The world is very different than it was in 1998. For that brief period at the turn of the century human rights dominated the international agenda. In the aftermath of the horrific crimes committed in the former Yugoslavia and Rwanda, the initiative to develop a permanent system of international justice caught the imagination of the vast majority of states and civil society groups around the globe.
Disturbingly, since 9/11, states support for such ideals has waned. The Statute adopted in Rome would not see the light of day if the negotiations took place now. Armed conflicts are as prevalent as ever, with civilians continuing to experience the brunt of the violence. “Wars” on terror and drugs, as well as repression and exploitation by state and non-state actors, including corporations, have escalated in almost all corners of the globe. Extremist politics advocating religious and racial hatred, misogyny and persecution of marginalized groups have gained traction in a disturbing number of states. Abuse of power has been exposed almost everywhere that power exists.
In the aftermath of the crimes committed in the former Yugoslavia and Rwanda, the initiative to develop a permanent system of international justice caught the imagination of the world
In this context, the system of international justice developed in Rome should stand as a beacon of hope for accountability – the ICC a powerful mechanism to hold abuse of power in check. Instead it is barely relevant. This is only partly due to the UN Security Council’s shameful record of refusing to refer situations like Syria to the ICC Prosecutor.
For the most part of the ICC’s work since its establishment in 2002, the Office of the Prosecutor (OTP) has been too meek in calling on national authorities to fulfil their primary obligations to deliver justice in situations where it has jurisdiction; too accommodating in its consideration of deeply flawed national justice efforts; too slow in opening investigations, except in Africa; and too reluctant to pursue justice against those holding positions of power, particularly at the state level. Where the Court has stepped in, its adherence to fair trial rights in some cases and its inconsistent treatment of victims in the proceedings have fallen well short of serving as a model of justice. The level of support, cooperation (in particular arresting and surrendering suspects) and resources provided by states parties to the Statute has been and remains hopelessly inadequate.
The reality is that with crimes against humanity and war crimes being committed at alarming rates, the ICC is currently conducting three trials with few others in sight.
For these reasons, regrettably, there is little to celebrate around the 20th anniversary of the Rome conference. Instead, the milestone marks a crisis point in international justice from which there is no easy way forward. The ICC faces a long hard road to establish its credibility in light of its initial failures, including navigating an unambitious Assembly of States Parties and regaining the confidence of disappointed civil society groups.
To its credit, the ICC has started to take significant steps to strengthen its work, although much more must be done. The OTP’s strategies on preliminary examination, case selection and addressing sexual and gender based crimes (overlooked in some of its first cases) will go a long way to addressing many of its flaws, provided they are fully, transparently and consistently implemented. The Court is also taking important steps to review the low level of legal aid it provides to the defence compared to other international criminal courts and to improve its strategy in relation to victims.
We do not accept the paradox that legal responsibility should be the least where power is the greatest
New efforts by the Office to launch an investigation in Afghanistan, including on allegations of torture by US forces, and to open a preliminary examination into killings committed in the context of the Philippines government’s so called “war on drugs” campaign are significant steps towards finally repairing some of the damage caused by its myopic focus on non-state actors in Africa. Moreover, such measures, that take a stand against the worst abuses of power falling under the ICC’s jurisdiction, are vital to establish the Court’s relevance at this point in history.
The notion of employing international criminal law to bring power to justice is not revolutionary – it is at the core of the international criminal justice project, although appallingly implemented. Robert H. Jackson stated in 1945: "We do not accept the paradox that legal responsibility should be the least where power is the greatest. We stand on the principle of responsible government…that even a King is still 'under God and the law'."
A number of provisions of the ICC’s Statute (notably Article 27 on the irrelevance of official capacity) specifically equip the Court to prosecute those in positions of power. The OTP’s obligations to perform its functions with independence, impartiality and objectivity implicitly mandate the Office to confront and not to shy away from the most politically challenging investigations and cases.
Of course, bringing power to justice is never easy. Advancing such efforts may appear politically counterintuitive at a time when the Court is often denied the support it requires from states and Sudanese President Omar al-Bashir continues to evade arrest and surrender to the Court. But the ICC is not and must never become a political institution. It is a judicial body and its strength depends first and foremost on its integrity, impartiality and independence in pursuing justice.
In order to hold power to account, the ICC’s exercise of its own powers must be beyond reproach in all situations. Consistent with its mantra ‘without fear or favour’, the OTP must vigorously pursue justice everywhere it has jurisdiction, regardless of the political obstacles or consequences. Its immediate priorities should be to open a long overdue preliminary examination into allegations of crimes against humanity committed in the context of the so-called “war on drugs” in Mexico and to reach prompt, transparent and convincing decisions on whether to open investigations into crimes committed in Colombia, Guinea, Iraq, Nigeria, Palestine and Ukraine. All of its investigations must consider the criminal responsibility of both state and non-state actors, including expanding the scope of its inquiries to target corporate complicity, where relevant.
Inevitably, bringing power to justice invites a volatile relationship with states. This is an unavoidable consequence of an independent ICC and will be an ongoing challenge for the Court. As South Africa’s ongoing efforts to withdraw from the Statute shows, even the strongest supporters of the ICC can be fickle when their geopolitical interests are affected by the Court’s activities. Nonetheless, the likelihood of political attacks and challenges in securing the support, cooperation and resources must not weaken the ICC’s resolve.
Regrettably, the Court’s conviction in the face of such political pressures has too often been lacking, as demonstrated when the President of the ICC obsequiously remarked at the last Assembly of States Parties that "‘the 20th anniversary offers a golden opportunity to discuss whether the ICC community is ready to sustain in the next 20 years a strong and effective Court.’"
As an independent prosecutorial and judicial body, the ICC should never throw itself at the mercy of states in this way.
Instead, the onus is on the ICC to lead its way out of the current crisis with a clear vision of its work and conviction in the demands it makes of states parties – no matter how unpopular they may be with some. To start with, it must stop allowing pressure by Canada, France, Germany, Italy, Japan and the UK to influence the level of its annual budget requests and demand the resources it needs to function effectively for 2019 and future years.
The ICC's strength depends first and foremost on its integrity, impartiality and independence in pursuing justice
Although state support cannot always be guaranteed, it will be more likely if the ICC regains the active support of the thousands of civil society groups that supported its establishment and if the Court wins broader public support for its work. Although many civil society groups are disappointed with the work of the ICC to date, they will no doubt get behind the Court if it expands its efforts to ensure justice for victims. With more sophisticated media, public information, and social media strategies advocating the ICC’s work to ensure justice for the worst abuses of power, the ICC has the potential to capture the imagination of millions of people.
At some point this year, someone will inevitably ask whether the ICC will be around in another 20 years? But the aims of international justice should not be limited to the mere survival of its institutions. The more immediate question is whether the ICC will be the just, fair and effective Court that was dreamed of in Rome? This is still well within reach if the Office of the Prosecutor is more ambitious and consistent in its efforts to bring those responsible for the worst abuses of power to justice and if the Court is willing to fight for the support that it requires.