The advent of international criminal law is arguably the biggest landmark in public international law since the cold war and more especially after 1990. This milestone was characterised by, among other things, the establishment of (quasi) judicial institutions to support the then developing body of law. Subsequently, violations of international criminal law have been prosecuted by internationalized criminal tribunals, notably; the International Criminal Tribunal for Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and later, the International Criminal Court (ICC). Because of the ICTY and ICTR’s temporariness and geographical limitations, the birth of the ICC was viewed as “game-changing in its challenge to power politics and state sovereignty”. This optimism can be attributed to the Court’s wider geographical scope, mandate and permanency. However, despite being touted as “a beacon of justice against the forces of impunity and violence”, there have been raging debates on whether the ICC is in crisis – a description mostly associated with the various challenges the court has grappled with since its birth. These include the apparent failure to assert its authority, withdrawals or threats of it, acquittals, funding, investigation, et cetera. This essay seeks to examine the veracity of that assertion by juxtaposing the mandate of the Court with the realities over the years. As such, it will scrutinise the legal status, powers and jurisdiction, as well as the investigative, prosecutorial and administrative aspects of ICC and how these have played out in the prevailing legal and political order globally. Lastly, attempts will be made to demonstrate that all is not lost, and that the ICC has made some progress to deliver on its mandate in spite of the structural and contextual issues surrounding its operations.
The ICC’s Mandate
To assess whether the ICC is an institution in crisis, it is critical to define what “crisis” means because it is hard to establish its existence without knowing what it entails. The dictionary meaning of “crisis” is “(a) time of intense difficulty or danger”. It can also mean “a time of great disagreement, confusion, or suffering.” Basically, a crisis connotes complications experienced over a certain period. The “time” element therein could suggest that facing difficulties is just a phase and not a permanent feature and once the difficulties are sorted, the crisis ends. With this in mind, it is thus critical, as a first step, to examine the mandate of the ICC as a basis to ascertain whether it is an institution in crisis.
The spirit behind the ICC can be found in the Preamble of the Rome Statute which essentially recollects the horrific atrocities in the past which have led to the death of “millions of children, women and men” across the world and affirms the need to punish the perpetrators. It expresses the determination of State Parties to “establish an independent permanent International Criminal Court” which has “jurisdiction over the most serious crimes of concern to the international community as a whole”. They envisaged a Court that would ensure “lasting respect for and the enforcement of international justice”.
To this end, the Rome Statute contains very empowering provisions. Article 1 thereof establishes the ICC as “a permanent institution” with “the power to exercise its jurisdiction over persons for the most serious crimes of international concern”. Article 4(2) grants the Court “international legal personality” with functions and powers, “on the territory of any State Party and, by special agreement, on the territory of any other State” as per Article 4(2). Furthermore, Article 5 provides for the crimes within the court’s jurisdiction and they include; the “crime of genocide”; “Crimes against humanity”; “War crimes”; and the “crime of aggression.” Article 11 limits the powers of the ICC to “crimes committed after the entry into force of this Statute” i.e. 2002 onwards. To trigger the Court, Article 13 provides that State Parties or United Nations (UN) Security Council can refer the situation to the Prosecutor or, the Prosecutor can initiate their own investigations into a given situation. There are several other provisions that touch on issues of admissibility of evidence, general principles of law, composition and administration of the court, et cetera.
A clear reading of the Rome Statute demonstrates the optimism and aspirations of its framers, namely; end impunity, ensure accountability for violations of international criminal law, deter future violations, and promote healing through the ICC. Whether the court has lived up to its promise is discussed later in this essay.
The assertion that an institution like the ICC, and by necessary implication, the notion of international criminal justice is having a ‘crisis’ has become routine. In various events, scholarly publications and press, it has been posited that the ICC is in “crisis”. The contention, it is argued, is borne out of the “unrealistic expectations resulting from the euphoria of the late 1990s” when the ICC was blossoming and popular. It further mirrors the “challenges facing the Court and international criminal justice more generally.” Below are some of those challenges.
Most international agreements prescribe procedures for States to terminate their relationship. This is in line with article 56 of the Vienna Convention which empowers parties to withdraw from an agreement “in conformity with the provisions of the treaty” or through parties” consent. Accordingly, the Rome Statute empowers State parties to withdraw from the treaty through a written notice to the Secretary General of the United Nations; and unless otherwise stated, the withdrawal becomes effective after one year as per Article 127 (1). Owing to the Africa Question, the African Union called for the mass withdrawal of its member states from the ICC. Indeed, some countries like Gambia, Burundi and South Africa obliged much as some were revoked later. A similar development happened in Asia. In 2018, Philippines withdrew from the ICC after the Court announced plans to investigate the deaths arising from the country’s war on drugs. The net effect of a withdrawal, as per article 70 (1) of the Vienna Convention is that a State party ceases to be bound by the treaty. However, there is a glimmer of hope even after withdrawal; States remain bound by those obligations that accrued before the withdrawal as is the case with Philippines. It is also note-worthy that even in Africa, the so-called “strategy of collective withdrawal” was not unanimously approved with some countries like Nigeria and Senegal opposing it. Equally, it is note-worthy that the withdrawals by South Africa and Gambia were later revoked. Be that as it may, institutionally, withdrawals pose a challenge to ICC’s work because they reverse the gains made over the years by the ICC. Withdrawals compounded by that fact that some powerful countries like United States of America and China are part of the ICC deprive the Court of the moral credibility to address international criminal justice hence deepening the crisis in the global court.
As far as the core crimes of international law, namely; genocide, war crimes and crimes against humanity are concerned, the ICC holds the “unusual distinction” of having more acquittals than convictions by any international criminal tribunal. For these offences, a paltry three convictions (Thomas Lubanga and Germain Katanga — Democratic Republic of Congo; and Ahmad Al Faqi Al Mahdi –Mali) have been secured compared to the four acquittals (Laurent Gbagbo and Charles Blé Goudé — Côte d’Ivoire; Jean-Pierre Bemba Gombo — Central African Republic; and Mathieu Ngudjolo Chui — Democratic Republic of Congo) and eight dropped charges. To many critics, this past performance is an “indictment of the Court.” Acquittals heighten the crisis in the ICC because it demonstrates a failure by the institution to deliver on its core mandate of ending impunity, delivering justice to victims and deterring violations in future. It raises moral concerns as to whether the financial, political and technical investment is justifiable.
However, some scholars view it differently. To start with, it has been argued the ICC’s failure to convict many persons accused of serious cases has been linked to weaknesses in the investigation and prosecution of cases by the Office of the Prosecutor (OTP). Judges reach their conclusions after evaluating the evidence on record. If the evidence adduced before court is weak, it is only fair that the accused persons are acquitted. Scholars like Yvonne McDermott for instance submit that the essence of any criminal court is to dispense justice fairly. As such, despite the external pressure to convict, the ability of the ICC to acquit accused persons reveals the impartiality of the court which is a key ingredient in the dispensation of criminal justice. Additionally, it has been opined that whereas convictions are an obvious deterrent to prospective offenders, the same can be achieved through a mere triggering of the ICC regardless of the final outcome of the process. Former ICC Prosecutor Luis Moreno-Ocampo for example argues that “(t)he most important thing is the prevention of crime.” His belief in the “pre-emptive power of prosecution” can be corroborated by the fact Kenya has not experienced political violence in subsequent elections after the indictment of the current President and Deputy President. This view relates to one advanced by some scholars that the mere ratification of the Rome Statute, criminalisation of violation of international crimes as well any action by ICC (investigation, indictment, trial etc) have the net effect of reducing and preventing more violence. From these views, it could thus be deduced that whereas there are few convictions for core international crimes, the mere invocation of the ICC process inherently deters further violations of international criminal law. This in a way balances off with the low convictions by the Court and hence discounts the ‘crisis’ label tagged on the institution based on low convictions.
Besides the law, the quest for international criminal justice is also hinged on matters of administration. Funding constitutes one of key administrative aspects for the ICC. Article 115 of the Rome Statute provides that the Court shall derive its funding primarily from State Parties and the United Nations. It also accepts “voluntary contributions from Governments, international organizations, individuals, corporations and other entities” as per Article 116. For close to two decades now, an estimated 1.5 billion Euros has been invested in the ICC. Receiving support from State Parties and UN Security Council poses some “conceptual difficulties” which according to some authors, makes the ICC a dual court – an independent court and at the same time, a judicial organ of the UN. It is argued that cases referred by either State Parties or the UN Security Council should be funded by the respective referrer. This seemingly is the spirit behind article 115 of the Rome Statute, which unfortunately, was not expressly stated in the Statute. Little wonder, whereas the UN Security Council referred the situation in Darfur, it externalised the financial responsibility to State Parties. The political and ethical dilemma posed by this arrangement heightens the crisis within the ICC. Who decides how cases referred to ICC will be funded? Does vesting these powers unilaterally to the Prosecutor undermine State Parties? Does vesting it to State Parties undermine the Security Council? It is equally note-worthy that this debate should not overshadow the fact that the Court still requires more to funds its activities. Compounded by the reality that there is limited political appetite to make any “substantial increases in its operating budget”, the crisis in the ICC could only get deeper.
Moral and Ethical Concerns
Like any other international law instrument, the Rome Statute only binds parties who consent to it through signature and ratification. During the treaty making process, 120 countries voted for the Rome Statute, while seven voted against, and 21 abstained. However, the ICC is unique because article 13 (b) of the Statute empowers the UN Security Council to refer cases to the Court including from countries which are not party to the Statute, as it did in Darfur, Sudan. This raises ethical issues because essentially, it is a departure from the settled principles of international law on consent by parties. It has also been contended that this is an attempt at stealthily giving the court some form of unfettered authority across the world. Additionally, unlike humanitarian interventions which happen during a conflict, the ICC mechanism is mainly triggered after international crimes have been committed. The ICC, some scholars argue, risks becoming a “virtuous excuse” and “moral free ride” for states to ignore prevailing violations under the guise of waiting the ICC to prosecute and punish perpetrators later. Inadvertently, the ICC appears to be facilitating States’ inactions in situations that require intervention. This deep dilemma raises moral and ethical issues which contribute to the crisis within the ICC and international criminal justice as a whole.
Undoubtedly, based on its legal mandate, the ICC has made some progress. Besides the few convictions on core international crimes mentioned earlier in this essay, the mere presence of the court has the ripple effect of preventing further violations of international criminal law. This is not to deny that the court has encountered difficult moments during its years of existence. It has been reasoned that the ICC was designed as “crisis-solving tool” and is inherently linked to crisis because it is a mechanism for addressing “extraordinary crimes” which inhere in all political conflicts. Additionally, it was designed as a complementary mechanism and an avenue of last resort particularly if national courts are unable to handle the offences committed in their jurisdictions.
Sadly, the ICC is now being described as a crisis-laden institution mainly for the moral and ethical challenges posed by the legal, political and administrative issues highlighted in the essay. Whereas the ‘crisis’ label has existed for a while, it is not perpetual. There is a “comforting belief that normalcy will be restored” in the way the ICC operates especially if all powerful countries notably USA join it as members and support its operations fully.