Powers (especially the United Kingdom and France) sought to punish the atrocities committed by the Kaiser’s Germany in the Great War and faced opposition from their US-American and Japanese colleagues when they proposed a war crimes tribunal for Kaiser Wilhelm II and high-ranking state officials. The arguments advanced by the Americans focused on the lack of a precedent for head of state responsibility for atrocity crimes, and the fact that prosecuting a head of state for such crimes would infringe on the sovereignty of states. [4] Very similar arguments are made to this day, and, unsurprisingly, the United States among other important states on the world stage, has not ratified the Rome Statute. At the end of many discussions, debates, and conferences, no court was established, no war criminals brought to trial, and the anti-impunity project of the early 20th century was abandoned for a while.
Conclusion
The Court, in short, is meant to uphold the international rule of law, by providing a mechanism of ending impunity, preventing atrocity crimes, and bringing perpetrators to justice; yet it is being criticised for its very efforts in doing just that. What equally often seems to be forgotten is that the Court can only work with what it has been given; as such it should not be a failure attributed to the Court when failing to secure the enforcement of arrests, since it has not been given such enforcement powers by states, and states capable of enforcing arrest warrants choose not to do so for political, diplomatic, or other legal considerations.
The Rome Conference in 1998 seems to constitute a point in history where states agreed that enough was enough, that there was a definite necessity for a permanent international court to deal with heinous atrocity crimes committed by men, not by states, as famously stated at the Nuremberg Trial of Nazi war criminals. [5] Yet today, 20 years later, measured by true actions and not just words, states, at all costs looking for backdoors and loopholes to jump so as to escape supporting the Court, could not appear more indifferent to the goal of preventing impunity and upholding the rule of international law where it impairs their own agendas. A look back in time to the Versailles Peace Treaty foreshadows that – albeit this time the Rome Conference eventually led to the establishment of a court – history may repeat itself, posing a warning that what is written in ink requires real action. Otherwise there would not only be no Goldilocks ‘just right’ formula for the Court, but it would also imply that it and the project of ending impunity has finally been abandoned by its creators – risking the international rule of law.
References
[1] Darryl Robinson, ‘Inescapable Dyads: Why the International Criminal Court Cannot Win’ (2015) 28(2) Leiden Journal of International Law 323, p 325.
[2] Rome Statute of the International Criminal Court (adopted on 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3, Preamble.
[3] Mrs Fatou Bensouda, 17th session of the Assembly of States Parties Opening Plenary Remarks (5 December 2018, The Hague) <https://www.icc-cpi.int/itemsDocuments/20181205-otp-statement.pdf> accessed 27/12/18
[4] Commission on Responsibility of Authors of the War, (Memorandum of Reservations presented by the Representatives of The United States to the Report of the Commission on Responsibilities, 4 April 1919), pp 135, 148.
[5] “Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced”, see IMT, judgment of 1 October 1946, in International Military Tribunal, The Trial of German Major War Criminals: Proceedings of the International Military Tribunal sitting at Nuremberg Volume 22 (27 August 1946 - 1 October, 1946), p 447.