The International Criminal Court and its “Crisis”

Yet again the ICC seems to be in a major crisis. For the first time, member states have realized their threats and announced that they will leave the Court. Indeed, Google provides within half a second more than 1,8 million hits when searching for “International Criminal Court + crisis.” What is going on in The Hague?

 At the end of November, 23 students from the SDU Master programme in International Security and Law [MM1] took together with this professor to the ICC to learn more about its current situation.

We discussed law and politics with legal advisers of the Embassies of Denmark, Israel and the United States; met with the European Union’s Focal Point on the ICC; visited a trial at the ICC; and sat down with staff from the ICC’s Victims Trust Fund, the Office of the Prosecutor, a defence counsel and Judge Marc Perrin de Brichambaut.

In the end, all students agreed: no textbook reading, no discussion in the classroom can yield the same insights in the functioning of international criminal justice, these practitioners shared with us. And it also became clear that while the ICC faces intense challenges, they may not all come from where Google would make you think they come from.

This year, the SDU study tour to The Hague coincided with the annual meeting of ICC member states in their Assembly of States Parties (ASP). Delegations meet every fall to negotiate the Court’s budget, adopt policy decisions guiding the work of the Court and discuss the state of the ICC’ during a general debate.

This year’s ASP was special, as it came only few weeks after the Gambia, Burundi and South Africa had announced their withdrawals from the ICC. Subsequently fears had arisen that these actions might signal the beginning of a mass exodus, severely undermining the Court, its reach and legitimacy. In the media this expectation attracted further hype when Russia in the middle of November announced its “withdrawal” from the ICC treaty.

 THE ALLEGED MEMBERSHIP CRISIS: “AFRICA IS LEAVING THE ICC”

We learnt that the actual situation of the Court is quite different. While it is clear that whenever a state decides to leave an international organization this needs to prompt questions about the organization’s record and practices – it also is evident that any such move requires a closer look at why the state is leaving and whether there are domestic motives leading the way.

In Burundi’s case, for example, it is striking that the government’s decision to leave the ICC followed the Prosecutor’s announcement to investigate grave human rights violations committed in Burundi.

Perhaps even more important, at this year’s ASP, a number of African governments came out in strong support of the ICC. Countries like Ghana, Senegal and the Democratic Republic of Congo made clear that they would not leave the ICC as they reconfirmed their commitment to the goal of fighting impunity through their membership.

Just last week then the winner of the presidential election in the Gambia announced that he would undo the withdrawal of his country from the ICC, as Gambia needed to be inside, not outside the ICC treaty. Finally, it should be recalled that Russia, of course, never has been a member of the ICC, but just had signed its founding treaty – a step which does not entail actual membership. The Russian announcement of ‘quitting’ the ICC thus rather resembles a well-timed PR stunt meant to further escalate the court’s ‘crisis.’

Notably this step came only few weeks after the ICC’s Office of the Prosecutor had referred to Russia in its newest report on investigating international crimes committed in Georgia.

All that being said, question marks remain as other African ICC members such as Uganda and Kenya have repeated their criticism of the Court at the ASP. In January, at the next summit of the African Union, we may learn more about the direction the relationship between the ICC and its African members is heading.

 LOOKING AHEAD: THE REAL CRISES STILL TO COME?

In 2017, it will be 15 years that the ICC took up its work. While the anniversary will generate friendly speeches and congratulations, there are several crises looming on the horizon. Different issues could be mentioned here – for example, the dilemma of a growing workload for the Court clashing with some ICC members insisting on a “zero-growth budget,” reflecting their domestic policies to cut back on spending across sectors.

Another example could be the entering into force of the crime of aggression as part of the Court’s jurisdiction. By now 32 member states have agreed to ratify the new definition of the crime, making it possible for the entire membership to take a vote in 2017 on activating the Court’s role in this regard. Difficult legal and policy questions surround this vote – including the fundamental matter of which states will be bound by the new crime of aggression once it is active.

The perhaps most immediate impact on the Court may come from the expected policy change as for how the US approaches the ICC. While never having moved closer to becoming an actual member, the US under the Obama administration turned into a strong supporter of the Court.

This showed in the UN Security Council, in discussions with other governments and in concrete measures such as US assistance with ICC arrest warrants. All this may change dramatically under the incoming Trump administration.

The ICC’s Office of the Prosecutor has recently announced that it soon may open an investigation into crimes allegedly committed in Afghanistan – including instances of alleged torture by US nationals. Based on what the US president-elect so far has said about the importance of US sovereignty, it does not take much fantasy to imagine that the relationship between the US and the Court may turn more than sour, if the Prosecution indeed initiates such investigation.

Similar issues could arise, if the Prosecution takes steps against Israeli officials for alleged wrongdoings in regard to the Gaza conflict in 2014. In fact, ICC proponents may be heading for a déjà vu experience, bringing back the dark memories from how aggressively the Bush administration attacked the Court in its early years.

Paired with the criticism by some African member states, persisting non cooperation when it comes to the execution of arrest warrants and growing budget constraints, the Court’s well-being may soon again depend on the political support by its core supporters. It remains to be seen whether those governments will be able and willing to live up to their role.