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Release peace: the magazine

Analysis & Background Stories on International Affairs

A Trend Reversal for the International Criminal Court

Article by: Dr. Max Lesch with edits by Release Peace

This article was published as part of a cooperation with the Peace Research Institute Frankfurt (PRIF), one of Europe’s leading peace & security think tanks, and draws from this paper originally published in German.

A Mild Summer Afternoon in Rome

On 17th July 1998, the Treaty on the International Criminal Court (ICC) was signed in Rome. To this day, the treaty is known as the Rome Statute, even though the court itself was established in The Hague. It came into force in 2002. The Rome Statute established a duty to prosecute genocides, war crimes, crimes against humanity and (since 2018) wars of aggression. Today, the ICC counts 123 member states. It therefore comprises of most of the 193 members of the United Nations. However, looking closer at who those members of the ICC are raises some serious questions. For instance, a challenge to the legitimacy of the court is posed by the fact that three of the five permanent members of the UN Security Council remain absent from the ICC. Those are Russia, the United States, and China. Despite these shortcomings, the Rome Statute was by many regarded as the pinnacle of the multilateral order on the eve of the 21st century. Those views are certainly not unsubstantiated given its universal, global claim and a depth of applicability unprecedented by other international institutions (Weller 2002: 693).

A World Where Nobody is Above the Law

Almost certainly the most far-reaching innovation of the Rome Statute was lifting the immunity of government officials. This even included heads of state and government. For the insiders amongst our readers: This is enshrined in Art 27 of the Rome Statute. Organisationally, the ICC follows two less innovative, yet fully logical and well-established principles: subsidiarity and complementarity. The former defines that an obligation to prosecute rests primarily with national courts, not the ICC. Only where national courts are unable or unwilling to prosecute the provisions of the Rome Stature should the case be handled by the ICC. This can occur in three ways:

1. A state can submit a case to the ICC (so-called Article 14 procedure)

2. The ICC’s chief prosecutor uses ‘proprio motu’ rights, which means the prosecutor becomes active on their own initiative

3. The UN Security Council refers a case to the ICC

Only under the third option – the UN Security Council referral – can the ICC be put in charge of prosecutions for crimes committed by persons from non-signatory states on the territory of signatory states.

Resistance and Exits

Resistance to the multilateral order comes on the one hand from challengers like Russia or China, but also from policymakers of all stripes in democratic societies, who place national decision-making above the constraints of international rules. Further criticism is fuelled by an impression -most notably in parts of the so-called Global South- that international organizations do not always apply rules without prejudice or bias. The ICC in particular has been on the receiving end of this criticism given that it is yet to convict any individual not a citizen of a Sub-Saharan African country. This observation led the African Union to an unprecedented step on 1 February 2017. It passed a resolution that encouraged member states to withdraw from the ICC. Some notable members, such as Africa’s biggest economic and most populous country, Nigeria, vehemently opposed this step.

Disruptions in Announcements, Continuity in Practice

The African Union’s (AU) call on all its member states to abandon the Rome Statute might be unprecedented (Bower 2019: 99). Three of the AU’s member states responded promptly, with South Africa, The Gambia, and Burundi indeed announcing their withdrawals. In a twist of fate, South Africa and The Gambia have since reversed their decisions, with Burundi being the only African state that has exited the ICC to date. It therefore seems that a mass withdrawal of African states from the ICC has not yet manifested itself. The same goes for another announcement by the AU: It intended to set up a regional court that would handle cases on the African continent. This resulted in the 2014 Malabo Protocol. Specifically, it aimed to create a criminal chamber under the umbrella of the African Court on Human and Peoples’ Rights. 15 countries have signed this protocol. However, none have ratified it. The scope of the Malabo criminal chamber was viewed critically, as it fell short of the Rome Statute and did not, for example, touch on the immunity of heads of state (Bower 2019, 97). The initiative must also be seen in the context of a regional ‘backlash’ against the Court in its previous form (Daly/Wiebusch 2018). Arguably, such counter-institutionalization attempts at regional levels shake the very foundation the ICC is based on: multilateralism. However, regional institutions can also be regarded as a complementary contribution to the implementation of the duty of criminal prosecution and possibly reduce the politicization of the ICC significantly. This might be the case especially where regional structures substitute, rather than replace, the ICC.

A Trend Reversal?

Though much attention in the global debate around the ICC centres on Africa member states it should be noted that both criticism and praise are received from many corners of the word. For example, next to Burundi the Philippines departed from the court in 2019, making it the only other country in the world to have done so. Meanwhile, the ongoing human rights violations committed by Russian troops in the war against Ukraine have brought renewed attention to the value and importance of the ICC. Public support for the court and applause for its investigations around war crimes committed in Ukraine were a turn of fate for the court. This notably includes the US, which is not even a signatory to the Rome Statutes itself. Different from the past, the reinvigorated support for the ICC includes increased funding, a departure from many years of lacklustre support in that area. Most notably, the court is currently investigating President Putin himself and issued an arrest warrant against him and Russia’s Commissioner for Children’s Rights, Maria Alekseyevna Lvova-Belova. According to the ICC, there are reasonable grounds to believe that both “bear individual criminal responsibility” (ICC) for the abduction and deportation of Ukrainian children into the Russian Federation. Though chances seem slim, if either is convicted in The Hague it would be the first ever successful ICC trial of non-Africa citizens.

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