The creation of the International Criminal Court (ICC) 20 years ago today marked the beginning of the end of an era of impunity for genocide, war crimes and crimes against humanity. The ICC was established – five decades after the end of World War 2 – by the Rome Statute treaty and adopted by 120 states.
ICC Registrar Peter Lewis at a recent meeting with non-governmental organisations at the seat of the court in The Hague, said the Rome Statute has ‘come of age’. The court is here to stay.
On today’s anniversary, which also marks World Day for International Justice, analysts and commentators are reflecting on the court’s successes and shortcomings. At the centre of this discussion should be the (in)actions of the treaty’s structures – the organs of the court, the Assembly of States Parties (ASP) to the Rome Statute and the United Nations Security Council, which has the power to refer and defer situations to the ICC.
When the Security Council refers situations to the ICC, all states should have to cooperate
The commitment by 123 states now signed up to the Rome Statute to remain part of the system is arguably a significant indicator of its success. This is particularly so because the greatest challenges the ICC has faced since it was established are the threat of withdrawal by African member states and their non-cooperation.
The threat of withdrawal has since abated, with a number of African governments voicing their support to stay in the Rome Statute system. And those African states that led the withdrawal campaign have changed their minds, like Gambia; gone surprisingly quiet on the matter, as in Kenya and Namibia; or indicated a possible rethink, as recently reported of South Africa. Burundi is the only state that has left the court.
Of course, for the Rome Statute system to work, the ICC needs not just signed-up members but active cooperation. The gravest threat to the court remains the non-cooperation of states. Cooperation is an essential cog in the Rome Statute wheel of justice, and without it, the ICC cannot deliver on its mandate.
The two ICC arrest warrants against Sudanese President Omar al-Bashir, in 2009 and 2010, and a summons to appear for Kenyan President Uhuru Kenyatta in 2014 sparked an African Union (AU) backlash against the ICC. The more African states accused the court of bias, the more this whipped up anti-ICC sentiment among the continent’s leaders.
From 2009 the AU started calling on its member states not to cooperate with the court regarding al-Bashir’s warrants, culminating in what the AU called a withdrawal strategy in 2017. Curiously, the AU decision on the matter was more about ensuring constructive engagement with the Rome Statute system than withdrawal.
The ASP and Security Council’s failure to timeously, if at all, address African states’ concerns – for example alleged bias, selection of cases, immunity of heads of state and not getting an audience with the highest-level decision makers at the Security Council – entrenched ongoing tension between the AU and the ICC.
Not all cooperation problems are caused by states parties however. Neither Sudan nor Libya are states parties to the Rome Statute, but through Security Council referrals, the Darfur and Libya situations are before the court. Both have presented obstacles that are difficult for the ICC to overcome without the intervention of the Security Council.
When the Security Council refers situations to the court, it should impose obligations of cooperation on all states, not just Rome Statute members. An upcoming Institute for Security Studies report argues that this is key to improving cooperation with the ICC. The Security Council should also use its powers under the UN Charter to respond to findings of non-cooperation. This should be routine in cases arising from situations referred to the court by the Security Council.
The cases before the court have also drawn sharp criticism about its capacity to deliver justice to victims. The ICC’s Appeals Chamber recently acquitted the Democratic Republic of the Congo’s (DRC) Jean-Pierre Bemba on crimes allegedly committed in the Central African Republic.
The decision has had complex political ramifications in the DRC, where Bemba is now contesting the presidential elections in December this year. Besides this, because of the legal framework around court-ordered reparations, the CAR victims in that case are left without recourse to justice.
A similar failure to bring justice to victims in the Germain Katanga case occurred in June 2014 when the ICC prosecution discontinued its appeal against an earlier judgment. Kenyan cases were either discontinued or terminated, leaving those victims without the justice they were promised.
Despite the problems of the past 20 years, the ICC undoubtedly has potential and shows how the international community can bring justice to the millions of victims of atrocities across the world. Achieving this is not just the business of the court. It will require real commitment from member states that signed up to the Rome Statute, the Security Council and civil society.
Written by Allan Ngari, Senior Researcher, ISS Pretoria.