As The International Criminal Court Faces More Challenges, We Need It More Than Ever

On September 2, 2020, U.S. Secretary of State Mike Pompeo announced that the US would impose sanctions on senior officials in the International Criminal Court (ICC), including Fatou Bensouda, chief prosecutor, and Phakiso Mochochoko, Head of the Jurisdiction, Complementarity and Cooperation Division. Pompeo justified the move with protecting “Americans from unjust and illegitimate investigation by the International Criminal Court (ICC), which threatens our sovereignty and poses a danger to the United States and our allies.” This follows the decision of the Appeals Chamber of the ICC in March 2020 to authorize the Prosecutor to commence an investigation into alleged crimes perpetrated in the territory of Afghanistan since May 1, 2003, as well as other alleged crimes associated with the armed conflict in Afghanistan. It is likely that this will shed light on the operations of the CIA and U.S. military personnel.

The move has received wide condemnation including from the United Nations. Diego García-Sayán, UN Special Rapporteur on the independence of judges and lawyers, speaking on behalf of the 34 experts, emphasized that “[t]he implementation of such policies by the U.S. has the sole aim of exerting pressure on an institution whose role is to seek justice against crimes of genocide, war crimes, crimes against humanity, and the crime of aggression… It’s a further step in pressuring the ICC and coercing its officials in the context of independent and objective investigations and impartial judicial proceedings.”

The ICC was established to investigate and prosecute the most heinous international crimes. The Rome Statute equips the ICC with jurisdiction over the crime of genocide, crimes against humanity, war crimes, and the crime of aggression.The ICC was established to remove the burden of requesting and overseeing the investigation and prosecution of international criminal law violations from the UN Security Council. However, the ICC is often criticized for being inefficient, excessively expensive, and ineffective. It has secured only a few convictions in 18 years of work. Nonetheless, the ICC faces some challenges that are often overlooked.

First, before a case is formulated against a particular individual, the Office of the Prosecutor must investigate the situation in the country to consider whether the ICC can act (based on the principle of subsidiarity), to identify the defendants and to build a case against them. This, in itself, is an important determination of mass atrocities that should be used to, for example, guide domestic courts to assist with prosecutions. Understandably, the ICC would deal only with the prosecution of those most responsible for the atrocities, and not for every individual involved. As such, domestic courts need to step up to assist with prosecuting the hundreds and thousands of ordinary perpetrators who do not fall within the purview of the ICC’s work. Second, cases of genocide, war crimes, or crimes against humanity are very complex and involve dealing with large volumes of evidence from foreign jurisdictions. Also, as is evident from the ad-hoc tribunals such as the International Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda , such cases take time and resources.

It does not help that the ICC is chronically underfunded with zero net growth, while at the same time, becoming overwhelmed by cases. In recent years, advocates have been calling for the ICC to increase engagement in situations where, arguably, it does not have the jurisdiction to act, most notably, in the recent case of Myanmar/Bangladesh. In that case, the Pre-Trial Chamber recognized that the ICC can exercise jurisdiction when persons are deported from the territory of a State which is not a party to the Statute directly into the territory of a State which is a party to the Statute to be able to investigate the crime and prosecute the perpetrators. Yet, as the argument for engagement succeeded, a price now needs to be paid. Similarly, only a few months ago, a similar argument was used by lawyers seeking to extend the jurisdiction of the ICC in the case of China and its atrocities against the Uighur Muslims and other religious minorities.

It is also noteworthy that the ICC does not only engage in situations where the state is accused of being the perpetrator. It has also been forced to engage in situations where states have failed to prosecute the perpetrators. As such, the ICC increasingly also carries the burden of the failure of domestic courts. Furthermore, some states have been relying on the ICC as the default mechanism for genocide and mass atrocities determination.

The ICC is already struggling with the issue of jurisdiction as it is a treaty-bound court. Often it will not be able to engage. However, as we face an ever-increasing number of mass atrocities happening around the world that require attention by independent arbiters like the ICC, we need to ensure that the ICC has all the resources it requires to be able to do the important job of investigating atrocities and prosecuting those responsible. Limited resources should not be a reason for failing to bring to justice those responsible. If the ICC cannot do this job, no-one will, and so impunity will beget further atrocities. Humanity is already at a breaking point.

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