By Guest Contributor Jessica Espinoza L.L.M. at Harvard Law School
Last year, the International Criminal Court (ICC) celebrated its 15th anniversary. When the Rome Statute was adopted in 1998, the international community considered it a historic milestone to establish the first permanent international criminal court, which unlike the many ad hoc tribunals established to deal with mass atrocities, would have a deterrent effect as a threat of legitimate punitive action already in place. However, throughout fifteen years in operation, many questions have been raised about the ICC’s credibility. First, its complementarity-based prosecutorial rules and policies have been mistaken for a political approach to its mandate. Second, the ICC has been blamed for having an African bias since, except for in one case, all of the situations under investigation involve African countries. Although factually and legally inaccurate, these claims have created a misconception on the legitimacy of the ICC. They have also caused –or perhaps helped craft the opportunity for– a group of countries to announce their intentions of withdrawal from the Rome Statute. Such was the case of Gambia, South Africa, and Burundi in 2016, only the last one successfully withdrawing from the treaty, and likely to be followed by others in the region.
A Matter of Rules and Policies
The essential feature of the ICC is its complementary character. The ICC acts only as a subsidiary body, closing the gap of impunity caused by the –ideally– exceptional inaction of the States. The whole Rome Statute system is designed over this premise.
The ICC may exercise its jurisdiction over the crime of genocide, crimes against humanity, and war crimes, based on the principles of territory or nationality, provided the case is admissible on grounds of complementarity, gravity, and the interests of justice. That is, a case is admissible when there are no States exercising their jurisdiction in relation to the same person for substantially the same conduct, or if true, when the national proceedings are influenced by a lack of political will or judicial capacity to investigate and prosecute genuinely. Also, the case has to meet a certain gravity threshold, and the potential ICC investigation should not be contrary to the interests of justice and the interests of the victims. The interests of justice test is a countervailing consideration that may give a reason not to proceed with an investigation even when the jurisdiction and admissibility requirements are satisfied. To date, there is extensive ICC jurisprudence for the interpretation of these statutory rules.
Since it is not the role of the Prosecutor, nor practically feasible for the ICC to investigate and prosecute every alleged crime or every allegedly responsible person for such crimes, the Office of the Prosecutor has designed policies to guide the exercise of the prosecutorial discretion and at the same time promote transparency in the selection of situations of conflict for the opening of an investigation, as well as the selection and prioritization of cases for investigation and prosecution. Among the factors that the ICC ponders are the scale, nature, manner of commission of the crimes, their impact on victims and communities, and the degree of responsibility or participation of the alleged perpetrators and the potential charges. Also, the Office of the Prosecutor issues an annual report on its preliminary examination activities as well as other situation-specific reports giving account of the phase that each situation is undergoing and the basis of the decision to either proceed or not with an investigation.
All these rules and policies seem fairly clear for the claim of a politics-oriented ICC to be sustained. However, there is one aspect that may create the impression that the ICC is tainted by international politics, and which should be clarified: the role of the United Nations Security Council (UNSC) in referring a situation to the Prosecutor.
There is three trigger mechanisms for the ICC to exercise its jurisdiction. The Prosecutor may open an investigation on a situation (i) proprio motu if previously authorized by a Pre-Trial Chamber, (ii) when referred by a State Party to the Rome Statute or (iii) by the UNSC, a political body. A referral by the UNSC must observe only the temporal and subject-matter competences of the ICC, irrespective of the territorial or nationality jurisdiction conditions. This mechanism allows the UNSC to refer situations of conflict taking place in States non-parties to the Rome Statute. The rationale for such an exception is that the UNSC would be acting under Chapter VII of the United Nations Charter, to maintain or restore international peace and security. It is true that three of the five permanent members of the UNSC are not States Parties to the Rome Statute, and would hardly ever be investigated by the ICC, but still can bring other non-parties under investigation. Yet, this is just another possibility within the vast measures available to the UNSC under Chapter VII, which actually turns out to be an important resort to increase the reach of the ICC action to potentially universal, as with the referrals of the Sudan and Libya situations –although unlikely for Syria, for instance. However, even when referred by the UNSC, a situation is subject to legal scrutiny, and the Prosecutor makes the corresponding assessment. The investigation is not automatically initiated.
On its part, the African bias argument is a rather superficial one. There are in fact nine situations under investigation that implicate African countries, and the tenth involves a Eurasian country, Georgia. From the nine African-related situations, two were referred to the ICC by the UNSC (Sudan and Libya); five were at the request of the situation countries themselves, and only two were initiated by the Prosecutor: Kenya and Côte d’Ivoire. Kenya unsuccessfully appealed on grounds of jurisdiction and admissibility the authorization granted by Pre-Trial Chamber II for the Prosecutor to open the investigation (see resolution). Regarding Côte d’Ivoire, the Prosecutor opened the investigation in 2011, authorized according to the State’s declaration accepting the ICC’s jurisdiction under article 12(3) of the Rome Statute, initially made by President Gbagbo and then reconfirmed by President Ouattara, before becoming a State Party to it in 2013, yet compelled to fully cooperate with the ICC.
Moreover, there are ten ongoing preliminary examinations awaiting a decision of the Prosecutor whether to open an investigation. These situations involve African countries such as Burundi –which notified its withdrawal from the Rome Statute in October 2016–, as well as countries from the Middle East, South Asia, South America, Eastern Europe, and even the United Kingdom with regard to the Iraq conflict, a country that many suggested would be safe from any ICC intervention.
Positive Complementarity: Really Improving International Criminal Justice
There is a fundamental part of the work of the ICC that is generally overlooked and really improving international criminal justice. During the Review Conference of the Rome Statute in 2010, it was noted that the notion of complementarity had created the idea of an “antagonistic relationship” between the ICC and the States, but that there was a positive aspect of this concept, too. The ICC promotes and engages in actions of positive complementarity to enable States to conduct genuine investigations and prosecutions as the Rome Statute system relies primarily upon national jurisdictions. These actions may take any form and be carried forward with the support of the ICC or by the States themselves with other stakeholders, such as international and non-governmental organizations (NGOs).
The ICC organizes training courses for national counsel, judges and other judicial personnel with a train the trainer component to maximize the spread. There is also an ICC Victims and Witnesses Unit training project for local authorities on witnesses handling and security arrangements. Other projects developed by international organizations and NGOs include capacity building for judges and prosecutors, political support building, advising on legislative drafting and implementation, transitional justice activities, and financial aid for physical infrastructure (see compilation).
Although there are few explicit implementation obligations in the Rome Statute, States Parties are nevertheless compelled to take all necessary actions to strengthen their prosecutorial and judicial institutions and adjust their laws and practice to ICC standards. Only when this is accomplished and every State is enabled to deal with the most serious crimes, international criminal justice will be happening on the required scale and have a deterrent effect.
The ICC has faced a series of criticisms that have damaged its credibility as an impartial, independent court. Frequently referring to its prosecutorial policies apparently conforming to international politics and an alleged bias against African countries. These claims are mainly due to a lack of knowledge of the ICC’s mandate and statutory capabilities, as well as political resistance. Besides its prosecutorial and judicial duties, the ICC promotes and works on positive complementarity actions aimed at strengthening national jurisdictions and encouraging national ownership of investigations and prosecutions. This is a major task for the ICC and one with a great potential to make a large scale difference.