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Happy Birthday International Criminal Court (Forbes.com) July 1, 2012

Posted by daviddavenport in Policy Articles & Papers.

July 1 marks the tenth anniversary of the founding of International Criminal Court in The Hague.   With an agenda driven by human rights organizations and middle power states, the ICC was launched with high hopes and lofty rhetoric but, after ten years and a billion dollars, only one trial has been completed, and the Court appears to be yet one more international institution that has over-promised and under-delivered.

Following the ad hoc tribunals for the genocide in Rwanda and the war crimes in the former Yugoslavia in the 1990’s, there was a sense that a permanent international criminal court should be established.  But a small group of NGOs, led by Amnesty International and Human Rights Watch, and a coalition of small and middle-power “like-minded states” (Canada, Australia, Germany and others) overreached the international consensus, insisting on a court with broader jurisdiction than ever before (over citizens of nonparty states) and a controversial independent prosecutor.  As a consequence, the U.S. and other major powers backed away from the Court and it became an institution with considerable power and independence on paper, but one that lacked sufficient support to be effective.

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Starting with a requirement that only 60 of the world’s 190-plus nations join in order to form the Court, what kind of support does it enjoy after 10 years?  On the surface, its base appears to have doubled, with the 121st nation, Guatemala, set to join on the Court’s birthday.  Yet the nearly two-thirds of the nation-states who have ratified the treaty to join the Court represent only one-third of the world’s population.  When you start down the list of the world’s largest countries, the first four, and six of the top ten, are not members of the Court.

In addition, very significant regions of the world—Asia, the Middle East and North Africa—are woefully underrepresented in the Court’s membership.  How do you create a significant international institution without the involvement of strategic powers such as China, India, Russia, Israel, Egypt, Pakistan, and the United States (a list that includes three of the five permanent members of the U.N. Council)?  You really can’t, which exposes the weakness of the Court’s membership philosophy to take a “coalition of the willing” rather than reaching compromises to attract a wider support base, which is the very essence of treaty-making.

One of the Court’s biggest membership problems is that the kind of countries most likely to be battlegrounds for the crimes within its jurisdiction—war crimes, genocide, crimes against humanity—simply do not sign on.  So, for example, attacks on civilians in Syria do not fall within the jurisdiction of the Court.  A study by Terrence L. Chapman of the University of Texas and Stephen Chaudoin of Princeton University concluded that nations with “the most to fear from ratifying the ICC—those with worse political and legal institutions and with more severe recent civil conflicts—tend to avoid ratifying.”  By contrast, the vast majority of nations that have joined are more stable democracies that have good judicial institutions, so that the ICC is not needed there.

The ICC Prosecutor, who also concludes his term this month, has had difficulty bringing cases that could really make a difference.  For example, he spent three years fussing over whether Palestine could refer Israel for alleged war crimes in Gaza, even though Israel is not a member of the Court and Palestine is not a nation-state.  This is precisely the kind of politicization and over-reaching that was feared from an independent prosecutor.  In Sudan, the prosecutor indicted President Omar al-Bashir, but he has been sufficiently protected by his allies and friends that the Court can’t even reach him; whereas some lesser figures could have been targeted, captured and prosecuted.  Probably the most notable war crimes conviction of recent years—of former president Charles Taylor in Liberia—was accomplished by an ad hoc tribunal and not by the ICC.  There are important questions about whether the ICC even makes situations worse, preventing alternative solutions such as a negotiated local settlement.

When I lecture on international criminal law, people wonder why it can’t do something about Somali pirates or drug lords.  With nearly 750 staff spending $100 million a year at the ICC, it’s a fair question.  Wouldn’t that money be better spent trying pirates or drug lords, or supporting more localized tribunals such as those that brought hundreds of people to trial in Rwanda, Sierra Leone, the former Yugoslavia and elsewhere?

On its tenth birthday, the International Criminal Court needs to undertake a careful self-examination.  The new prosecutor should spend less time on highly visible and politicized cases and bring some cases of war crimes and crimes against humanity she can actually try and win.  And the Assembly of States Parties, which is the policy body that oversees the Court, should look at compromises to its jurisdictional and prosecutorial powers on paper in order to win wider global membership and support.  Otherwise, the ICC goes down as one more proof that international law is all show and very little go.

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