Why the international criminal court can’t serve universal justice
The ICC has reopened a preliminary investigation into alleged war crimes by British soldiers in Iraq, but despite broad support, the court’s narrow jurisdiction makes it ill equipped for the task, Alex George explains.
For the most part, international criminal law is barely more than fiction. States are free to commit war crimes and crimes against humanity as they please, with no recourse available against them.
Feeble attempts have been made to establish a universal system of accountability. After the second world war, the allies set up the Nuremberg Trials in order to prosecute those responsible for the atrocities committed by the Nazis. But this was little more than victor’s justice. The trials were instigated by allied prosecutors, adjudicated by allied judges and based on principles of international law they, for the most part, made up as they went along.
Until the turn of the century, justice was still hard to come by, with trials being established on an ad-hoc basis by the United Nations security council. This system protected the veto-wielding permanent members and their allies, and responded only to major atrocities, such as the international criminal tribunals for Rwanda and Yugoslavia.
The international criminal court (ICC) was established in 1998 with the aim of administering justice in the most serious cases, namely war crimes, crimes against humanity, and genocide. Since then however, it has been subject to criticism from almost every angle.
Many charge that it is unfit for its purpose, arguing that it’s impotent against powerful states and has instead focused almost entirely on Africa — every person tried so far has been African, and the African Union has considered asking its members to withdraw from the organisation. Last week it continued on this form, sentencing Congolese warlord Germain Katanga, only the second person to be convicted by the court.
It was hoped that the recent replacement of the ICC’s chief prosecutor, Argentina’s Luis Moreno Ocampo, by his Gambian deputy Fatou Bensouda, would stop the selective prosecution of Africans, but sadly this hasn’t been the case.
The ICC has also been broadly criticised for issuing warrants against the heads of state of Sudan and Kenya — despite the gravity of their alleged crimes. Many lawyers were outraged that it had the audacity to compromise basic diplomatic protocol, while others criticised the ICC’s inability to bring their suspects to trial after their initial indictment. In short, neither side is satisfied with the ICC’s performance.
All this aside, the ICC’s fundamental downfall is its basic inability to overcome the greatest obstacle in international law — consent. Every state is sovereign, and cannot be bound by anything without its express consent. For example, security council resolutions are only binding on UN member states because upon joining the UN they all consented to abide by them.
Out of 193 UN members, 139 have signed the Rome statute which establishes the ICC. Unfortunately, signature alone is not enough to confer jurisdiction upon the ICC and states must also implement it through ratification. 17 states have signed but not ratified, including Sudan, Israel and the United States, which have no intention of doing so.
These non-ratified states are troubling, but worse still, the list of non-members is effectively a list of aggressive world powers, and without their signature, the ICC is powerless over them.
The ICC can only exercise jurisdiction over nationals of a state that has ratified the statute, or those who have committed their crime within a state that has ratified the statute. As a further sticking point, it can only deal with crimes committed after July 2002, when the Rome statute came into effect. This prevents the ICC from exercising jurisdiction over a number of recent conflicts, including the Gulf war, the Kosovo war, and the start of the war in Afghanistan.
Despite Sudan refusing to ratify, its president, Omar Hassan al-Bashir, has been indicted — against universally accepted sovereign immunity — for war crimes, crimes against humanity, and genocide. This is due to a unique — if ultimately inadequate — ground of jurisdiction: the ICC can also exercise jurisdiction if the UN security council refers a case to it.
Last week, the security council was presented with a resolution referring war crimes in Syria to the ICC. It had been sponsored by 65 countries but was vetoed, predictably, by Russia and China.
The United States’ ambassador, Samantha Power, decried their actions: “the Syrian people will not see justice today. They will see crime, but not punishment.” As true as that statement is, it’s deeply hypocritical given that the United States has not ratified the Rome statute, and that it would likely veto any resolution attempting to refer its actions in Iraq, or the actions of an ally such as Israel.
The ICC’s unique position over crimes of aggression — where one state uses military aggression against another — is a final blow to its effectiveness.
Crimes of aggression are dealt with separately and require the ratification of an additional instrument, which will only become binding after 2017 and with 30 ratifications. A mere 14 states have ratified thus far. Anyone demanding the ICC prosecute Bush/Blair over Iraq will be left wanting, as neither the UK or US have ratified, or are ever likely to.
The inadequacy of this is plain — it is consistently the same states involved in wars of aggression, and none of them will go out of their way to ratify an instrument that will punish them for this — many of them haven’t even ratified the first instrument.
We can’t expect the ICC to deliver fair and consistent international criminal law anytime soon, especially not in its current form. When states are unwilling to submit to the ICC of their own accord, there is never going to be universal justice. It really is that upsettingly simple.
Originally published at abstractmag.com on May 28, 2014.
