Alex Whiting is a Professor of Practice at Harvard Law School focusing on domestic and international criminal prosecution issues. He served in the Office of the Prosecutor at the International Criminal Court (ICC) in The Hague from 2010 to 2013. The Harvard International Review sat down to talk about recent dissent regarding decisions of the ICC and its evolving role in international justice.
What do you think the current most important functions of the ICC are?
The ICC is a legal institution, constrained by a statute adopted by treaty. There are 123 countries that have now signed onto the treaty. The most important function is for the court to investigate and prosecute allegations of war crimes, crimes against humanity, and genocide that fall under the jurisdiction of the court. There’s lot of discussion of the political effect of the court, but the court’s work is judicial and legal and that is what it has to focus on.
Would you say the ICC is more for deterrence or justice? How does it work within the complexities of the current international system?
I think the court serves a number of different functions. People have different views on what is most important. It brings justice to victims of crimes. Of course, it does this in an incomplete way, because it can only prosecute a few crimes a year. Because the court is based on the principle of complimentarity, which means that states have the primary obligation to investigate and prosecute crimes and that the ICC only comes into play as a last resort option, the court also has some motivating function. It motivates states to fulfill their obligations to investigate and prosecute these sorts of crimes. So, it itself will only take a few cases, but, by doing those few cases, it tries to motivate other state actors to prosecute cases themselves.
There is a controversy or dispute over whether the court can have a deterrent effect. It’s always hard to prove how prosecutions deter crimes. Even in our domestic system, that’s a challenge. And it will never be the case that all crimes will be deterred. But I think at the margin the court can affect behaviors, and there is starting to be evidence of that.
What might be some examples?
There are very specific examples, and there is also emerging data that is starting to show broad trends. For example, the first case the ICC did was the prosecution of Thomas Lubanga from the Congo for conscription and enlistment of child soldiers. There is some evidence that, as a result of that prosecution, some child soldiers were released in Nepal. That is a specific example of a direct effect. But there is also work being done, by Kathryn Sikkink and Beth Simmons for example, that is beginning to show some evidence that countries that engage in accountability see less abuse of individual rights afterwards. So, there is some emerging evidence. And remember this is a relatively new process: the court has only existed for the last 20 years, but there is some evidence that these prosecutions are having some deterrent effect.
What do you make of the fact that South Africa has declared an intention to leave the ICC?
That was the result of the controversy that surrounded [Sudanese President] Omar al-Bashir’s visit to South Africa. Omar al-Bashir is wanted by the ICC—there is a warrant out for him for genocide and crimes against humanity in the Sudan. South Africa is a member of the court and had an obligation to arrest him and surrender him to the court when he visited. It’s become a hot issue within South Africa because a group brought a complaint to court, and the judiciary is now in the process of reviewing the government’s actions. As a result, the government has threatened to leave the ICC. I do not think they will; these kinds of threats have occurred before among some countries. I think, of course, if countries do start to leave the court, that would be obviously a blow to the court, but I don’t think it will happen.
In an odd way, South Africa's reaction shows the relevance of the court and the power of the law.
I also have to say that the whole controversy in South Africa about the al-Bashir case—and even South Africa’s threats about leaving the court—shows that the court still matters. They’re not ignoring the court; they're paying attention and obviously reacting to the pressure and attention they got as a result of their actions. In an odd way, South Africa's reaction shows the relevance of the court and the power of the law.
South Africa has cited racism—or at least the trend of prosecutions in Africa—as a reason to leave the court. How does the ICC decide where to prosecute, and what do you make of these allegations?
The ICC is constrained by statute. It cannot do cases anywhere in the world; it can only do cases in countries that are members of the court, countries that self-refer, or if the Security Council refers cases to the court. That means the court, for example, currently does not have the authority to prosecute in Syria because those conditions have not been met. The court has not been selectively prosecuting in Africa. Almost all the cases have come to the court because the country self-referred or the Security Council recommended. There is only one case the court pursued on its own: the Kenyan case. The court has ended up doing its cases in Africa because that’s where it has jurisdiction and because crimes have been committed there.
Part of this is a framing question, too. If you look at the international criminal prosecutions overall, since WWII, since the beginning of international prosecutions, since Nuremburg, or even if you only look at the modern efforts starting with the Yugoslavian cases in 1993, the continent with the most people prosecuted is not Africa but in fact Europe. It is the particular feature of the ICC because of when and where the court has had jurisdiction that it has been focused on Africa. Other tribunals focus on crimes committed elsewhere. I do think that there is an underlying problem: the court does not have universal jurisdiction. That is the real problem. It is not the selection of the court; that is determined by statute and where the crimes are. It is the fact that there are 123 states that are parties to the statute, but there are so many countries that are still out of the court.
There are countries outside the jurisdiction of the ICC including major powers—the United States, China, and Russia, all of which as members of the Security Council—that have the power to refer cases. Would you say this is a concern for the court?
Yes, that’s right: many of the major powers are not in the court, such as the United States, China, Russia, and India. And the Security Council does have the power to refer cases to the courts. It has done that twice, in Sudan and Libya. In the early years, many people saw these referrals as a positive development and an affirmation of the power of the court and the kind of support from the major powers for the functioning of the court. Since then, people have become more concerned about the ability of the Security Council to send certain cases to the court and not others. And that brings us back to the problem that I was talking about before, that the court is not universal. The reality is that this kind of selectivity has always been a feature of international criminal law, with Nuremburg, with the ad hoc tribunals, and it continues with the ICC. The solution, I think, is not to get rid of the ICC or to leave the ICC. The solution is to find ways to expand the jurisdiction of the court.
Why do you think the United States is so adamant against joining the ICC?
I think there are lots of reasons and different people might have different reasons. But I think the fundamental problem is that there was, at the time the statute was adopted and ratified, anxiety that the prosecutor of the ICC had too much independence and could be political in his decisions. Essentially, there was a concern that there could be politically-motivated prosecutions against the United States.
There is also a tradition in the United States about being anxious—not a tradition that everyone adopts, but a tradition—about surrendering any sort of sovereign authority to an international body. I think that the thirteen years of the operation of the court since it started in 2002 has shown that the court is not political. It is responsible, follows the law, and is cautious in its decisions. I hope that, as the court continues to build that track record, the United States will one day decide that this is an institution that would benefit US interests to join.
Is jurisdiction expanding right now?
Yes. So in 2002, the court had approximately 60 nations under its jurisdiction. It was able to become operational at that 60 mark. Now it has 123. An additional 63 countries have joined in the last 13 years, which is a major positive development. The court continues to try to expand further and encourage other countries to join. It is a slow, difficult process, but hopefully the track record of the court will encourage countries to join.
What would you say are the current major issues the court faces, in terms of expanding jurisdiction and legitimacy?
I think that the two main challenges that the court faces are: first to continue to move towards universality, as without universality there will always be accusations of selectivity, which undermines legitimacy. And second, ensuring that countries that are members of the court continue to cooperate and continue to support. The court is built almost entirely on state cooperation. It has very few independent powers, so it only be successful if the members continue to support its prosecutions.
So if a country refuses to cooperate—either in terms of mandate or in terms of providing evidence—what happens?
The court is very reliant on state cooperation. For example, in Sudan, the court received very little cooperation and had to rely on a lot of outside evidence from outside the country: documentary evidence, interviews, witness evidence that left the country, or personnel that was able to gather information and bring it to the court. And for arrests, for example, South Africa’s case, the court has no specific arrest powers. Prosecutors cannot travel the world and arrest people; that has to be done by the state. If al-Bashir goes to South Africa and South Africa refuses to arrest, the court has no power to arrest. The only recourse to the court is to refer South Africa’s refusal to cooperate to the assembly of state parties, and then the assembly can do what it can to try and promote cooperation, but that’s a difficult process. Gathering evidence or doing arrests when countries don’t cooperate isn’t impossible—oftentimes there are alternatives, for example in Sudan, even when Sudan didn’t cooperate, but it makes it difficult.
It’s quite impressive the court has been so successful given those constraints.
I agree. Certainly, going back to 1993, when the international criminal justice process started, nobody would have predicted that we would have had the successes that we have had so far. From that perspective, it is remarkable how far we have come in a little over two decades. But, of course, this is an area where people have high expectations and high hopes. Victims want justice, and everyone wants equal justice, so there is a lot of pressure for the court to do more and do better.
What do you think the next big ICC case might be?
The prosecutor’s office has just asked the pre-trial chamber for authorization to investigate in Georgia. If it’s granted, and I think it will be, that will be first ICC investigation outside Africa. Whether cases will emerge from that, it’s hard to say. It’s very hard to predict what the future cases will be because a lot depends on opportunity and, frankly, on the will of countries to support the court. Tomorrow, we could wake up and discover that Omar al-Bashir has been arrested and surrendered to The Hague. I wouldn’t bet on it, but it could happen. Other fugitives could too—Joseph Kony might, for example. Or the court could find evidence in Georgia and that could be the next big case.