The International Criminal Court

It seems almost dystopian to imagine that there is a court in the world where national and political lines are crossed for the sake of prosecuting international criminals. Yet, sitting in the Netherlands, there is an international court doing just that.

After the ratification of the Rome Statute in 2002, the International Criminal Court, now housed at The Hague in The Netherlands, has served as the court of last resort in the prosecution of crimes against humanity and genocide. Following on the heels of ad-hoc tribunals that were established under Chapter VII of the United Nations Charter, such as the International Criminal Tribunal for the Former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR), it is intended to prosecute alleged international criminals that states are unwilling or unable to prosecute themselves. However, unlike the ICTY and ICTR, it has yet to complete a case conclusively while simultaneously spending a vast amount amount of money from its member states.

The member states themselves prove to be a problem as the United States, China, and Russia have all refused to the treaty for fear that their own political authorities may be indicted. These factors have contributed to a body that symbolically holds international criminals accountable, but its construct has caused it to be largely ineffective. “There is the issue of not having the resources we need. My office, which is the engine of the court, has had to stay some cases and deprioritize some cases,” said Fatou Bensouda, chief prosecutor of the ICC, in an interview with  Foreign Affairs magazine. Given that it is already difficult to actually bring alleged criminals to court, it would be more effective to create several temporary ad hoc courts like the ICTY and ICTR under the United Nations Security Council instead of putting all international criminal cases under the chief prosecutor of the ICC, as in the past, the ad hoc courts have been much more successful than the current ICC. The differences between the permanent ICC and the ad hoc courts are what make the latter a better model than the former.

Between the ICC and national states, there is an agreement that any case already pending under national courts cannot be tried under the ICC. The complementary relationship between national courts and ICC was established to simultaneously strengthen international criminal prosecution and domestic prosecution of international crimes. However, this relationship also encourages states to shield powerful international criminals from the ICC for political reasons by maintaining an inconclusive trial within their domestic court system. In an effort to prevent this, the statute of the ICC does allow it to claim jurisdiction of a case if the standards stipulated under Article 17 of the Rome Statute are not met. But, even with the precautions in place,  the ICC is at risk of being frustrated by complicit states shielding powerful international criminals from facing trial. Part of the ad hoc courts’ justification is that the sovereignty of an individual country is not a permissible defense for the infringement of human rights. Thus, unlike the ICC,  it has primary jurisdiction over the cases it has chosen to try. It is able to indict and bring to court power political figures from states that have committed or been complicit in crimes against humanity without facing the limits that the ICC faces. The President of Sudan, Omar Al-Bashir,was indicted for war crimes and genocide, but has yet to be taken into custody as his own country is continuing to shield him and even other members of the ICC, including South Africa are abstaining from turning Al-Bashir in for political reasons. Thus, he is allowed to walk free even after being formerly accused for international crimes.

What is more, the recommendations of the ICC are to be followed only given that  the state in question does not already have existing and conflicting treaty obligations while the ad hoc courts’ decisions are to be followed regardless of contradicting existing treaties. Because one of the the primary intents of the ad hoc tribunals was to restore stability to the regions of conflict, its recommendations override the existing treaty obligations of the nation in question. Cases referred to the ICC can be, but are not usually in the aftermath of a particular atrocity the way that cases prosecuted in the ICTY and ICTR were. On the other hand, because the crimes against humanity were committed within Yugoslavia and Rwanda, the ad hoc tribunals did not want the execution of their rulings to be in the hands of those states. Thus, the more urgent nature of the construct of the ad hoc tribunals has inadvertently made it more effective in actually ensuring that is decisions lead to the desired consequences for the guilty. The system established by the ad hoc tribunals have proven to be much more effective in actually executing the rulings.

Despite its best intentions, the permanent ICC  has yet to surpass the ad hoc courts in terms of efficacy or legitimacy. It would not be pragmatic suggest that every international criminal be tried in a new court. It is also incontestable that the world needs an institution like the International Criminal Court to enforce International Criminal Law and to act as a deterrent for future crimes against humanity. However, the ICC needs to behave more like an ad hoc court to ensure that it is able to see its ruling fulfilled and to be more flexible during the trial process. It is currently unable to because its jurisdiction is far wider than a case-specific tribunal and thus allowing it the same flexibility would give it the power to infringe too much upon state sovereignty.

One solution would be to create individual and autonomous tribunals with the same constructs as the ICTY and ICTR, but under the supervision of the ICC and with the individual tribunals having primary jurisdiction rather than national governments. In such a model, the courts themselves would have more flexibility and receive more accountability after the ruling, and the international scope and stature of the ICC would be preserved while remaining within the confines of a particular crime or crisis.  The UN SC would determine which ones are created, just as they did in the two previous ad hoc tribunals. The ICC is currently not ratified by three of the five permanent members of the Security Council. To ensure that case-specific tribunals maybe be set up to prosecute international criminals from those countries, it should also be stipulated that the consensus of all members of the Security Council besides the member of which the accused is a citizen is enough to create a tribunal. An integration of the ICC and individual case-specific tribunals would ensure a symbolic body that targets international crime, and allows for more power without endangering national sovereignty, given that the ICC cannot have primary jurisdiction over a case until a tribunal has been deemed necessary but the security council, and even then, the ICC as an organization does not have the power of the ICTY or ICTR---- only the individual tribunal within the ICC does.