Understanding the International Criminal Court

 

Like many intergovernmental agencies or entities, the International Criminal Court (ICC) in the Hague is, generally speaking, little understood and even less valued in the United States. In the international community, the court is often either hailed as a remarkable development in international justice or starkly criticized as remote and ineffectual. Recent more damning criticisms dismiss the whole enterprise as Neocolonialist. But what actually can the court do and what has it done? This is a story that could be told in many ways involving deep historical and legal analysis. But it has also been a numbers game where location is deeply relevant and so I attempted to tell a very simple version of that story using maps made with Datawrapper. I am indebted to former ICC prosecutor Luis Moreno Ocampo and Harvard Kennedy School professor Kathryn Sikkink, whose January term HKS class “Preventing Mass Atrocities: Preventing Mass Atrocities: The Security Council and the International Criminal Court,” provided much of the background information.

ROME STATUTE 

In the more than half century since the Nuremberg Trials, there have been a number of one-off experiments with international and local transitional justice (the international tribunals for the former Yugoslavia and Rwanda, Timor-Leste, Sierra Leone, Cambodia, Argentina, Guatemala etc.). But proponents of international justice dreamed of establishing a single court that would have jurisdiction to try grave cases of human rights abuses around the world and whose moral and legal authority would hopefully prevent such crimes from occurring in the future. After years of wrangling, the ICC was established by the Rome Statute, which was adopted at an international diplomatic conference in 1998 and came into force in 2002.

There was of course a catch (several in fact) and limits on its authority and powers. The most significant being the court only has jurisdiction over those States that are parties to the statute (or committed crimes in territories that are parties). The exception to this rule is cases that have referred to the court by the United Nations Security Council.

The above map and numbers of countries that have signed looks pretty impressive, until you realize who is missing – namely the United States, Russia, China and most of the countries of the Middle East. That’s more than half the UN Security Council and the countries where many of the worst conflicts of the 21st century are occurring. To some degree, the court merely holds a mirror to existing international power dynamics that govern our world. The ICC’s defenders would say it is unfair to expect the court to surpass these realities. But for an entity whose stated mission includes preventing future atrocities from happening, the fact that no one responsible for the horrific crimes occurring in Syria is likely to step foot in its chambers–unless there is a dramatic geopolitical shift–is a brutal blow.

Beyond jurisdiction, the court’s mandate only allows it to try cases that meet the threshold of genocide, war crimes, crimes against humanity or the less-tested crime of aggression.  A case can only be prosecuted if it has been established that the appropriate State is unwilling or unable to genuinely do so itself.

THE COURT’S RECORD

Preliminary Investigations

Some of the cases that have undergone preliminary investigation test the third-party territorial jurisdiction clause (ie the United Kingdom for crimes committed in Iraq, the registered vessels of Comoros, Greece and Cambodia for the flotilla incident with Israel)

These are cases that are deemed not to meet the statutory requirements of the court.

These are cases that are ruled to meet the requirements for further investigation.  This is where the geographic concentration of cases begins to become apparent.

Cases

 

 

 

The collapse of the court’s case in Kenya has been a source of much concern and seen as a bad omen for the court’s future.

 

This includes noteworthy cases such as the Gadaffs in Libya (the case against Colonel Muammar Gaddafi for crimes committed during the Libyan revolution was dropped with his death, there is an arrest warrant out for his son Saif al-Islam Gaddafi, but he is being held by a militia in Libya),  Sudanese President Omar al-Bashir (his arrest warrant, the first against an active head of State, has been routinely flouted by African and Middle Eastern countries to which he he has travelled freely), and Joseph Kony in Uganda (the online video “Kony2012” may have been a viral sensation but has had no visible impact on securing his capture).

 

 

These last maps should make apparent the main criticisms lodged against the court – that convictions have been few, that without a tool to enforce arrest warrants it will remain impotent and, most recently, that the pronounced focus on African countries is a sign of its colonialist intentions (and have resulted in the threat of the withdrawal of several African nations from the Rome Statute).

Proponents of the ICC mostly acknowledge that the court has its flaws that could be improved, but defend the cost and pace of the convictions by explaining the complexity, scope and ambition of what it trying to be achieved. They look to recent developments in Latin America as a sign that the court’s preventative potential may be working. The enforcement dilemma, they say,  is ultimately one of political will that must be worked out through advocacy and diplomatic channels. And the charges of neocolonialism have been vehemently denied by the current Gambian and former Argentine prosecutors of the court, who argue that those criticisms betray a lack of understanding of the court’s statutory limitations and are an excuse for brutal dictators to evade justice.

Ultimately, the ICC may be the best tool we have in an imperfect world. After all without it, former ICC prosecutor Luis Moreno Ocampo has asked, “who else will fight for the victims?”

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