International Criminal Law and Failings of the ICC

International criminal law and the failings of the icc

Historically, International criminal law viewed accountability almost purely through ‘the lens of the state’.[1] Today, institutions such as the International Criminal Court (ICC) exist to both define relevant international crimes, but also to implement their prosecution.[2] However, this effort is hindered by individual states’ conflicting approaches to international law as well as by a lack of support or, indeed an outright hostility towards the ICC and its mechanisms.

The Rome Statute or ‘ICC statute’ is the founding international treaty that saw the creation of the ICC and details its jurisdiction, structure and overall function.[3] The United States remains a non-state party to the Rome Statute after President Bush’s controversial ‘unsigning’ upon taking office.[4] Furthermore, the US has signed a number of agreements with ICC state parties to shield its own nationals from being surrendered to the ICC.[5] Currently, tensions between the US and ICC are high due to inquiries into war crimes in Afghanistan, with President Donald Trump communicating to the UN General Assembly:

“(The) United States will provide no support or recognition to the International Criminal Court. As far as America is concerned the ICC has no jurisdiction, no legitimacy, and no authority.” 

This tension and refusal of cooperation severely cripples the ICC and has “significant implications” for both the effective administration of the ICC and for international criminal law into the future.[6]

I Introduction

International criminal law developed due to an increasing number of international laws and treaties being introduced. Following conflicts like World War One and Two, as well as humanitarian disasters such as those in former Yugoslavia and Rwanda, the international community recognised the need for an international response to serious crimes, most notably genocide, war crimes and crimes against humanity. This response took the form of Tribunals, each responsible for their own crisis. Following this, the push for a permanent court became apparent.

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This essay begins with an overview of the lead up to the formation of the ICC and a brief discussion of its structure and processes. Following this, an evaluation of the Courts successes to date will be undertaken, including an exploration of the major obstacles that the ICC faces. A case study of the ICC’s relationship with the United States will serve to highlight the major inadequacy of the Court’s relationship with non-members, and how this relationship is responsible for many of the Courts flaws. Finally, a look to the future and a discussion about what lies ahead for the ICC and the broader application of international criminal law.

II Development of International Criminal Law

A Background

The rise of international criminal law can be traced to the ending and aftermath of the First World War, where international law as a tangible and recognisable regime began to emerge.[7] The Nuremburg and Tokyo military tribunals where the first in history to be granted jurisdiction over crimes that today are the epitome of international criminal law: Aggression, war crimes, genocide and crimes against humanity.[8] These early tribunals were the first institutions to determine that the individual was also responsible and liable for grievous crimes, and that only by punishing individuals could international laws be properly and effectively enforced.[9] While the Nuremberg and Tokyo tribunals have received negative commentary for their application of ‘victors justice’,[10] they still embody the first representation of international cooperation in the pursuit of criminal justice.

The next major development in the field of international criminal law occurred in response to mass atrocities that were committed during the breakup of Yugoslavia over the years 1989 to 1992.[11] The United Nations Security Council created the International Criminal Tribunal for the former Yugoslavia (ICTY).[12] This was followed by the formation of the International Criminal Tribunal for Rwanda (ICTR) after the genocide that claimed the lives of an estimated 800,000 people.[13] These two Tribunals were very similar in their construction and operation, empowered to prosecute persons charged with serious breaches of humanitarian law in their respective conflicts.[14] They enjoyed primacy over national courts for the crimes under their jurisdiction and could compel any state to cooperate with their investigations.[15]

As of 31 December 2017, both institutions have been wound up. The Tribunals were ultimately time consuming and incurred considerable expense during their operation, with some criticism also stating they displayed bias in their investigations.[16] However, the law and processes developed by the Tribunals has significantly impacted upon the development of international criminal law.[17] Specifically, many procedural matters have informed future practice such as in the area of protecting victims’ rights during trials and investigations.[18]

B Formation of the ICC

The idea of establishing a permanent international criminal court with jurisdiction over serious crimes had been in circulation since the conclusion of the Second World War.[19] In 1994, the International Law Commission (ILC) proposed a draft statute that envisioned an international court with jurisdiction over the four ‘core’ crimes as well as various treaty crimes such as organised crime and terrorism.[20] The UN General Assembly began working towards the creation of the court using this draft statute as a foundation.[21] Convening a committee during 1995, the debate highlighted the varying differences between states in their application of international law as well as their differing opinions on the powers of the future court.[22]

The original draft statute provided the court with ‘primacy’ that had been previously apparent to the ICTY and ICTR; however, during committee discussions a differing concept emerged – complementarity. This concept stipulated that the court would only be able to exercise jurisdiction if domestic courts were unwilling or unable to prosecute.[23] Furthermore, the committee insisted that the crimes of the court be clearly defined and not simply listed.[24]The work of the committee resulted in a five week-long conference in Rome which itself resulted in the formation of the Rome Statute of the International Criminal Court (Rome Statute) on 17 July 1998.[25]

The Rome Statute required the ratification of sixty states in order for the ICC to be created.[26]This was achieved rapidly, with the court coming into being on 1 July 2002. This date also represents the earliest that the court is able to prosecute crimes for, as the ICC is unable to investigate crimes prior to the entry into force of the act.[27] Once the court was legally established, the Assembly of States Parties was convened for the first session and adopted many instruments relating to the procedural operation of the court, as well as plans for the election of the eighteen judges and the Prosecutor.[28] The first prosecutor was elected in April 2003, and as such the ICC was fully formed.[29]

C Structure and Jurisdiction of the ICC

The ICC is not a subsidiary of the UN, but rather an independent organisation that is overseen by the Assembly of States Parties, all of whom are party to the Rome Statute. The ICC is comprised of four primary organs which together are responsible for the entire operation of the court.[30] The first organ is the presidency, made up of three judges who are responsible for the administration of the court.[31] The second constitutes the office of the prosecutor, an independent organ which determined if proceedings are to be initiated.[32] Both of these organs are supported by the third, called the Registry, which is responsible for providing operational support. This includes supporting the defence, victims and any witnesses. The final organ of the court is the Chambers, the actual court divided into three main sections: The Pre-Trial Division, the Trial Division and the Appeals Division.

Deriving authority from the Rome Statute, the ICC has jurisdiction over the ‘most serious’ of crimes that pertain to international law.[33] These are the four ‘core’ crimes of genocide, crimes against humanity, war crimes and aggression. The ICC’s jurisdiction is limited by the concept of complementarity, whereby national courts have primacy over the court. This effectively makes the ICC a court of last resort, unable to pursue matters that have already been investigated or prosecuted by state courts.[34]

Three primary mechanisms exist to trigger the courts jurisdiction. A state may refer the matter to the court, the Prosecutor may investigate and apply to the Pre-Trial Chamber for authorisation and finally the UN Security Council may refer the matter. These avenues for activating the court’s jurisdiction have all been used, most commonly used however is the self-referral by states.[35] This is likely due to the fact that an investigation is greatly enhanced when it has the support of the state in whose territory the offence took place.[36]

III Evaluation of the ICC
 

A Successes

The ICC, by global standards, is a young institution, having only been created in 2003. As such, it is very early to make conclusions about the overall effectiveness of the court and every success, no matter how small, must be celebrated. The first successes that the ICC enjoyed is primarily its popularity with smaller states. The Rome Statute was ratified by the sixty required states in only four years, a process some expected would take a decade.[37] Furthering this, an additional fifty-seven states have joined the court since then.[38] This highlights the global understanding that an international criminal court, of some description, was necessary and it continues to be a relevant instrument in international law.

Another success of the ICC is the solid structure of the court and the legal processes that govern its operation. The ICC’s decision  making is representative of common law principles, which means that ultimately the Judges are determining the verdict, not a jury, based on legal precedence and extensive knowledge of the law.[39] While this differs from the Australian system, and that of many other countries, the ICC in this way can eclipse the many different judicial systems that exists within the countries party to the Rome Statute.[40]

In 2010, a major success for the ICC is elucidated in a demonstration of the flexibility of the states party to the Rome Statute in adapting to changing circumstances.[41] The Conference in Kampala, Uganda took direction from the UN Security Council, but took further action by expounding on the crimes that the ICC’s jurisdiction should cover. Adding aggression to the list of war crimes ensured that despite the solid foundation granted by the Rome Statute, the ICC was able to add new amendments that would further extend its jurisdiction and ensure international peace going forward.[42]

A further demonstration of this adaptability occurred in 2009 when a Review Conference stated that an amendment should be created to include terrorism in the list of crimes falling under the ICC’s jurisdiction. Although the steps have not yet been taken to establish an amendment for a new inclusion, the foundation has been set. The flexibility and adaptability of the court and the Rome statute constitutes a major strength, enabling the court to continually grow and react to new situations and circumstances.

Ultimately, the successes of the ICC have been more in its procedural strength and its ability to grow, rather than on successful convictions of criminals or thorough investigations of crimes against humanity. However, for the ICC to remain a relevant institution, the support of the international community is paramount. As such, the successful operation of the courts main functions to date represent a significant strength.

B Failings and Major Obstacles

Despite the structural and procedural strength of the court to date, may nations view the ICC as a complete failure.[43] This is largely due to the low number of convictions in the first instance and even lower number of convictions upheld on appellate review.[44] In the words of former ICTY President Antonio Cassese, the ICC is a ‘giant without arms or legs’ due to its reliance on state cooperation to successfully investigate.[45] Beyond this poor record at trial, ICC proceedings take an inordinate amount of time.  Before requesting authorization to launch an investigation from the pre-trial chamber, the Prosecutor had engaged in a preliminary examination of war crimes in Afghanistan for more than ten years.[46] This delay strongly indicates that the time it takes for these investigations to mature is unacceptable, and end up costing an unsustainable amount, further limiting other investigations.[47]

The ICC relies on the help of states that have ratified the Rome Statute, such as to turn over suspects and provide support during the investigation. In practice however, this has rarely been the case. Many examples exist where the prosecutor has the necessary evidence, the warrant has been issued, but no trial can eventuate because the  accused is not handed over to the ICC for trial.[48] This was the case with Omar Al-Bashir, who was president of Sudan and charged with numerous crimes but did not face the court due to the unwillingness of states to enforce the warrant for his arrest.[49]

The most significant obstruction facing the ICC is the lack of support from key states, including three permanent members of the Security Council. China has not signed the Rome Statute and neither the USA or Russia have ratified it. In fact, in a controversial move President Bush actually unsigned it after the USA’s initial signing.[50] Without these states support, it is difficult for the ICC to enforce its rulings on the rest of the world.

Overall, the ICC has had very few successes in achieving what it set out to do. While this can partially be explained by the relative infancy of the court, the biggest issue facing the ICC is the unwillingness of states to cooperate and the refusal of world powers, primarily the USA, to provide support. Until these issues can be addressed, the ICC is limited in what impact it can have in effectively administering international criminal law.

C USA and the ICC

Even before the Rome Statute came into force and officially created the ICC, the United States had misgivings about the scope of the new court’s jurisdiction.[51] Originally, they supported an international court that was, in essence, subservient to the UN Security Council, where the US enjoys a veto privilege.[52] When it became clear that the court would be politically independent, the US became increasingly critical. While the Clinton Administration signed the statute at the last minute, this was almost immediately revered by the incoming Bush Administration.[53] This was the beginning of a more hostile stance towards the court.

After the court’s inception, the US began making many controversial bilateral agreements with smaller states in order to shield ‘US Peacekeepers” from extradition to the ICC.[54] Diplomats were successful in negotiating over 100 of these agreements; however, countries such as Canada, Mexico and those in western Europe refused to enter agreements that were an attack on the courts authority.[55] This general hostility continued in the form of Security Council vetos and threats of withdrawing US military assistance and only tapered off with the rise of the Obama Administration. Nevertheless, the US remained opposed to the court’s jurisdiction.[56]

More recently, The United States revoked the visa of the chief prosecutor, Fatou Bensouda, for her attempts to open an investigation into alleged war crimes committed by the US in Afghanistan.[57] No more than one week later, the Judges of the ICC rejected the prosecutor’s request to open an investigation.[58] This contest between the worlds foremost international court and a country that is self-styled ‘dedicated to the protection of human rights’ underpins the major flaw in the ICC’s ability to enforce international criminal law effectively.

The refusal of the US to cooperate with the ICC undermines the entire investigation into Afghanistan, which not only involves American military personal and the CIA, but actions of the Taliban and Afghan armed forces. These groups will, without US support, likely escape justice for these horrific crimes.[59] The US details that it has an ‘enduring commitment to the rule of law, accountability, and justice’,[60] but at the same time refuses to prosecute or investigate thee allegations itself. If a US court investigated the alleged crimes, it would render the case inadmissible to the ICC due to the complementarity requirement in the ICC’s jurisdiction. This is similar to the investigation into British troops in Iraq, but in this instance the United Kingdom has began interior investigations and prosecutions, resulting in the ICC’s investigation not being necessary.[61] It is unclear why the US will not follow this example. Furthermore, the USA’s strongest allies, such as Australia and Canada, are members of the ICC. The hypocrisy of the US in supporting the prosecution of war crimes, except against US citizens, is jarring.[62] Such action by the US is also shown to have had negative outcomes for their own foreign interests, whereby smaller nations turned to china as an alternative for both military assistance and financial aid.

Conversely, many commentators in support of the US position point instead to the failings of the ICC as a reason for the inability to investigate.[63] It is argued that while the ICC represents an admirable desire to punish persons guilty of the worst offences, it is flawed operationally.[64] These arguments have existed since the Bush administration, but most of the concerns expressed are either overstated or legally flawed.[65] This is further compounded by the reasoning given by the pre-trial chamber for its refusal to grant authorisation. While the Judges acknowledged that war crimes and crimes against humanity were committed in Afghanistan, they determined that a successful investigation was not possible. In essence, they acknowledged that ongoing U.S. opposition was likely to prevent an effective investigation, and so the matter was dropped. This constitutes a great failure to combat impunity.

Ultimately, the relationship between the US and the ICC is indicative of the struggle the ICC faces in becoming a truly independent administer of international criminal law. The refusal of the US to cooperate or conduct their own investigations highlights the limitations of the ICC when dealing with non-members as well as with uncooperative states. Until this stalemate is resolved, the ICC will find itself unable to effectively prosecute people guilty of the core crimes which are the ICC’s sole concern.

IV Future of the ICC

To guarantee the success and the ongoing stability of the ICC, its major flaws must be addressed, and its successes capitalised upon. The court is relatively young and as such more time may be needed for it to fully embody the ideals it is supposed to represent.[66] The biggest challenge here is the court fading into irrelevance or becoming too entrenched in the battles it currently faces. The chief prosecutor must work to position herself and the ICC behind the authority of the member states of the Rome Statute, so that it can fully commit to the investigation of humanitarian crimes worldwide.[67]

A priority should be placed on unifying state parties and establishing clear rules in regard to the arresting of suspects and assisting investigations. Some consequence must be apparent for states that refuse to cooperate or fulfil their duties under the Rome statute, such as sanctions or aid reduction. Additionally, the  ICC must attempt to bring the US on side. While a difficult process, the support and legitimacy that the US could bring to the court is worth the effort.

The court is currently stuck in a situation where nearly all of its investigations have targeted African nationals, a situation that is beginning to inspire African countries to doubt their involvement in the Rome Statute.[68]This is not helped by the continued exception of the US and other powerful countries from apparent investigation. It is essential that the court deals with impunity, ensuring that no one is above the law and immune from prosecution for committing atrocities.

The ICC to date has been relatively ineffective; however, the need for it has never been greater.[69] If the court is allowed to fade into irrelevance or become another ineffective international instrument, the fight against impunity would be irreparably damaged.[70] Even with its weaknesses, the ICC represents the first international court with real judicial power that can hold anyone to account for the most serious crimes.

V Conclusion

International criminal law has been developed over decades to deal with the worst crimes imaginable in our societies. The ICC was established to be the ultimate judicial body, capable of holding anyone to account for such crimes, regardless of status. While the courts inherent structure and processes have proven to be a solid foundation, the ICC is plagued by several key weaknesses that prevent it from attaining the power and respect it requires in order to operate effectively. The most significant of these weaknesses is the reliance upon individual states in the investigation process and the continued refusal of more powerful nations to recognise the courts authority. The USA’s continued fight with the court causes irreparable damage to international attempts to prosecute war crimes and has already resulted in the court being unable to make investigations into groups such as the Taliban. Moving forward, the court must address these areas of weakness if it is to become a global institution with the power to not only prosecute these crimes, but effectively deter them from ever being committed. Regardless of the outcome, the attempt to end impunity and have a unified judicial authority against heinous crimes is well worth the effort, and a continuing beacon in the field of international criminal law.

VI Bibliography

A Articles/Books/Reports

• Dimond, B.A, ‘When the ICC comes knocking, the United States Should Welcome It with    Open Arms’(2019), Washington International Law Journal 181.
• Gleider Hernandez, International Law, (Oxford University Press, 2019)
• Martha Minow, ‘Do Alternative Justice Mechanisms Deserve Recognition in International Criminal Law? Truth Commissions, Amnesties, and Complementarity at the International Criminal Court’ (2019) 60(1) Harvard International Law Journal
• Robert Cryer, Olympia Bekou, ‘International Crimes and ICC cooperation in England and Wales’ (2007) 5(2) Journal of International Criminal Justice.
• Roger O’Keef, ‘The United States and the ICC: the force and farce of the legal arguments’ Cambridge Review of International Affairs 24(3)
• William A Schabas, An Introduction to the International Criminal Court (Cambridge University Press, 4^th ed, 2011)

B Cases

• Prosecutor v Lubanga Diylo (Judgment) ICC-01/04-01/06-2842 (14 March 2012)

C Treaties

• Rome statute of the International Criminal Court (Adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 209

D Other

• Dan Donovan, International Criminal Court: Successes and Failures (23 March 2012) International Policy Digest < https://intpolicydigest.org/2012/03/23/international-criminal-court-successes-and-failures/>
• Human Rights Watch, US threatens International Criminal Court (March 15, 2019) Human Rights Watch  < https://www.hrw.org/news/2019/03/15/us-threatens-international-criminal-court>.
• James A. Goldston, don’t give up on the ICC (August 8 2019) Foreign Policy < https://foreignpolicy.com/2019/08/08/dont-give-up-on-the-icc-hague-war-crimes/>
• Janine Natalya Clark, Judging the icty: has it achieved its objectives? Southeast European and Black Sea Studies 9:1-2, 123-142.
• Mehari Taddele Maru, what is the future of the International Criminal Court in Africa? (6 February 2019) TRT World < https://www.trtworld.com/opinion/what-is-the-future-of-the-international-criminal-court-in-africa-23934>
• Steven Graves, Brett Schaefer, The US should not join the International Criminal Court (August 18 2009) Heritage < https://www.heritage.org/report/the-us-should-not-join-the-international-criminal-court>

[1] Gleider Hernandez, International Law, (Oxford University Press, 2019) 129.

[2] Ibid.

[3] UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998.

[4] Hernandez, above n 1, 452.

[5] Ibid 457.

[6] Dimond, B.A, ‘When the ICC comes knocking, the United States Should Welcome It with    Open Arms’(2019), Washington International Law Journal 181.

[7] Gleider Hernandez, International Law, (Oxford University Press, 2019) 440.

[8] Ibid.

[9] Ibid 441.

[10] Ibid.

[11] Ibid.

[12] Ibid.

[13] Ibid 442.

[14] Ibid.

[15] Ibid 443.

[16] Janine Natalya Clark, Judging the icty: has it achieved its objectives? Southeast European and Black Sea Studies 9:1-2, 123-142.

[17] Gleider Hernandez, International Law, (Oxford University Press, 2019) 444.

[18] Ibid.

[19] Ibid.

[20] Ibid

[21] William A Schabas, An Introduction to the International Criminal Court (Cambridge University Press, 4^th ed, 2011) 16.

[22] Ibid.

[23] Ibid.

[24] Ibid 17.

[25] Gleider Hernandez, International Law, (Oxford University Press, 2019) 446.

[26] Ibid.

[27] William A Schabas, An Introduction to the International Criminal Court (Cambridge University Press, 4^th ed, 2011) 17.

[28] Ibid.

[29] Ibid 18.

[30] Rome statute of the International Criminal Court (Adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 209.

[31] Gleider Hernandez, International Law, (Oxford University Press, 2019) 447.

[32] Ibid.

[33] Ibid.

[34] Ibid.

[35] Ibid.

[36] Ibid 448.

[37] Roger O’Keef, ‘The United States and the ICC: the force and farce of the legal arguments’ Cambridge Review of International Affairs 24(3) 355.

[38] Ibid.

[39] Ibid.

[40] Ibid.

[41] Ibid.

[42] Gleider Hernandez, International Law, (Oxford University Press, 2019) 450.

[43] Ibid.

[44] Ibid.

[45] Prosecutor v Lubanga Diylo (Judgment) ICC-01/04-01/06-2842 (14 March 2012).

[46] James A. Goldston, don’t give up on the ICC (August 8 2019) Foreign Policy < https://foreignpolicy.com/2019/08/08/dont-give-up-on-the-icc-hague-war-crimes/>

[47] Ibid.

[48] Ibid.

[49] Martha Minow, ‘Do Alternative Justice Mechanisms Deserve Recognition in International Criminal Law? Truth Commissions, Amnesties, and Complementarity at the International Criminal Court’ (2019) 60(1) Harvard International Law Journal.

[50] Gleider Hernandez, International Law, (Oxford University Press, 2019) 451.

[51] William A Schabas, An Introduction to the International Criminal Court (Cambridge University Press, 4th ed, 2011) 17.

[52] Gleider Hernandez, International Law, (Oxford University Press, 2019) 452.

[53] William A Schabas, An Introduction to the International Criminal Court (Cambridge University Press, 4th ed, 2011) 18.

[54] Ibid.

[55] Ibid 20.

[56] Ibid.

[57] Human Rights Watch, US threatens International Criminal Court (March 15, 2019) Human Rights Watch  < https://www.hrw.org/news/2019/03/15/us-threatens-international-criminal-court>.

[58] Ibid.

[59] Ibid.

[60] Steven Graves, Brett Schaefer, The US should not join the International Criminal Court (August 18 2009) Heritage < https://www.heritage.org/report/the-us-should-not-join-the-international-criminal-court>

[61] Robert Cryer, Olympia Bekou, ‘International Crimes and ICC cooperation in England and Wales’ (2007) 5(2) Journal of International Criminal Justice.

[62] Ibid.

[63] Steven Graves, Brett Schaefer, The US should not join the International Criminal Court (August 18 2009) Heritage < https://www.heritage.org/report/the-us-should-not-join-the-international-criminal-court>

[64] Ibid.

[65] Roger O’Keef, ‘The United States and the ICC: the force and farce of the legal arguments’ Cambridge Review of International Affairs 24(3) 355.

[66] Dan Donovan, International Criminal Court: Successes and Failures (23 March 2012) International Policy Digest < https://intpolicydigest.org/2012/03/23/international-criminal-court-successes-and-failures/>

[67] Ibid.

[68] Mehari Taddele Maru, what is the future of the International Criminal Court in Africa? (6 February 2019) TRT World < https://www.trtworld.com/opinion/what-is-the-future-of-the-international-criminal-court-in-africa-23934>.

[69] Martha Minow, ‘Do Alternative Justice Mechanisms Deserve Recognition in International Criminal Law? Truth Commissions, Amnesties, and Complementarity at the International Criminal Court’ (2019) 60(1) Harvard International Law Journal.

[70] Ibid.