Beyond Justice's Reach, Part 2: The Risks, Rewards, and Future of the International Criminal Court

Beyond Justice's Reach, Part 2: The Risks, Rewards, and Future of the International Criminal Court

. 11 min read

This is part 2 of a 2 part series on the International Criminal Court. Click here to read part 1.

The International Criminal Court is a permanent international tribunal based in the Netherlands seeking to end impunity for crimes against humanity and create lasting global peace. But historically, its limited jurisdiction allowed war criminals to evade justice and left countless atrocities unhindered. The Rome Statute only binds willing state parties accountable to the court’s purview, and very few powerful nations are willing to ratify the agreement. With Africa being singled out as the prime continent for defendants, the rest of the world’s international crimes go untested by the ICC. The focus of the court’s past convictions brings into question the ability of the court to investigate abuses around the world, and the powers influencing the ICC’s oversight.

Palestine and Israel

For years, various abuses along with the annexation of large swathes of Palestinian territory by the Israeli government has drawn the attention of many international actors seeking to characterize the struggle as an issue of international law, among other lenses. This is a more than legitimate methodology by which to understand the plight of Palestinians, albeit not the full picture.

The Palestinian authority now jumps at any hope that it may find some relief in the judiciary of the ICC. On Thursday April 30, 2020, Palestine announced its complete support for the ICC to take measures in support of its case. What was this case, after years of inaction by these international authorities? The ICC was not ready to try members of Israeli parliament for crimes of aggression or annexation, nor was it even preparing to arraign soldiers of the Israeli Defense Force (IDF) for the wholly unprovoked murder of Palestinians like Ahmad Erakat and Iyad Halak. Instead, Chief Prosecutor Fatou Bensouda announced that the ICC would simply begin its probe into ‘possible war crimes’ in the country. For Palestinian Foreign Minister Riad al-Maliki, that was enough to at least illustrate a move towards ICC territorial jurisdiction over Palestine and Israel.

While Palestine signed and ratified the Rome Statute in January 2015, Israel has yet to do so, and the former is not even universally recognized as an independent state. Bensouda’s statement of intention to investigate crimes in Palestine labeled the territory as a state, thereby granting under Article 12(2)(a) of the Rome Statute that in such a scenario, the ICC would have the authority to exercise jurisdiction over such legally defined “territories” as Gaza, the West Bank, and East Jerusalem. But the lack of results here and across numerous global pockets of non-existent human rights raises questions as to whether this will really happen and when, as well as whether the era of evading retribution is really fading.

European citizens attend a demonstration in London regarding the situation in the Gaza Strip. "Free Palestine" by Alisdare Hickson is licensed under CC BY-SA 2.0

Bensouda’s legal argument for the treatment of Palestinian statehood and possible territorial jurisdiction rests on the fact that, in 2015, the ICC accepted Palestine into its Assembly of State Parties. The “Assembly” is the Court’s primary legislative body and management oversight limb. It is composed of representatives from states having either ratified or acceded to the Rome Statute. Since Palestine’s statehood remains officially in question, this body at least endows the Palestinian authority with the power to have some presence at the Court’s direction, although under the limited observer title of “intergovernmental organisations and other entities.” Bensouda’s full statement on the issue can be found here. She also called for an investigation into the legal controversy surrounding the parameters of jurisdiction in occupied territories due to the political nature of the topic. Collaboration between judicial bodies and state parties is necessary for justice. Unequal representation in justice is a crime itself, and one which breeds further injustice.

Myanmar and the Rohingya

Take for instance, the nation of Myanmar. Three years after a genocidal military campaign conducted in the western Burmese Rakhine State drove over 780,000 ethnic Rohingya out of the country and into refuge in Southeast Bangladesh, not a single Burmese military official was indicted. As far as the ICC’s actions, the office of the Prosecutor opened an investigation into the situation in November of 2019 with thus far minimal reporting. Despite the wealth of evidence pointing towards ethnic cleansing at the behest of individuals within the Burmese military’s western command, such as Major General Maung Maung Soe, Burmese military leaders  are not charged with any crimes while nearly a million refugees languish in the cramped refugee camps of Cox’s Bazar. These events are comparable to the atrocities in Africa which resulted in trial, yet instead of seeing the Burmese military in The Hague, we see “investigations” ongoing for months on end. Why?

Even if the ICC concluded its report and called for the arrest of Burmese military officials, it hardly has the mandate to enforce this ruling; one major roadblock stands in its way: the People’s Republic of China. China is Myanmar’s strongest ally, which is already a red flag given China’s contemptible human rights record, one which has spurred exiled victims to look to the ICC for support. Given that Myanmar is not party to the Rome Statute, it is immune to the prosecution of individuals (except in the case where crimes committed in Bangladesh apply) unless the UN Security Council (UNSC) resolves to recommend prosecution. But China is Myanmar’s stalwart defender at the UNSC. China thus far vetoed all Security Council resolutions condemning the belligerent persecution of the Rohingya minority, and the same can be expected in the event that the UNSC were ever to seek the arraignment of Myanmar’s officials, thereby rendering the Burmese military virtually untouchable by the ICC.

The Role of the US

Recently, the most outstanding case of defiance towards international law and justice stems from the United States. The Trump administration’s recalcitrance toward moves by the ICC is a display of the unreliability of American promises to uphold ideals for world peace. While the image of the US as the arbiter for global security is now tainted after decades of botched counter-insurgencies and insurrections with destruction left in their wake, it seems now that even in jurisprudence, America’s diplomatic institutions are failing. America’s trade status and economic fortitude grant it tremendous bargaining power on the global stage with any partnership it forms, and diplomacy is a chance for the US to have an admirable impact on foreign policy.

Due to several US administrations’ long standing refusal to prosecute war crimes from inside its own army, the ICC approved an investigation into potential war crimes committed by the US in Afghanistan during its military campaign, which, in the eyes of the eyes of the Trump Administration, is a huge mistake. Consistent reporting elucidates the unsettling war crimes committed by US military forces in Afghanistan, whose soldiers remain free and commended in the US as opposed to behind bars. Instead of responding to resounding concerns surrounding America’s ability to promote human rights, the US Treasury retaliated with Trump-approved sanctions against ICC personnel. In short, the US approach has not been to address alleged human rights abuses but rather to retaliate against the ones seeking to bring them to light. Like in other realms of foreign policy, the United States is acting unilaterally at the expense of global peace.

Comments made by US officials in the State and Defense departments, including by Secretary of State Mike Pompeo and Secretary of Defense Mark Esper, demonstrate a disregard for international law by the US. Pompeo lashed out at The Hague, calling the ICC a “kangaroo court,” and referred to its investigation as a “threat” to the American people. Pompeo even appeared to threaten ICC staff and their families should they elucidate and indict the US military for war crimes. The idea that American citizens are exempt from the purview of international justice is unacceptable. The structure of the ICC warrants many fair criticisms, but vehemently and exclusively opposing its moves to hold the United States accountable is not a legitimate one.

Finding impactful results from the ICC beyond Africa is scarcely feasible, and it is now clear why this is. African nations have no power in the Security Council, so even those not party to the Rome Statute have no immunity from ICC prosecution. There is no major interest in these countries either, so ICC involvement in the African continent goes largely unopposed by those other than the accused. Many other nations whose populations were ruthlessly victimized by their own or external governments go ignored because there is a web of political motives encasing them. War crimes in the Middle East go unprosecuted because the US and Russia vehemently oppose even the slightest nod towards their soldiers facing justice; East and Southeast Asian human rights are virtually non-existent and protected by China to further political gain. In any other situation as grave, the pattern is clear. If African nations were to see any level of care or consideration at the Security Council, it would likely and unfortunately be in a Chinese context. With Africa’s rapid economic development allowing it to become a breadbasket for China, it seems only a matter of time before Beijing comes to the defense of warlords and their wanton malfeasances.

Considerations and Solutions

In short, not only must the central institution of the Court itself be reworked, but the state parties around the globe must also accept responsibility in progressing the institution of justice. The world should see much greater unification and collaboration towards shared goals of equity and impartiality. Despite its occasionally slow proceedings and ineffective prosecutions, there is yet much room and possibility for growth in the ICC.

Africa has thus far served as an unfortunate model, although inefficient, for the action of the ICC, but may be a lesson to the Court for future policies. Ensuring justice in one continent is without question insufficient in a world with six more. The ICC will need to extend its reach, but it can only do so with the proper tools. Part of these tools will involve reform at the UNSC, but ICC state representation should also be reformed to require more input from the citizenry, so as to prevent against skewed perspectives from totalitarian regimes in such contexts as Venezuela and China.

The ICC should account for additional crimes, such as the opposition of justice. This should not be left so broad as to give the Court unlimited autonomy in its prosecutions, but rather be specified to actions such as retaliatory economic sanctions and travel bans against personnel. Since these would obviously never be tried in courts of national origin and the crimes technically take place in the Netherlands, this should fall within the Court’s jurisdiction. After all, acts of defiance during investigation are themselves criminal acts.

Additionally, state parties abandoning the court should not be so easy. State leaders, like President and Deputy President Uhuru Kenyatta and William Ruto of Kenya, respectively, signaled their intention in 2013 for Kenya to quit the ICC shortly after the former was indicted on charges of inciting political post-election violence in 2007. Other leaders are equally able to recuse themselves and their nations from The Hague’s jurisdiction as soon as the legal spotlight lands on them, which is in and of itself unjust. A possible deterrent may be to prohibit the indictment of leaders while in office, but many despotic leaders today are autocrats with indefinite rule and this ultimately gives criminals more time to retreat from the law and subsequently disappear into a vast network of shadows in the private sector.

The Schengen corridor, composed of 26 countries upon the agreement to abolish controls between mutual borders and replace these with a shared visa protocol, acts in harmony with international collaboration through much of Western Europe. One of Schengen’s pillars is to facilitate judicial proceedings for member states through cooperation in extradition. This concept should be added to and expanded upon, such that a new Schengen Area also includes the stipulations that individuals with any allegations of war crimes found present in any of the region’s countries are to be immediately apprehended and arraigned in The Hague. Mutual extradition laws should be agreed upon within the Schengen zone and beyond to facilitate speedy trial proceedings. Perhaps someday, more nations will join agreements reminiscent to this one to establish solidarity in opposing war criminals.

As we make amendments, there must be a safe balance between the threats of autocracy and the dangers of unlimited autonomy both by the Court and state parties. UN peacekeeping officers are known to have committed their own share of crimes, against which stipulations must be pushed to keep the last enforcers of justice in line as well— especially in a time where police brutality is all too familiar.

“To be effective, the court and its member countries will need to rise to the challenge,” says Human Rights Watch. International peacekeeping will ultimately go extinct unless states come together to protect global citizens. A court of last resort would ideally be unnecessary, but the world will always present its challenges. Through mutual accountability across international partners, this system may thrive.

Looking Ahead

To date, the “preliminary examination” of the situation in Palestine by the ICC is ongoing, but the looming encroachment upon the West Bank’s Jordan Valley is awakening many more to the crimes of illegal settlement and annexation. The failed concretization of Palestinian statehood is just as much of a roadblock to justice as it ever was. As for the Rohingya, ICC investigations are ongoing and even gathering the attention of proponents for human rights reform in China. The same can be said of many other humanitarian situations coming to light.

Contrastly, it is worth noting that the Court has some history of successful, comparatively speedy, and even impactful trials, especially in the case of The Prosecutor v. Dyilo. The arrest warrant for former Congolese President Thomas Lubanga Dyilo was issued in February 2006, and he was promptly extradited to The Hague in March of the same year. The speed with which this occurred is already commendable in comparison with the Al-Bashir case. The Bulk of Lubanga Dyilo’s crimes were the conscription of child military forces, involving children under the age of 15 to take part in violent internal skirmishes from September 2002 and August 2003 between local militias within the Democratic Republic of Congo. His conviction was finally settled in March of 2012, and he was sentenced to 14 years of imprisonment, deducted from which were the 6 years he spent in ICC custody within the Scheveningen Prison. 6 years for an international trial, all things considered, is an impressive time to gather evidence, hear witnesses, and settle a case involving multilateral war crimes in one of the largest countries on Earth. The International Criminal Court has its systemic flaws and demonstrably has not maintained this efficiency across all of its cases, but this is a clear indicator that the ICC is not undeserving of praise. Furthermore, cases like those against Lubanga Dyilo are the symbols of hope which onlookers should praise in considering how best to innovate the ICC.

The ICC boasts many positive qualities, like its witness protection, victim participation, and defendant rights. Throughout all of its trials, defendants of the ICC are detained in a humane and well-staffed detention center in the city’s international zone. The compound’s meal options, recreation, career opportunities, and care facilities are a testament to the Dutch’s progressive outlook on justice as a path of reform. While victims may dream of living in such a place, they are protected from witness intimidation as all defendants’ communications are pre-determined. Trials are comparatively speedy, fair, and inclusive. Trust funds allot finances to reparations for witnesses, and for the care of defendants during the trial processes. The International Criminal Court and its features thus far are a model for equality and humanity. Though imperfect, the ICC may very well be an instrumental organ to upholding world peace for all, after all.

Though long the road may be to reliable justice around the world, justice’s many conscientious proponents already know this. Dutch protesters often gather in front of the Court’s grounds to voice their dissatisfaction. The Court’s modern edifices glisten in the sunlight, symbolizing the fight to realize new global standards for humanity. If our world is one that cares about the safety, health, and prosperity of living beings all around, then it is only a matter of time before justice hears those voices—the voices of strength and solidarity. Each day, the sun may set over The Hague, but a grand horizon awaits those voices that carry with them the weight of the future.