The ICC under Attack

Yasmina Gourchane
Membership and Outreach Associate at the Coalition for the ICC, New York

On 10 September 2018, US National Security Advisor, John Bolton, speaking at a meeting of the right-wing Federalist Society in Washington DC, publicly denounced the International Criminal Court (ICC).

He called it a creation of “self-styled global governance advocates,” and announced that “the United States will use any means necessary to protect our citizens and those of our allies from unjust prosecution by this illegitimate court.”

Two weeks later, in his address to the UN General Assembly, US President Donald Trump rearmed this position, while also taking a harsh stand against multilateralism and global institutions more generally. “We reject the ideology of globalism, and we embrace the doctrine of patriotism,” he said.

Twenty years after the signing of the Rome Statute, the guiding document of the ICC, the Court is facing not only criticisms over its performance and jurisprudence, but actual threats that could impede its officials from executing their mandates.

The Court is no stranger to criticism. Back in the early 2000s, John Bolton was part of President George W. Bush’s administration, serving in a different capacity, as a high level official in the Department of State and later as Ambassador to the United Nations. During his tenure, he negotiated dozens – reportedly more than 100 – Bilateral Immunity Agreements with states, both parties and non-parties to the Rome Statute.

Under these agreements, the signatory is obliged to surrender any US national wanted by the ICC back to the US government, not the Court. Bolton was also part of the administration when it effectively “unsigned” the Rome Statute, thereby underscoring its intent to never become party to the Court. Now back in government as National Security Advisor, Bolton has a stronger position from which he has begun to initiate further action against the ICC and those cooperating with it.

In November 2017, ICC Prosecutor Fatou Bensouda requested authorization to initiate an investigation into alleged crimes committed in Afghanistan, as well as related crimes allegedly committed on the territory of other states parties to the ICC.

The Prosecutor’s request asserts that there is a reasonable basis to believe that war crimes and crimes against humanity were committed by the Taliban, in addition to war crimes by members of the Afghan National Security Forces, US armed forces, and the Central Intelligence Agency (CIA).

Prior to the Pre-Trial Chamber announcing its decision not to authorize the investigation, the US continued to reiterate its unwillingness to cooperate with the ICC, with Secretary of State Mike Pompeo referring to the “rogue international court” as an imminent threat to American sovereignty in a speech to the German Marshall Fund in early December 2018.

On 15 March 2019, Secretary Pompeo increased measures against the ICC, announcing a new US policy of visa restrictions for individuals directly responsible for any ICC investigations of US or allied personnel. Just two weeks later, these threats came to fruition when Prosecutor Bensouda’s entry visa to the US was revoked. Now, she has very limited permission to travel to the US for official UN business, a restriction previously reserved for officials from Iran, Libya, and Palestine, who could potentially pose a threat to national security.

On 12 April 2019, the Pre-Trial Chamber determined the Afghanistan investigation would not serve the interests of justice, deciding against the authorization of an investigation into the situation, though the Prosecutor may still appeal the decision. NGO members of the Coalition for the ICC are stating that they believe the judges caved in to the pressure and threats by the Trump Administration.

Threats against the ICC extend beyond the current US administration. Burundi’s President, fearing investigations, submitted his government’s letter of withdrawal as a state party to the Rome Statute in late 2016. Similarly, in response to the opening of a preliminary investigation into crimes allegedly committed in the context of the Government’s “war on drugs,” the Philippines announced its intent to withdraw from the ICC, which took effect in March 2019.

This wave of anti-ICC sentiment is also felt at the United Nations, with states working to remove references to the Court and international justice more broadly from resolutions of the Security Council, General Assembly, and other committees. For example, in a November 2018 plenary session of the General Assembly on its cooperation with regional institutions, Sudan called for a vote to remove references to the ICC and the Rome Statute in a resolution on the Council of Europe.

Despite the persistence of these threats, the Court’s track record as an impartial international judicial body sustains its overall support. For example, states stepped up to block Sudan’s proposal, and voted to retain references to the ICC in the above-mentioned resolution. Also of importance, the ICC Pre-trial Chamber III ruled that the Court maintains jurisdiction over crimes allegedly committed during the time when a state was party to the Statute, irrespective to the current status as a state party, meaning investigations into the situations in Burundi and the Philippines can still be pursued by the Prosecutor.

States and civil society organizations are doing their part to thwart attacks on the ICC. At the 73^rd Session of the UNGA General Debate, mere days after Bolton’s initial remarks against the ICC, nearly two dozen states referred explicitly to the Court in their statements, and the Foreign Ministers of 35 ICC States Parties issued a joint statement, all underscoring the Court’s absolute necessity in the rules-based global order. Weeks later, at a General Assembly session on the ICC, states again recalled the importance of the Rome Statute system in maintaining international peace and security, as well as its indispensable role in granting justice to victims when domestic systems fail. In an April 2019 Security Council debate on sexual violence in conflict, at least a dozen states spoke explicitly in support of the ICC as an essential tool in the fight against impunity.

In this same period, six states, namely Argentina, Canada, Colombia, Chile, Paraguay and Peru, jointly referred the situation in Venezuela to the ICC. While she was already conducting a Preliminary Examination in the same situation, the referral by this group of States Parties served as a sort of vote of confidence in the work of the Prosecutor. Even at a time when two governments have pulled out of the treaty which established the first permanent international judicial body to try individuals for genocide, crimes against humanity, war crimes and the crime of aggression, the referral by this group of states signals that the Rome Statute and the Court continue to move in the right direction towards ending impunity for grave crimes.

In the face of open threats, the Court and its officials continue their work undeterred, impartially and independently, taking steps to fulfill their mandate. In January, a defendant in the Central African Republic case, Patrice-Edouard Ngaissona, made his initial appearance before the Pre-Trial Chamber. In April, judges rejected a challenge by Saif Gaddafi of Libya, confirming the admissibility of his case before the Court. In May, the ICC Appeals Chamber confirmed that Jordan did not properly comply with its obligations under the Rome Statute by failing to arrest Omar al-Bashir, the former President of Sudan.

Despite these examples, the Court is not without fault, facing criticism from not only its detractors, but its supporters, including states and civil society. In reaction to lengthy proceedings, criticisms of investigations, delayed judgements and questionable judicial decisions, civil society has begun to call for an independent review of the Court, a proposal which is gaining momentum among stakeholders in the Rome Statute system.

Drawing from similar assessments undertaken by the European Court of Human Rights (ECHR) and ad-hoc tribunals, an independent review of the ICC could identify, in consultation with key actors, crucial challenges which impede the proper functioning of the Court, concluding with concrete recommendations for the Court and its Assembly of States Parties to execute. As the Rome Statute system identifies its next generation of leadership in 2020-2021, the time is ripe for assessing the path ahead. A review process would draw on lessons learned from its early years, and provide a roadmap for building a more effective and legitimate institution.

This “never-again” court exists not to infringe on the sovereignty of nations, but to deliver justice to victims of the gravest crimes. When the Court is ineffective and inefficient, it is ultimately the victims who suffer the most. The ICC is unique in how it allows for victims to participate in proceedings and seek reparations at all stages in the process, serving as a constant reminder that the Court was established to bring justice to those who have suffered from unimaginable atrocities.

Ultimately, threats to the Rome Statute system serve as a reminder that the Court is worth defending. Heads of governments were once able to act with impunity, with no fear of repercussions when they committed grave international crimes. But the very existence of this institution with 122 states parties – nearly two-thirds of the UN membership – undermines such impunity.

The Court was conceived in a more idealistic time, and today faces a challenging road ahead. Yet now more than ever, the world needs institutions like the ICC to stand up for victims of the most heinous crimes, and ensure a future that includes a robust system of international justice.