Why the International Criminal Court is Going OK.
The International Criminal Court (ICC), established in 1998 and in operation since 2002, was set up to ‘help end impunity for the perpetrators of the most serious crimes of concern to the international community’. Its creation was hailed in some quarters as the ‘instantiation of a global moral code’ and the realisation of law escaping the monopoly of nation-states. Yet even after nearly fifteen years of operation, the accomplishments of the ICC remain unclear, with its high-profile failings dominating coverage of its activities.
Here I will address the two most commonly expressed criticisms of the Court, specifically the United States’ ongoing resistance to joining the ICC and the accusation that the ICC is guilty of ‘hunting Africans’, but will argue that while these shortcomings and limitations are real, the development and subsequent functioning of the Court represents arguably the most important juncture in the evolution of International Humanitarian Law (IHL) and these limitations pale when one considers the overall significance of the ICC.
The first most consistent complaint against the Court concerns the United States’ continued rejection of the Rome Statute. While initially supportive of an international criminal court the United States, somewhat infamously, was one of seven countries to vote against adopting the Rome Statute as the founding document for the ICC. While Bill Clinton did eventually commit the US to joining the Court, his successor, G.W. Bush ‘unsigned’ the Rome Statute and supported legislation committing signatories to the Rome Statute to not turn over American citizens to the Court. The relationship between the US and the ICC has subsequently become less hostile (the US was the primary supporter of the Security Council resolution to indict Sudanese leader Omar Al-Bashir) but the recent decision by the ICC to admit Palestine to the Court has inflamed old tensions, especially amongst Congressional and Senate Republicans.
It is undeniable that US membership would strengthen the ICC, nonetheless, the absence of the US does not necessarily lessen the ICC’s legitimacy. Furthermore, the strength of the rule of law in the US, and especially the passing of both the War Crimes Act (1996) and the Genocide Convention Implementation Act (1997), means that even if the US were a signatory to the Court, under the complementarity principle, the ICC would most likely be satisfied that the United States could be solely responsible for prosecuting violations by US citizens of the core crimes outlined in the Rome Statute.
Perceived bias against Africa is similarly underpinned by misunderstandings about how the Court works. Of the eight situations, four (Uganda, Mali, DRC and CAR) are self-referrals; that is, states party to the Rome Statute have referred crimes committed on their own territory. Only two situations (Libya and Darfur) have been referred to the Court by the United Nations Security Council; while the situations in Cote D’Ivoire and Kenya were initiated by the Office of the Prosecutor and only progressed after being approved by an ICC pre-trail Chamber. Thus, claims that the ICC is little more than a tool of western imperialism are somewhat disingenuous. Furthermore, as a number of academics have noted, in none of the situations in Africa where the Court has intervened was it incorrect to do so - every one of the situations warranted an ICC intervention.
The recent, albeit controversial, admittance of Palestine to the ICC and the inevitability of the ICC opening a situation that will investigate possible crimes committed during the 2014 Israel-Palestine conflict will serve to negate some of the criticisms of an ‘Africa bias’. Such criticism might be further diluted were situations to be opened in Syria and Sri Lanka, for example, but the fact that neither of these countries are signatories to the Rome Statute, combined with the fact that they have powerful patrons on the Security Council (Russia in the case of Syria, China for Sri Lanka), means that this is unlikely.
The above criticisms of the ICC, while not entirely unjustified, fail to appreciate the degree to which its activities challenge the centrality of the state and its claim to an unquestioned right to use violence and in turn to be the primary arbiter of the legality of the use of violence. This is a well-established and long evolved norm that cannot be completely overcome in a short period of time. Indeed, the inability of the Court to open investigations into Syria and Sri Lanka says more about the prevailing realities of the international system than it does about the Court.
Thus, as a supranational mechanism of international legal justice, the ICC provides a hitherto non-existent means of prosecuting the worst violations of IHL, while simultaneously undermining traditional understandings of ‘politics as power’. Furthermore, the ICC provides a counter to legitimating the use of force through appeals to raison d’état by extending legal and moral constraints to the realm of international affairs. Thus, the ICC is best understood as contributing to order in the society of states where restrictions on the use of force are increasingly informed by obligations to international law, but where international law is not yet ‘cosmopolitanised’. As such, the ICC does not transcend sovereignty, but provides a medium beyond the self-interested space of the sovereign state to prosecute violators of IHL.