Cross-examining the Criminal Court

How the ICC Operates

The first calls for the establishment of an international criminal court were voiced as early as the 1870s, although international criminal law only came into being after the Second World War and the subsequent war crimes trials in Nuremberg and Tokyo. After 60 states had ratified the Rome Statute of 1998, the ICC was finally established on 1 July 2002, with its seat in The Hague. As of October 2017, it will have 123 member states. The Rome Statute consists of three main parts: the Court; the Assembly of States Parties as the reviewing and legislative body; and the Trust Fund for Victims, which finances reparations. The operating budget for 2017 is €141.6 million, funded by the member states. In addition to its headquarters, the ICC maintains a liaison office in New York and six field missions on the African continent. In total, the court has about 800 staff members from approximately 100 countries. Unlike the International Criminal Tribunal for the former Yugoslavia (ICTY) and Rwanda (ICTR) and the special tribunals for Sierra Leone, Cambodia, or Lebanon, the ICC derives its authority not from a treaty between the respective state and the UN or even from a UNSC resolution but from an independent multilateral agreement.

The ICC’s mission is to hold accountable individuals – not states, which come under the purview of the International Court of Justice (ICJ) – for four fundamental violations of international criminal law: 1) genocide; 2) crimes against humanity; 3) war crimes; and 4) the crime of aggression. The jurisdiction of the last one of these crimes was only defined in an additional protocol in 2010 and cannot be prosecuted before the end of 2017. Essentially, the court’s purpose is to focus on bringing to justice the main perpetrators responsible for such grave crimes. By acting against impunity, the ICC also aims to contribute to the prevention of such crimes. At the same time, it is important to ensure that any investigation is in the best interest of justice and of the victims. Injured parties not only have a right to reparations but may also give testimony as witnesses at all stages of the court proceedings.

The ICC operates on the principle of complementarity, which means that the main responsibility for prosecuting the four defined crimes lies primarily with the states themselves. The ICC was established to play a complementary role (“court of last resort”) and only deals with cases that national courts do not prosecute under the standards of international criminal law due to lack of interest, lack of resources, or lack of capacity.

Moreover, the ICC can only prosecute crimes carried out in one of the ICC member states or by an adult citizen of an ICC member state. This authority may expand to non-member states if the UNSC refers a matter to the ICC or if the state in question agrees to accept the court’s jurisdiction temporarily. It may only deal with crimes committed after the entry into force of the Rome Statute, or after the date of ratification for those countries that had not yet joined as of 1 July 2002. Assuming that these criteria are met, cases may be referred to the ICC chief prosecutor by authority of a member state, the UNSC, or the chief prosecutor’s office itself (proprio motu). In order to initiate proceedings through this last instance, the Office of the Prosecutor (OTP) requires the court’s consent. Before an investigation can be initiated, the OTP must verify in preliminary examinations whether the abovementioned criteria are met and whether the situation falls within the scope of the ICC’s jurisdiction.

Membership

With 123 members (as of October 2017), the ICC is one of the biggest international organizations. Many states from Western and Eastern Europe, Africa, and South America have joined it, while only a few Asian countries have ratified the Rome Statute. Global heavyweights like the US, Russia, and China do not intend to join the ICC. As permanent UNSC members, they can refer situations to the ICC but avoid prosecution for their own citizens. Thus, the ICC’s ability to act against impunity for the most serious crimes is restricted to a certain geographic area. The UNSC could adjust the balance somewhat by referring situations in non-member states, but it does so in all too few cases. The result is an inequitable situation that damages the effectiveness and independence of the ICC.

The ICC’s Africa Complex

A frequently voiced criticism that closely relates to the question of universality is the charge of selective justice to the disadvantage of African states. While the ICC currently engage in preliminary investigations in a number of states outside of Africa (see chart), nine out of ten situations that actually end up being dealt with in court relate to African states. Many of these rank high in the Fragile States Index and have little capacity to investigate serious crimes themselves. Therefore, African states have referred situations to the ICC on their own authority in five cases. The investigations of the situations in Kenya, Libya, Côte d’Ivoire, Georgia, and Darfur were, however, initiated with external assistance, i.e. by the UNSC or the ICC chief prosecutor. Among these were also the indictments of former Sudanese president Omar Al Bashir and Kenyan President Uhuru Kenyatta.

The African Union (AU) argued that the arrest warrants for these two individuals violated the immunity of high-ranking AU state officials, and called on its members not to cooperate with the ICC in either of these cases. Furthermore, the AU accused the ICC of trying to influence political power structures in Africa in a neo-colonial manner and of jeopardizing the Sudan peace process with the arrest of Al Bashir. Mainly Kenya instigated this aggressive rhetoric on the part of the AU, and the implied attempt to discredit the ICC, with other governments joining in for fear of possible ICC prosecution. This was likely also the key reason for Burundi’s decision to withdraw from the ICC, effective on 27 October 2017. In response to the violence in Burundi following President Pierre Nkurunziza’s bid for re-election to an (unconstitutional) third term in office, the ICC chief prosecutor initiated preliminary investigations in April 2016. Subsequently, the East African state announced its withdrawal in autumn of that year, and will be the first state to leave the ICC after 13 years of membership. Meanwhile, the withdrawals of South Africa and the Gambia, which they announced in autumn 2016, have been cancelled.

Other critics argue that while the Rome Statute provides for the prosecution of the most serious crimes, it ignores other offences that are of importance to the African continent (piracy, corruption, human trafficking, or illegal exploitation of resources). The call for “African solutions for African problems” has spurred the AU’s efforts since 2014 to give the yet to be established African Court of Justice and Human Rights (ACJHR) the authority to prosecute international crimes. If this additional protocol were actually to be ratified, the ACJHR would have jurisdiction over the same crimes as the ICC. Though regional efforts to combat impunity are to be welcomed in principle, especially with a view to the principle of complementarity, cooperation with the ICC should be adopted as part of the regional framework as a matter of urgency. It is important to note that the original motivation for these efforts to expand the ACJHR’s jurisdiction lies in disputes with the ICC, and that the ACJHR wants to guarantee acting heads of state and high-ranking officials immunity ex officio; this makes it all the more crucial to ensure that efforts at the global level are not undermined.