Background
The concept of an international tribunal to prosecute accused perpetrators of violent crimes had been proposed countless times before the official establishment of the International Criminal Court (ICC) in 2002. It was first proposed in 1872 by Gustav Moonier, a founder of the Red Cross, in response to the violence of the Franco-Prussian War, and soon revisited in the aftermath of World War I by the drafters of the Treaty of Versailles. Over the next few decades, the Nuremberg and Tokyo tribunals following World War II and the conflicts in Bosnia-Herzegovina, Croatia, and Rwanda demonstrated to many the necessity of a court of international justice. In 1989, following the plea of the Prime Minister of Trinidad and Tobago, A.N.R. Robinson, the International Law Commission of the UN began to draft a statute for such a court. While the final draft of the statute was presented in 1994, it wasn’t until 1998 that world leaders convened and adopted the Rome Statute of the International Criminal Court. The statute was finalized with a vote of 120 to 7, with 21 states abstaining. The United States, China, Libya, Iraq, Israel, Qatar, and Yemen were the only seven states who voted in opposition to the Treaty. After 60 ratifications of the Statute by 2002, the International Criminal Court was officially established, their purpose to be a court that “investigates and, where warranted, tries individuals charged with the gravest crimes of concern to the international community: genocide, war crimes, crimes against humanity, and the crime of aggression.” Over 20 years later, we’re left with an important question: have they succeeded?
While a remarkable symbol of norms of international justice, the efficacy of the International Criminal Court has ultimately been hindered by accusations of bias, its relationship with the United Nations Security Council and veto powers, and its inability to account for transnational differences in politics, history, and culture.
African Bias?
Since the establishment of the Court, it has received allegations of crimes from over 139 countries via State Party and UN Security Council referrals. Despite this high number, the Office of the Prosecutor has opened cases in only 15: the Democratic Republic of the Congo, Uganda, Darfur (Sudan), Central African Republic, Kenya, Libya, Côte D’Ivoire, Mali, Georgia, Burundi, Palestine, Bangladesh/Myanmar, Afghanistan, the Philippines, and Venezuela. With a large majority of the aforementioned cases stemming from Africa, the Court has faced severe criticism for holding an African bias and is claimed to be a “colonial institution.” Within these cases, over 40 individuals have been indicted—all from African countries. As Mia Swart from the Brookings Doha Center writes, “at the center of this debate is the ICC’s nearly exclusive focus on African countries until very, very recently.” After severe criticisms of the ICC from the African Union piled on, in 2011 the Court appointed Fatou Bensouda, a Gambian native and former legal adviser at the International Criminal Tribunal for Rwanda, as the new chief prosecutor. Many credit her with broadening the narrow focus on African leaders over her nine year term. In 2021, she was succeeded by Karim Khan, a British lawyer and former Assistant Secretary-General of the United Nations.
Although the claims of African bias have largely been rebutted by the Court, many feel that the sentiment of bigotry towards African nations has been well established. Due to the voluntary nature of participation in ratifying the Rome Statute, this sense of bias has the potential to discourage both full participation and additional ratification from African states that are non-parties to the Rome Statute, straining the reputation of and thus weakening the efficacy of the Court.
Debilitating Veto Powers
In addition to the effects of the alleged African bias, the efficacy of the ICC is hampered by veto powers of the UN Security Council. While technically considered an independent legal court, the Security Council has certain special powers in the ICC’s process. For example, the Security Council may refer a situation to the ICC, essentially permitting the Security Council to have say over which cases shall be investigated. This is an extremely controversial power, particularly considering the Security Council includes three countries that are not endorsed signatories to the Rome Statute: the United States, Russia, and China. Many lament the fact that these countries have unjust influence, pointing to Russia and China’s veto power preventing the Council from referring the situation in Syria to the ICC as a devastating example.
The power of referral is coupled by the Security Council’s ability to suspend any investigation for a time period of one year—the power of deferral. Many argue this power is another way that certain world powers (i.e., the United States, China, and Russia) may abuse the system to defer any situation they wish for ulterior motives, such as prioritizing bilateral relationships with countries who lack the veto power.
“Transnational Justice”
The potential of the ICC is plagued with criticisms that international law and the concept of “transnational justice” cannot account for deeply rooted cultural and historical differences in countries that have experienced systematic and wide-spread human rights violations. Mia Swart argues it is “uncontroversial that international law has been shaped by colonialism and imperialism.” The fact that the ICC has only ever convicted nine people lends support to the argument that the intricacies of local government compounded by cultural and historical complexities ultimately inhibits the very concept of international justice. This argument is illustrated in the case of the Khmer Rouge in Cambodia.
From 1975 to 1979, Cambodians experienced a genocide under the Pol Pot regime that took the lives of more than a quarter of the population. Conditions at a detention center called S-21 were so atrocious that it is estimated only 7 of 20,000 prisoners survived. Despite the end of the genocide after Vietnamese invasion in 1979, Pol Pot died in 1998 and never was tried for his violations against humanity.
In 2006, at the request of the Royal Cambodian Government, the UN spearheaded the creation of the Extraordinary Chambers in the Courts of Cambodia (ECCC) to try and convict the surviving prominent perpetrators of the mass genocide throughout Cambodia. The trials, “touted as the largest reckoning since the Nuremberg trials” were held in Cambodia with a combination of both international and national Cambodian judges. From its inception, these trials were plagued with criticism. The new Cambodian government (the Cambodian People’s Party) accused the UN of using the trials as a means to oust the newly elected party, while the international community harshly criticized the reports of corruption within the process. Criticisms were fueled by the more than 200 million dollar price tag of the trials, with only one conviction delivered. Many say that the failures stem from the inability of the UN to fully understand the nuance of what really happened in Cambodia. An American human rights lawyer whose own parents were killed by the Khmer Rouge stated “This is no longer a legitimate court…It’s a sham. It does such a disservice to Cambodian victims and international justice in general.”
The massive criticisms of the UN and the ECCC have led many to believe that the potential of the ICC is hindered by its inability to account for cultural, historical, and political differences of countries that have experienced mass trauma. During the Cambodian genocide, the lines between murderer and victim became blurred, and the CPP government that remained in power throughout the trials was itself riddled with problems and inefficiencies. Critics state that the vague and general sweeping ideals of justice that the ICC holds renders it ineffective because it cannot account for the intricacy of cultural differences globally. This inability to create a cohesive ideal of international justice has been, and will continue to be, a source of weakness within the Court.
Conclusion
The International Criminal Court opened its doors in 2002 with a goal of achieving and maintaining international justice effectively and impartially. Achieving this goal, however, has proved to be quite formidable. Accusations of bias, a contentious relationship with the UN Security Council and veto powers therein, and a challenged concept of transnational justice inhibit the true potential power of the ICC to render justice for the world’s most atrocious crimes.
The advocacy movement for the United States to join the ICC has waxed and waned over the years. While former President Obama expressed optimistic attitudes towards the ICC, fueling pro-ICC organizations in their endeavor for the U.S. to join, momentum was stifled as Former President Trump took office and issued an executive order that authorized sanctions on ICC officials. Although President Biden has since revoked such sanctions, it is still unclear how much of a role the U.S. is willing to play in the ICC. As Stef Blok, the Minister of Foreign Affairs of the Netherlands writes: “If we truly believe that international justice is an attainable goal, we must practice what we preach and help the ICC to function in the way it was intended. To achieve this, all state parties, as well as the broader international community, must do their part.”
Author Biography: Sarah Burns is a Moderator of the International Law Society’s International Law and Policy Brief (ILPB) and a J.D. candidate at The George Washington University Law School. She has a bachelor’s degree in International Studies and Spanish from the University of Miami. Prior to attending law school, Sarah worked for the Global Partnership for Sustainable Development Data at the United Nations Foundation. Tweet