The International Criminal Court marked the 20th anniversary this week of the treaty that created it, with expectations growing about its effectiveness as it moves toward maturity.
The so-called Rome Statute establishing The Hague-based court was adopted in the Italian capital on July 17,1998. Today, 123 states have signed up to the treaty.
“The court has established itself as the permanent address for trials of leaders who order or instigate crimes against humanity, war crimes on a massive scale, or even genocide,” said Richard Dicker, director of Human Rights Watch’s international justice program. Dicker was present at the statute’s adoption.
At the time, with the end of the Cold War and multilateralism on the rise, some questioned the need for such a tribunal. But the new millennium brought with it a wave of conflicts and atrocities, some of which have been referred to the ICC.
The court has investigated 11 situations, from Georgia to the Central African Republic, and is conducting preliminary examinations of 10 more, including Afghanistan, Colombia and Ukraine.
But it has only had a few high-profile convictions and some cases have been dismissed and two defendants acquitted.
The first 20
“My grade would be not bad, not great,” Johns Hopkins International Law professor Ruth Wedgwood told VOA. “I think a lot of what’s been difficult for the court is realizing that politics, including the politics of very powerful countries, would necessarily intercede and therefore they’d have to settle for smaller victories.”
One such instance has been the effort to refer the conflict in Syria to the ICC. Russia and China blocked a move in the Security Council in 2014, in a bid to protect the Assad regime from prosecution.
“When Russia and China veto referral of the Syria situation to the ICC, it’s almost an invitation to commit crimes,” New York University Law Professor Jennifer Trahan noted.
The Security Council has the power to refer cases to the court. The only other way prosecutors can exercise jurisdiction is if the alleged crimes were committed by a country that is part of the Rome Statute or is in the territory of a country that is, or in a state that has accepted the jurisdiction of the court.
Faced with the blockage on Syria which is not a party to the ICC — U.N. member states sought to go around the council, and in December 2016 adopted a resolution in the General Assembly establishing a mechanism to assist in the investigation of serious crimes committed in Syria since 2011. It will take place outside the ICC, but it opened up a potential route to justice and accountability.
The court does not try defendants in absentia, so several cases have not progressed as alleged perpetrators avoid transfer to The Hague. There are currently 15 outstanding arrest warrants, including a 2009 one for President Omar Hassan Al-Bashir of Sudan, on charges of war crimes and genocide for atrocities committed in Darfur.
The wheels of justice also turn slowly.
“We know from experience that the road to justice is often long and takes patience, perseverance and prolonged support,” said the Netherlands Vice-Minister of Foreign Affairs Yoka Brandt, whose country hosts the court. “The path set out in Rome has not been an unwavering line toward success, but nor could we expect it to be.”
The ICC has weathered the discontent of some members, particularly in Africa where some leaders complain it disproportionately focuses on the continent. South Africa set in motion its withdrawal in 2016, but withdrew it five months later before it went into effect. The Gambia did the same, but after a change in government, it returned. The Philippines set its withdrawal in motion this year, while Burundi completed the process last October.
The court is lacking some powerful members, including the United States, which is not a state’s party to the treaty. President Bill Clinton initially signed the Rome Statute in 2000, but President George W. Bush withdrew the U.S.’s signature. Russia and China are not states parties either.
In addition, the ICC is plagued by financial shortfalls, inefficiency, trouble attracting and keeping the highest caliber lawyers and judges, and it needs more help carrying out arrest warrants.
“The court itself needs to improve its performance becoming more effective and more efficient — and the states that created it need to be more supportive diplomatically, politically and financially,” HRW’s Dicker said.
Successes and disappointments
Reflecting on the ICC’s accomplishments to-date, its impact may be more in how it has become a part of the international accountability architecture than on the outcome of individual cases.
“The idea of the court has been a productive and important one in a kind of metaphysical and ethical terms,” said Wedgwood, of Johns Hopkins. “It really doesn’t have in terms of actual output a particularly amazing frequency of conviction, but it certainly has made the law of armed conflict and humanitarian law — it has given it a way to have a stature that it otherwise might not be easy to maintain.”
The court has had only a handful of convictions, including its first in 2012 of the Congolese warlord Thomas Lubanga, who was convicted of war crimes for the recruitment of child soldiers and sentenced to 14 years in jail. Two years later, the court convicted Congolese militia leader Germain Katanga on four counts of war crimes for a 2003 massacre of villagers in eastern Congo. He was sentenced to 12 years in jail and ordered to pay $1 million in reparations.
But there have also been disappointments. Most recently, an appeals chamber of the ICC voted to overturn the conviction of former Congolese Vice President Jean-Pierre Bemba on charges of war crimes and crimes against humanity for atrocities committed in the Central African Republic in 2002-2003.
“The Bemba decision is really a disappointing result for the court,” NYU professor Trahan said. “Other tribunals occasionally have had disappointing verdicts and they have survived as institutions. I think we want to learn the lessons from this and help the court move on in the best way it can.”
The next 20
Looking ahead, as the court passes from its formative years into maturity, its supporters hope to see it become stronger and more efficient.
“I want to see an effective court and I want to see situations where the court has found opportunities to have an impact in conflict zones and in places around the world where crimes are happening,” said Stephen Rapp, a former U.S. Ambassador-at-Large for War Crimes Issues under President Barack Obama.
“The world — and that part of the world that believes in the rule of law — for that community the ICC is more important than ever,” HRW’s Dicker said. “Certainly more important and more relevant than it was 20 years ago when its treaty was finished in Rome at a point in time when people were legitimately asking would this court ever have any cases?”
“Ideally, 20 more states parties, regular proceedings before the ICC that are done efficiently and in a credible way and that advance international criminal justice,” said Lichtenstein’s U.N. Ambassador, Christian Wenaweser, who is a former President of the Assembly of States Parties of the court. “But I think more importantly, an understanding that the worst crimes under international law have to be investigated and prosecuted as part also of a country moving forward after a conflict.”