Can the International Criminal Court be Effective Without Support From the Major Powers?

Author: Matthew Gordin 

“Power involves a perceptual relationship. Perceptions of capabilities and intent, rather than what they ‘really’ are determine how states will act.”

Introduction

The International Criminal Court (ICC or the court) was founded with the intent to try, prosecute, and hold individuals accountable for war crimes, genocides, and crimes against humanity. Created in 1989, the court was seen as a culmination of the post Cold War world order (Millis, 408). It signified a shift towards not only global governance, but the universal acknowledgment of human rights (Millis, 408). While the ICC in theory is a wonderful idea, there is much debate over whether the court has any real power. Because the ICC does not have its own independent military force, it must rely on the cooperation of its member states to catch and prosecute individuals which creates flaws not only in their ability, but their legitimacy. As the paper will discuss later on, the complex relationship between domestic sovereignty and international institutions, coupled with the weakly written statute upon which the court was created, provides large barriers to success. Ultimately this paper will argue that no, without support from the major powers, the ICC can not be effective due to the vaguely written Rome Statute and the ICC’s problem of enforcing cooperation. The paper will examine cases like Omar al-Bashir and Joseph Kony to further reinforce this argument.

Before discussing the shortcomings of the ICC, we must establish an understanding of the relationship between domestic sovereignty and international institutions, and have a working definition of the state. The ‘State’ for the purposes of the ICC is a nation or territory considered an organized political community under one government (Webster). In today’s highly globalized world, states still hold sovereignty in the highest of regard. Sovereignty, which is the ultimate authority in the decision making process (Britanica), is the foundational underlying concept of all state interactions on the international stage (Walker, 251). The question then becomes, why would any state voluntarily give up its own sovereignty and allow itself to be scrutinized by a body such as the ICC?

Similar to the Nuremberg Charter, in an attempt to combat this very issue, the Rome Statute includes a provision allowing the United Nations Security Council (UNSC) to refer a situation that threatens international peace and security to the ICC for investigation and prosecution (Dyani, 536). This provision acts as a “jurisdictional trigger mechanism” allowing the ICC to prosecute non-party states against their sovereign will (Dyani, 536). Despite the intention, the effectiveness of this provision is still weak and we begin to see one of the largest problems faced by the ICC: cooperation.

The problem becomes apparent when countries do not stand in solidarity with the court, and undermine their efforts by not cooperating, largely due to the poorly written Rome Statute on which the ICC was founded. Part 9 of the Statute outlines the legal framework for international cooperation in which “States shall cooperate fully with the court in its efforts to prosecute criminals” (Blattmann, 722). However, with no proper mechanism to enforce this section of the statute, the ICC stands to be undermined. Without state cooperation there can be no arrest, and with no arrest there can be no trial, leaving victims without justice and perpetrators encouraged to act again with no fear of repercussions (Blattmann, 723). The court's struggle with enforcement of cooperation is far from their fault. The vast differences between prosecuting at the national vs the international level are infinite. Both the complexity and grandeur of war crimes create unusual circumstances which are hard to navigate not only from a legal point of view, but a political one (Blattmann, 724).

For many countries the court represents a possibility for change. In underdeveloped countries, the ICC represents a channel to voice their interest on the international stage; in countries like Fiji and Chili, the ICC comes as an added security check against revolting anti-democratic forces; in many countries, participation in the ICC simply symbolizes their respect for the rule of law and their solidarity with the principles of the court (Walker, 255). 

Key Issues 

Many states however are skeptical of an international institution which can hold them accountable against their sovereign will. The major powers which have not ratified the statute into their domestic law are China, India, Russia and most notably the United States. Each state has their own rational for not ratifying however their largest concern is accountability. While in theory every state should cooperate with the ICC once they have ratified the Rome Statute, it is naive to think that states will follow through when there are no big players to hand out repercussions. By not having powers such as the China, India, and most importantly the US, the ICC’s credibility is damaged and states are less likely to cooperate with an international organization that can not call on major states to help reinforce their power. We have seen in the past how a hegemon’s absence in international institutions has led to their failure. After WW1 the League of Nations was created to ensure world peace, however its credibility was largely weakened by the absence of the US and it was not effective in preventing the second world war.  

The key to improvement lies in changing the current ICC cooperation model. The court must begin to act not only as a legal entity, but a political one, acting in accordance with current political realities and convincing states that cooperating with the court will not diminish their sovereignty, but enhance it (Banteka, 530). By doing so, the court can increase its chances of gaining support from the major powers which will not only give them more power to enforce cooperation, but also enhance their legitimacy. Article 42 of the Rome Statute currently states that “The Office of the Prosecutor (OTP) shall not act on instructions from any external source... or yield to political considerations” however, being an actor on the international stage, the ICC’s decisions are inherently political and to claim otherwise only reflects as a weakness of the court (Banteka, 531). The OTP has complete discretion in launching investigations, choosing which charges to bring, and to whom; often acting on behalf of the entire international community and taking into account the interests of civilians and states (Bensouda, 437). A court which is overly idealistic will never bring change, but a court which embraces modern political realities and uses them to navigate the international sphere to capitalize on their unique power can make all the difference in the world (Banteka, 532).

Cooperation is not the only issue faced by the court. The Rome Statute itself, is one of the largest barriers to the ICC’s success. In order to amend the Rome Statute, an amendment request would need to come from either a member state, a majority of judges, or the prosecutor (Kacker, 118). The Rome Statute indicates if the state does not comply, the ICC may refer the matter to the UNSC, but provides no further instruction on how the ICC may enforce state cooperation (Barnes, 1600). Further, the Rome Statute says the title of ‘Head of State’ does not automatically imply immunity from prosecution but does mention ‘diplomatic immunity’ which can be interpreted as such, and gives no clarification if this immunity applies to only nationals or all indicted individuals (Barnes, 1600). Lastly, the Statute indicates the possibility for immunity or excusal in the case of existing agreements with third parties, but gives no clarification on what kind of agreement justifies an excusal (Barnes, 1600). This is problematic because it is difficult to punish a state that has breached the Rome Statute, and to determine when an individual has valid immunity (Barnes, 1600).

Case Study: Sudan & Omar al-Bashir

One of the most glaring failures of the ICC, and a perfect case study to reinforce this paper’s argument, was the unsuccessful prosecution of Sudanese President Omar al-Bashir. Bashir came to power in 1993 after orchestrating a military coup and overthrowing the current Sudanese government (Valiani, 153). After years of mistreatment of the Darfur region, tension peaked when the Sudan Liberation Army and the Justice and Equality Movement coordinated an attack on the El Fasher airport as part of the rebel fight against Bashir’s government (Valiani, 153). In response, Bashir amalgamated the Sudan Armed Forces, the Janjaweed militia, and the Sudanese Police Forces to launch a counter insurgency mission (Valiani, 154). However, this ‘counter insurgency’ mission quickly escalated into war crimes, crimes against humanity, and even genocide (Valiani, 154). The government’s coordinated attacks on civilians including mass murder, rape, and other atrocities have resulted in over 300,000 civilian casualties and 3 million displaced people in the Darfur Region (Valiani, 150).

In response to the atrocities occurring in Darfur, the UN launched a Commission of Inquiry to investigate the situation (Buzzard, 908). The commission concluded that the Sudanese Government engaged in "serious violations of international human rights and humanitarian law amounting to crimes under international law,” and suggested the UNSC refer the matter to the ICC (Buzzard, 908). At first, the ICC went after other top Sudanese officials like Ahmad Harun, Sudan's minister for humanitarian affairs (Bohlen, 50). But after two years of investigations, the ICC made an aggressive stance when its prosecutor submitted an arrest warrant for Bashir himself, claiming he was responsible for five counts of crimes against humanity and two counts of war crimes (Bohlen, 54). This was the first time the ICC had ever issued a warrant for an active Head of State, so it caused quite a bit of controversy and tension around the world (Bohlen, 55).  

Because of the aforementioned failure of the Rome Statute to identify when immunity is valid and its failure to provide specific measures to enforce state cooperation, Bashir and the other top Sudanese officials still roam free. The African Union (AU) has completely disregarded the ICC’s indictment of Bashir claiming it is an interference with Sudanese sovereignty, and “an attack by the West against Africa” (Barnes, 1606). Given the AU’s disagreement with the ICC the AU issued a statement to all member states not to cooperate with the arrest of Sudanese Presdient Omar al-Bashir (Barnes, 1608). On July 12, 2010, unaffected by the AU statement, the ICC issued a second warrant for Bashir charging him with three counts of genocide (Barnes, 1608). The second indictment was issued right before his visit to Chad and Kenya, both member states to the ICC and the AU. However, following the second warrant, neither Chad or Kenya cooperated and Bashir was able to roam a free man (Barnes, 1611). The AU responded reiterating that they attempted to cooperate with the Rome Statute by requesting a deferral of proceedings, but because Chad and Kenya were neighbours to Sudan, they had to do everything in their power to promote peace and stabilize the region (Barnes, 1611). If the ICC had member states like China and the US - both principle trading partners to the AU and largely influential on the global stage, perhaps the AU would not have been so dismissive of the ICC’s request to cooperate in the capturing of Bashir. The African Union’s unwillingness to cooperate and put regional interests ahead of international ones is a perfect example of the ICC’s inability to be effective without the support from the major powers.

Case Study: Uganda & Joseph Kony

The next example highlighting the ineffectiveness of the ICC is Joseph Kony and the Lords Resistance Army. Joseph Kony is the leader of the Lord’s Resistance Army (LRA), a rebel force created in the late 1980’s to oppose Yoweri Museveni’s government, which had seized control of Uganda the year before (Apuuli, 394). While Kony’s stated mission is to overthrow Yoweri Museveni’s government, the LRA has been responsible for countless war crimes. The LRA has launched numerous raids across northern Uganda capturing children to be converted into soldiers, or sold into a lifetime of sexual slavery (Apuuli, 395). Kony’s criminal activities have essentially destabilized the country’s entire northern region (Feldman, 135). Despite the efforts of the Ugandan army for nearly two decades to defeat the rebels, Kony has still managed to kill upwards of 100,000 people, abduct between 38,000 and 66,000 children, and forced over 2 million people to settle in Internally Displaced Persons Camps (Siebert, 5).

The international response to the war crimes occurring in Uganda have been drawn out and complex. On October 13, 2005, the ICC issued arrest warrants for five senior leaders of the Lord’s Resistance Army for crimes against humanity and war crimes committed in Uganda since July, 2002 (Ssenyonjo, 361). Kony himself was charged with thirty-three counts of war crimes and crimes against humanity (Branch,180). Before the arrests could be made however, the Ugandan government entered into peace negotiations with the LRA (Ssenyonjo, 361). In an attempt to create peace, and in blatant disregard of the ICC’s arrest warrants, President Yoweri Museveni announced ‘total amnesty’ for the LRA combatants in July 2006, contingent on the LRA renouncing their acts of terrorism and creating long lasting peace (Ssenyonjo, 361). Following the amnesty offer, a cease-fire agreement between the Ugandan government and the LRA was reached and set to take effect August 29, 2006 (Ssenyonjo, 361). Aside from the fact Kony’s guarantee for peace is worth next to nothing, the issue with the ICC wanting to prosecute him is that they are currently the largest barrier to stabilizing the Ugandan region. Kony will never agree to a ceasefire with the Ugandan Government only to be prosecuted by the ICC (Feldman, 140). Either Uganda would have to provide him sanctuary, or an agreement asking the ICC to withdraw their case would have to be reached (Feldman, 140). 

The question is not whether Kony deserves to be tried, but rather, at what point does peace take priority over justice. If the Ugandan government has claimed it wants to grant the LRA amnesty, what implications does this have on the ICC’s ability to prosecute? According to the Rome Statute, the ICC only take cases in which national courts are ‘‘unable’’ or ‘‘unwilling’’ to undertake investigation and prosecution (Branch,186). This is an essential clause because it guarantees that state’s domestic legal systems will not be overrun and ensures the ICC serves only as a court of last resort (Branch, 186). Does granting amnesty fall under the category of ‘‘unable’’ or “unwilling”? Does granting amnesty fall under the acts of investigating and prosecuting? With no help from the major powers, no plausible military option for ending the war, and a diplomatic approach seeming impossible, perhaps the international community has no choice but to offer Kony amnesty (Feldman, 142). Here once again, we see how the absence of major powers really limits the ICC’s options for enforcement. If the court had member states like the US, perhaps there would be a viable military option for intervention or the court’s arrest warrant would carry more weight and take precedent over Uganda’s amnesty agreement.

Counter Case: Republic of Mahli & Ahmad Al Mahdi

While the ICC certainly has its downsides, the court has had some success capturing and trying international criminals without the support of major powers. The ICC’s most recent successful case occurred when they captured and tried Ahmad Al Mahdi. Entirely through their own merit, using the jurisdictions outlined to them in the Rome Statute they were able to issue an arrest warrant, and have him turned in for trial and conviction. Ahmad Al Mahdi was a member of the radical Islamic group Ansar Eddine, an armed jihadist group linked to al-Qaeda (Sterio, 64). Al Mahdi was one of the four commanders of Ansar Eddine during its ruthless occupation of Timbuktu in 2012 (Sterio, 64). On March 24, 2016, The ICC issued an arrest warrant for Al Mahdi on several war crime charges, specifically with the intent to attack religious and historic buildings and monuments (Sterio, 64). On September 18, 2015, the court issued an arrest warrant for Al Mahdi and eight days later he was surrendered by Nigerian authorities and transferred to the ICC’s detention facilities in The Hague (Ellis, 27). Al Mahdi was summoned before the ICC on September 30, 2015, charged with the war crime of destroying Mali’s cultural heritage, and sentenced to 9 years in prison (Ellis, 27).

While this was seen as a successful conviction by the court, there has been much controversy over weather Al Mahdi’s crimes are even considered war crimes. His crimes are certainly not equal to that of rape, abduction and mass murder, but the destruction of historical monuments and religious sites is simultaneously seen as an attempt to erase history. (Ellis, 24). Despite the successful conviction, the largest negative of this case is that in terms of war crimes, Al Mahdi’s are certainly on the less severe side of things. However, the ICC prosecutor described the loss as “to erase an element of collective identity....eradicate a civilization’s landmark..... and destroy the roots of an entire people, which irremediably affects its social attitudes, practices and structures” (Ellis, 29).

This case is significant because not only is Al Mahdi the first member of an Islamist armed group to appear before the ICC, but it is the first case in which an ICC defendant made an admission of guilt (Ellis, 25). Here we have a perfect case study for when the ICC was effective without support from any major powers. Through their investigation the court was able to determine the severity of his war crimes, issue an arrest warrant, and in compliance with Article  86, Nigerian authorities arrested and handed over Al Mahdi to the court to be tried and convicted.

Conclusion

This essay addressed the question of whether or not the International Criminal Court can be effective without support from the major powers? It argued that ultimately no, without support from the major powers, the ICC can not be effective as seen with the cases studies of Omar al-Bashir and Joseph Kony. It proved this by showing how the poorly written Rome Statute, and the lack of power possessed by the ICC due to the absence of major state players presents major barrier to success for the ICC. While currently the ICC does not have the proper structure for an organization of such magnitude and importance, there is possibility for change. In order to make the ICC effective, there needs to be a complete reconceptualization of state interactions with the court from being “sovereignty-costly” to “sovereignty-enhancing” (Bocchese, 340). The ICC must learn to walk the fine line between individual accountability and state sovereignty (Buzzard, 917). As stated earlier, the court must abandon its overly idealistic notion to “not act on instructions from any external source... or yield to political considerations.” If this court is meant to deal with the most heinous criminals charged with offences even their domestic governments cannot prosecute, then it must act not only as a legal entity but a political one.

What this paper essentially comes down to is hard power and soft power. A court is only useful if the sentences it gives out are enforced. While the ICC may have all the soft power in the world, the court lacks real hard power, and with the absence of major players the ICC will never be able to fully fill its role on the international stage. As seen with the case studies provided, if concrete amendments are made to the Rome Statute regarding 1) exact courses of action when states do not cooperate, 2) exact terms of when an individual has valid immunity, and 3) specific limits to the courts jurisdiction, the ICC may begin to operate more efficiently to directly target international criminals. By making specific adjustments to the Rome Statute that will minimize its possibility for interpretation, the court will seem less daunting to major powers and the ICC may begin to convince major states to ratify. With these amendments I believe the ICC has the potential to be a voice of justice in the convoluted chaotic world of politics and act on behalf of the entire international community when no one else can.

 

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