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On the Failed Authority of the International Criminal Court

In his 1958 novel Exodus, Leon Uris asserted that “international law is [the] thing which the evil ignore and the righteous refuse to enforce.” Nonetheless, nearly half a century later, an ambitious experiment in global justice began. Recognizing the need for a permanent and autonomous global court, a conference of 160 states led to the signing of the Rome Statute and the establishment of the International Criminal Court. It was intended to complement state-run criminal justice systems, and was to intervene only when nations were unable or unwilling to prosecute a perpetrator.

The ICC’s vision was to offer victims justice and act as a deterrent to war criminals – but from the outset, it has proven to be unable to achieve its lofty and idealistic goals. Its ineffective operation all but renders it impotent, and its culture of hypocrisy and patent double standards further hinders its legitimacy. And the gravest threat to its existence – and hallmark of its great failure – is its risk of becoming irrelevant. As such, the ICC is in need of drastic reform to restore its all but failed authority.

Judicial Impotence

Perhaps the greatest cause for concern among outsiders is the ICC’s apparent lack of effectiveness. Far from becoming a tyrannical body as some feared, its inherent weaknesses and inability to operate efficiently have undermined its perceived legitimacy around the world. As an international body, the court derives its power from its member states.

But the Rome Statute lacks powerful signatories, including the United States, who feared its own soldiers could be tried for war crimes. In addition, the reluctance of Asian and Arab states to join worsens an already “uneven jurisdictional landscape,” writes David Bosco, an associate professor at Indiana University. This makes it difficult for the ICC to achieve the effective global representation that a purported ‘international court’ should – in fact, only two of the UN Security Council’s five permanent members are ICC participants. (The International Cricket Council, for what it’s worth, fares better on this count.)

The court’s track record in its first decade of existence was also meagre. To date, it has convicted only four people, all the while accumulating a lifetime cost of more than $1 billion. This has sharpened criticism for the court’s “glacial proceedings,” as Kyle T. Jones puts it. The vast amount of resources being poured into often unproductive investigations could well be put to more effective use along humanitarian lines, or to fund UN peacekeeping forces.

Furthermore, the organization’s deep institutional bureaucracy undermines many fundamental principles of justice. Jones notes that the lethargic pace of ICC investigations, for instance, raises a philosophical concern over the court’s “demonstrated inability to assure the right to trial without undue delay.” On a utilitarian level, it also raises doubt about the court’s ability to deter future wrongdoers. But these are the basic tenets of any criminal justice system; a UN-sanctioned court’s failure to deliver them is consequently disconcerting.

Undercut by Double Standards

Another issue is the court’s apparent culture of hypocrisy – its intended goal of impartial justice is undercut by the double standards which it appears to harbour. For one, the ICC has conducted a disproportionate number of investigations into African states. Even given the persistent conflict on that continent, critics argue that for an institution with a global mission and an international staff, its priorities are very clear – more than twenty-four Africans have been indicted by the court. To this end, a senior Rwandan official observed that while “there is not a single case at the ICC that does not deserve to be there…there are many cases that [do] that aren’t there.”

The court may also be seen as hypocritical because its work sometimes induces negative, rather than positive, consequences. Bosco notes that after launching an investigation into Sudanese president Omar Hassan al-Bashir in 2009, a chilling of relations “torpedo[ed] chances for a negotiated solution to that country’s conflicts.” Similarly, Kenyans elected Uhuru Benyatti – indicted by the ICC for crimes against humanity – to the presidency after he painted himself as a victim of Western powers, helping him to attract the anti-colonialist vote.

The court’s double standards are further demonstrated by its troubling proximity to state power. Given its fragility, the ICC finds the notion of provoking major powers such as Washington, Beijing, or Moscow almost unthinkable, instead pursuing African dictators while other powerful figures evade investigation altogether. Moreover, since resolutions to expand the court’s jurisdiction are handled by the UN Security Council, any one of its five permanent members can veto them – in particular, Russia and China have declined investigations into Syria, Sri Lanka, Pakistan, Iraq, and North Korea. The court’s complex interplay in global politics is in direct contradiction to its claims of impartial justice, and this ultimately results in stricter justice for certain parts of the world.

Existential Threats

Finally, the ICC’s authority has been challenged by the threat of becoming irrelevant: given the current state of global affairs, the court must overcome numerous challenges if it is to survive in the long term. The most immediate threat is the looming possibility of a mass exodus by African member states. In early 2017, the African Union backed a non-binding resolution calling for the mass withdrawal of all its ICC participants, while Burundi last October became the first African country to leave the ICC.

Though some of this may simply be rhetoric and much ado about nothing, the reasons behind the calls for withdrawal are nonetheless problematic. Kenneth Roth, the executive director of Human Rights Watch, points out that leaders accuse the court’s African focus as being unfair and even “a modern-day form of colonialism.” And while many in the African public support the ICC, Jessica Hatcher-Moore notes that many victims “do not see justice as incarceration; that is not their concern.”

Rather, they prioritize peace and stability in their struggling nations. In any event, the mere possibility of losing a vast swath of its founding member states – and representation on an entire continent – is frightening.

The rise in anti-globalist attitudes in the Western world also poses a threat to the ICC. In particular, with the United States’ present embrace of nationalism and “disdain for globalized organizations,” President Trump has signaled his intention to slash funding for these programs. While the U.S. is not an ICC member, it plays a significant role in sharing intelligence, supporting logistics, and funding reward programs. Should Trump follow through, the court would face a major existential threat. In the face of the court’s setbacks, some states have been forced to turn to alternative institutions for international justice. Africa, for one, has proposed its own alternative – the African Court of Justice and Human Rights. As the world looks elsewhere, the ICC continues to face further losses of relevance.

In short, the International Criminal Court’s perceived authority has been severely hindered by its impotence, corruption, and loss of relevance, leaving it in desperate need of significant reform. All told, the challenges faced by the ICC represent important lessons for diplomats, scholars, and visionaries alike. As long as these lessons can be implemented through meaningful reform, there is hope for the organization – in time, and under capable leadership, they will only serve to strengthen the institution and its resolve in an era when international justice is more polarizing than ever.