20 years of the International Criminal Court
It’s been two decades since the Rome Statute, which established the International Criminal Court (ICC), came into force. Since then, the ICC has prosecuted numerous cases against perpetrators of gross human rights abuses, resulting in several convictions. However, powerful states have refused to join and blocked investigations into many severe violations, forcing the ICC to take a patchwork rather than universal approach. But each prosecution offers some redress to the victims of abuses and sends a message that impunity can be challenged. Civil society, which played a key role in establishing the Court, will keep defending it and working to make it stronger.
July marks 20 years since the Rome Statute – the treaty that established the International Criminal Court (ICC) – entered into force. In that time, the Court has faced numerous challenges and criticisms – but has also proved its worth by making an essential contribution to upholding human rights.
The ICC so far
The ICC, an independent body working outside the United Nations (UN) system, operates as a global court of last resort for four types of gross human rights violations: genocide, crimes against humanity, war crimes and crimes of aggression. It exists to investigate and prosecute these crimes when states are unwilling or unable to do so at the national level.
It is, at least in part, the brainchild of civil society, which long pushed for its establishment. Calls were given added urgency by dreadful events such as the 1994 Rwanda genocide, which made it abundantly clear that, in the absence of an international judicial mechanism, perpetrators of such violations would escape justice.
Important precedents were set by the International Criminal Tribunal for the former Yugoslavia, established in 1993 to try war crimes committed in conflict during the break-up of the country. The Tribunal convicted 90 people, among them political and military leaders. As well as offering a measure of redress for many victims of atrocities, it helped put the idea of an international court to the test.
Civil society worked with states supportive of the idea to build momentum. Efforts were spearheaded by the Coalition for the International Criminal Court, a civil society network founded in 1995 with member organisations in 150 countries. The Coalition first pushed for the treaty to be agreed and then for states to pass it into law. The Rome Statute was adopted in July 1998, and the threshold of 60 ratifications needed for it to come into force was met on 1 July 2002, a remarkably rapid achievement in the slow-moving world of global governance.
The first ICC conviction came in March 2012, when Thomas Lubanga Dyilo was found guilty of war crimes for using child soldiers in conflict in the Democratic Republic of the Congo. The Court has now heard 31 cases and convicted 10 people.
Important further steps have come, each helping establish vital international precedent. In 2017, the crime of aggression was codified as part of the ICC’s jurisdiction, becoming the fourth crime it can investigate and prosecute.
In July 2020, a further important precedent was established when the first ICC trial began for persecution on the basis of gender, against a former Islamist militant alleged to have forced hundreds of women into sexual slavery in Timbuktu, Mali in 2013. Most recently, in April the first trial began for crimes committed in Darfur, Sudan; until now, several people investigated for crimes in Darfur had managed to avoid facing the Court.
The Court now has 123 member states. Civil society continues to engage with it, including by advocating for investigations, scrutinising candidates in its elections and campaigning for more states to join. Civil society also takes part in annual consultations with the Assembly of States Parties, the ICC’s governing body.
Source: Own elaboration based on data from the Coalition for the ICC
Setbacks and challenges
But the Court’s role has always been contested, and several setbacks have come along the way. These have included pull-outs of member states: Burundi left in 2017 and the Philippines in 2019.
In both cases withdrawal was a defensive reaction by leaders directly implicated in human rights violations, seeking to protect themselves from the ICC’s gaze. Burundi was placed under investigation over crimes committed in the violent repression of protests held in response to the president standing for a third term in 2015, and the Philippines for outgoing President Rodrigo Duterte’s ‘war on drugs’ in which thousands have been killed.
These events shine a light on a key weakness of international bodies, which doesn’t apply to the ICC alone: when institutions stand up to states, states may simply walk away.
But predictions these withdrawals would spark a domino effect haven’t come to pass. When Burundi moved to pull out in 2016, the governments of The Gambia and South Africa said they would do likewise – but both later backtracked.
Burundi’s withdrawal came at a time when several African states were claiming the ICC was biased against the continent. In February 2017 an ICC ‘withdrawal strategy’ was agreed at an African Union summit, but rather than intensifying momentum, this was a compromise text masking the reality that most African states intended to stay committed to the ICC. African civil society mobilised to make the case for the Court in countries talking about pulling out.
A bigger problem is presented by the many states that have never joined. The ICC’s membership is far from universal: 70 of 193 UN member states are not ICC members.
It has always been the most powerful states that want the least to do with the ICC. China, India and Saudi Arabia are among 41 states – more than one in five UN members – that never signed the Rome Statute. Some significant others – Israel, Russia and the USA – signed it but never ratified it, and subsequently withdrew their signatures. This means that three of the five permanent members of the UN Security Council – China, Russia and the USA – seek to shield themselves from the Court’s jurisdiction.
Withdrawal and withholding of membership aren’t the only problems. Several member states have been accused of attempts at political interference in the ICC’s governing body and in the election of judges and the ICC’s Prosecutor. States have also been criticised for withholding funding in an attempt to influence the Court or make it less effective.
A patchwork approach
Regardless of who has committed gross human rights violations and what country they owe their allegiance to, they should face ICC action if courts in their own country neglect to hold them to account. But as many countries haven’t ratified the Rome Statute, the Court falls short of universal jurisdiction.
Crimes that aren’t referred to the Court by an ICC member can still be investigated: the Prosecutor can launch investigations on their own initiative, or the UN Security Council can refer a case to the ICC: it can refer any situation involving a UN member state, regardless of whether the state is a n ICC member, as it did with Sudan.
But the veto power of the Security Council’s five permanent members means that cases that threaten their interests will be blocked. In 2014, although many states called for an investigation into crimes being committed in Syria, and although justice was clearly urgently needed, China and Russia simply vetoed an ICC referral.
This leaves the ICC doing what it can within its mandate. In 2019 it launched an investigation into crimes against Myanmar’s Rohingya people, even though Myanmar is not an ICC member, because many Rohingya refugees have fled to Bangladesh, which is a member, and because crimes have been committed across the border between Bangladesh and Myanmar.
In March 2022, the ICC launched an investigation into war crimes in Ukraine, even though Ukraine is not an ICC member, after 39 ICC member states referred the situation to it. In May, the ICC sent its largest-ever team to Ukraine to gather evidence.
But if states refuse to cooperate, it’s hard to collect the evidence required or apprehend suspects, and several investigations have come to nothing due to lack of evidence or inability to arrest suspects. When it comes to Ukraine, Russia will clearly not hand over any suspect.
The US government has pledged to support the Court’s Ukraine investigation but stands accused of hypocrisy: it backed away from the Rome Statute because it feared investigation of crimes committed by US troops in Afghanistan. In 2020 it imposed sanctions on senior ICC officials in retaliation to the launch of an investigation into alleged war crimes and crimes against humanity in Afghanistan and crimes committed by Israeli forces in Palestine. This selective engagement with the Court hardly speaks to a commitment to the universality of human rights.
Such challenges partly explain why many of the ICC’s early cases focused on African countries: many African states quickly joined the ICC and powerful states, which at that time were less invested in African countries than they are now, were largely not worried their interests would be affected.
But when the most powerful people in African states were threatened, further limitations were revealed. The Rome Statute is unusual in international law in that it grants heads of state no immunity. They are supposed to be as subject to investigation and prosecution as anyone else. But this notion has come up against some hard political realities.
Kenya’s President Uhuru Kenyatta and Deputy Vice President William Ruto faced ICC prosecution over charges related to post-electoral violence in 2007, but ultimately charges were withdrawn. The Kenyan government was accused of withholding vital evidence and intimidating and bribing witnesses.
Despite the fact that arrest warrants against Sudan’s former leader Omar al-Bashir were issued in 2009 and 2010, he has continued to evade the Court even after being deposed in 2019. The hope that no one, however important, can escape justice is yet to be realised.
A continuing need
The fact that there have been just 10 convictions to date shows how slowly the processes of international justice move. But there is good reason for this: the ICC must ensure its investigations are thorough and any resulting convictions are watertight.
However, the ICC’s record of prosecutions is evidently patchy, with some perpetrators of major crimes not called to account in contexts where investigations have been thwarted. The ICC continues to face the essential challenge of operating in a state-centric world where heads of states assert narrow notions of self-interest and resist international checks on their powers.
This constrains the Court, but also make its all the more necessary. International bodies are needed to compensate for state failures. When states commit gross human rights violations, or fail to prosecute violations committed on their territories, the international system must be able to step in.
Despite the challenges, 20 years on, there’s reason to celebrate: some people have faced justice for vile crimes against rights who would have enjoyed impunity if the ICC did not exist. In at least some cases, victims of human rights violations have seen those who committed abuses pay.
This is why civil society will keep defending the ICC and urging more states to join it: not because they think it is a perfect solution, but because it offers a vital building block in helping make the world a safer and more just place.
OUR CALLS FOR ACTION
Non-ICC member states should ratify the Rome Statute.
ICC member states should commit to resourcing the Court properly and refraining from political interference.
Civil society, particularly in the global south, should push for universal ratification and the strengthening of the ICC.
Cover photo by legna69/Getty Images