After the completion of a decade of coming into force of the Rome Statute that established International Criminal Court (ICC), a review of its working has produced a mix of feelings among jurists and commentators worldwide.
ICC is the first permanent international court of its kind authorized to investigate, charge, and try people suspected of genocide, crime against humanity, and war crimes globally. By now about two-thirds of the UN membership, 121 nations have already ratified the treaty and consequently have assumed legal obligations to cooperate with the court.
Following years of arduous multilateral negotiations involving 150 nations in the 1990s, the International Criminal Court was created in 1998 in an extraordinary spate of judicial institution-building. In the opinion of Richard Dicker, ICC is the address for international criminal accountability. It is different from earlier ad hoc tribunals such as International Tribunal Court in former Yugoslavia (ITCY) and International Tribunal Court in Rwanda (ITCR) set up to deal with the most serious cases of human rights violations in the aftermath of Cold War’s demise.
ICC marked its tenth anniversary in July this year having been operational since 2002. David Bosco in an article “Justice Delayed” carried by the recent issue of Foreign Policy argues that ten years later the ICC is still on trial. In the life of an institution like this which is beset with the limitations of consent-based jurisdictional regime, not surprisingly the court faces both procedural and performance-related obstacles.
The ICC operates under certain conditions. Foremost, the court examines only those cases which are considered to be the examples of most serious concern to the international community. It can take up cases if either the state on whose territory the crimes occurred or the state of the nationality of the accused has ratified the treaty and has failed to do its own investigations convincingly.
The prospect of ensuring a more level international playing field for justice persuaded the countries to join the Rome treaty although it took 14 long years to become effective in July 2002.
A critical assessment of the court’s functioning heretofore reveals that the above expectation of the international community has not been met notably because of the double standards of both current and rising superpowers. Three incumbent permanent members of the UN Security Council such as China, Russia, and the U.S. have not yet ratified the Rome Statute.
More annoyingly these powerful players of international politics have insulated themselves from the ICC through non-ratification and vetoes. Can one imagine the ICC’s investigations against Arab accusations of serious human rights violations by Israel against the probability of U.S. veto? So is the case now with Syrian president who has been accused of mass murder of opponents as any ICC intervention in this regard will immediately invite the Russian wrath. Therefore, Richard Dicker through his Foreign Policy essay, ”The Court of Last Resort” has aptly observed that “ Syrian case scars the global terrain on which the ICC works, making it with an ugly unevenness where the same law does not apply to all”.
Looking back at the history of the court one feels that during infancy ICC faced a very hostile superpower, the U.S. which had even voted against the Rome Statute in 1998 along with Iraq, Israel, and Libya. In 2002 the American government of George W. Bush was even using its political might as a veto-wielding member of the UN Security Council to constrain the reach of the ICC.
Not amazingly junior Bush administration signed a legislation directing the U.S. to cut off international aid to any country reluctant to sign a pledge refusing to send U.S. citizens to The Hague, the headquarters of the ICC. The legislative measure went further authorizing the president to use “all necessary means” to free Americans held by the court.
However, the court has achieved some success in launching investigations in 7 countries. It has also brought charges against 28 individuals, more significant of whom are the Sudanese president Omar Hassan al-Bashir and former Ivory Coast president Laurent Gbagbo and notorious Lord Resistance Army commander Joseph Kony. No less important is the role played by the court in the referrals made by the UN Security Council in connection with situations in Sudan and Libya. The UN Security Council resolutions giving the ICC jurisdiction where it had none before have given the impression that the court is gradually being brought into the center of international efforts to manage conflicts.
Nevertheless, the current status of Libya’s ICC suspects such as Muammar al-Qaddafi’s son Saif al-Islam reflects another failure of support for the court. The starkest crisis in the court’s institutional life is seen in the detention of ICC defense lawyer and his staffers visiting the suspect in Libya by a militia in the country that is holding Saif al-Islam.
One can recall the sense of pride felt by those in the Security Council chamber when the UN passed an unanimous resolution on February 26, 2011, deciding to refer Libya to the court. But now all three players and permanent members like the U.S., UK and France seem to have lost their interest in advancing the Libyan case in the court. Disturbingly, they are saying that the justice for the past crimes is in the hands of the Libyan people. Moreover, the loss of interest on the part of the court to investigate serious crimes committed by Qaddafi’s opponents prompts the critics to argue that ICC is focused on victor’s justice.
Considering the fact that the U.S. and key emerging powers like China, India and Turkey have still remained hesitant to ratify the Rome treaty, the current geopolitical winds do not appear to be blowing in ICC’s favor. The court’s selective investigations may also reinforce the conception that it is being used as an instrument to further the political agenda of the big powers rather than champion international criminal accountability.