The Rome Statute entered into force twenty years ago and, recently, the current ICC’s Prosecutor, Mr. Karim Khan KC, asserted that this document is testimony to the rule of law’s ability to provide protection, particularly to the most fragile, and to ensure that individuals guilty of genocide, war crimes, crimes against humanity and crimes of aggression are brought to justice. Such an occasion invites to reflect on and try to renew the international criminal justice process in that it can only progress with a concerted effort and a common belief that the work of the ICC is necessary. This is imperative because ICC’s deficiencies, most notably, poor success of the prosecution in the courtroom, low conviction rate compared to the number of cases investigated, low impact in affected countries due to the lack of success of the intent to deter, and lack of an adequate level of cooperation, have become obvious. The Rome Statute’s anniversary launched a process aimed at reflecting what initiatives should be taken in order to strengthen the Court and its system.
First and foremost, the ICC should be closer to the communities affected by serious crimes and implement reforms in order to accelerate and improve the quality and delivery of justice. Moreover, the ICC could be a more credible and efficient organism if it could be capable of providing justice impartially. If truth be told, many obstacles and criticisms levelled at the ICC relate to the fact that it has often been biased by governments who, by using the State-Party Referral activation mechanism, have conditioned the Court to act with regard to only one of the two parties involved in the conflict (as the Ugandan case demonstrates: after the Ugandan President referred the matter to the ICC in December 2003, the Court, sided with Museveni and prosecuted only heinous crimes perpetrated by the Lord’s Resistance Army despite evidence that serious violations were being committed also by the government army, the UPDF). The fact that numerous perpetrators of crimes within the jurisdiction of the ICC were not subject to arrest warrants – because they were not part of the faction that the Court was investigating – has significantly undermined the institution’s credibility. Such conduct demonstrated that the ICC was unable to be impartial. The fact that the ICC has sometimes failed in being impartial has certainly averted the success of its goal of acting as a deterrent and it is a significant limitation to the performance of international criminal justice and makes the ICC weak.
It is logical to think that if the Court does not act impartially, it effectively protects the party requesting its intervention by not including the accuser in the investigations and, therefore, from possible prosecution, hence safeguarding the referring party’s interests. But in doing so, it appears that member States could be allowed in choosing for which cases they are granting support to the ICC and in which they are not. It thus becomes clear how this mechanism can only fail to achieve the deterrence goals of the ICC. Another manner that could make the Court more impartial and less prone to being biased in situations in which it intervenes – in that it is conditioned by the States in which it is called upon to act – could be to implement better coordination between international criminal justice and national criminal justice. The ICC should create a sustainable and harmonious system of accountability to perjure that brutal perpetrators remain unpunished. However, it is clear that not everyone can be prosecuted internationally, but neither is it correct to leave without consequences low-ranking perpetrators who nevertheless caused brutality. Here, then, is where the Court should work alongside the national justice system of the State in which it intervenes.
Further reflections are on the issue of cooperation between the ICC and its member States. A significant impediment to ICC’s effectiveness is the Court’s dependence on its States Parties as it has no mechanism to enforce its decisions independently of its member’s support. If the ICC was able, instead, to act independently of States – both members and those States that have significant influence on the Court while not being subject to its jurisdiction – would certainly make the ICC more effective in that it could investigate the perpetrators of heinous crimes from all countries of the world and all factions involved in the perpetration of such illegal acts, thus regardless of how or by whom the Court’s involvement was requested and occurred.
When mentioning the influence that some non-member States to the ICC Statute have on the Court, reference is made to the US, Russia, and China, three UNSC members that have the power to refer a situation where gross violations are being committed to the ICC given that the UNSC referral to the Court is one of its activation mechanisms. While it is a mechanism that allows the ICC to intervene in situations where serious crimes are being committed, but in which the Court does not have jurisdiction (as in the Sudanese or the Libyan case), it is a mechanism that excessively conditions the Court’s action – sometimes undermining or hampering it – because it makes it subject to the will of countries that are not members of the Court.
Another relevant criticism to observe and that seriously hinders the Court’s action, therefore, its deterrence intent, is that of slow Court proceedings. There is a need to improve the functionality and incisiveness of trials. Certainly, the integrity of the hearings must be maintained, but measures could surely be taken to decrease the length of trials and thus do justice in faster times. This would respect the right of the defendants to have a fair trial without undue delay, as stipulated in Art. 67(1)(c) of the Rome Statute, it would also respect the right of the victims to receive justice for the wrongs and violence they have suffered since lengthy proceedings can exacerbate the damages suffered.
The critics made to ICC’s action are only part of the hurdles that hamper its action. The Court certainly has its flaws, but it could have great potential. It is for this reason that solutions to the Court’s problems and unpopularity must be found, therefore focusing on implementable and sustainable reforms. Certainly, the points outlined are critical for the ICC to better perform in averting the perpetration of crimes such as genocide, war crimes, crimes against humanity and crimes of aggression, for which it has jurisdiction. A reformed ICC on the issue of impartiality and cooperation with its members should strengthen its degree of influence in the world in order to be able to exert a more pressing role against those who intend to commit crimes for which it is competent.
References:
APUULI, The International Criminal Court (ICC) and the Lord’s Resistance Army (LRA) insurgency in Northern Uganda, Criminal Law Forum, 2004, pp. 391-409
ARCARI, A Vetoed International Criminal Justice? Cursory Remarks on the Current Relationship Between the UN Security Council and International Criminal Courts and Tribunals, Diritti umani e diritto internazionale, 2016, 10(2), pp. 363-374
BARNES, The International Criminal Court’s Ineffective Enforcement Mechanisms: The Indictment of President Omar Al Bashir, Fordham International Law Journal 34, no. 6 (June 2011): 1584-1619
BRANCH, Uganda’s civil war and the politics of ICC intervention, Ethics & International Affairs, Volume 21, Issue 2 , Summer 2007 , pp. 179 – 198
CORMIER, The Jurisdiction of the International Criminal Court over Nationals of Non-States Parties, Cambridge University Press, 2020
DE HOON, The future of the International Criminal Court. On critique, legalism and strengthening the ICC’s legitimacy, International Criminal Law Review 17(2017), pp. 591-614
FULFORD, Symposium on the Rome Statute at twenty. Who arrests those accused by the ICC?, The American Society of International Law and Adrian Fulford, 2018
By The European Institute for International Law and International Relations.
