Executive Director, Crimes of War Project
"The Challenges of the ICC"
The International Criminal Court (ICC) was launched in 2002 to high hopes and some exaggerated fears, not least within the United States government. Seven years later, we are beginning to get a sense of how this new body is going to work in practice. Yet at the same time it is worth remembering that the ICC remains a very young court, and its structures and procedures are new and are still being explored by judges, prosecutors and defendants alike.
The case against Sudan's president, Omar al-Bashir, has predictably come to dominate international perceptions of the ICC. Issuing an arrest warrant against a serving head of state was bound to attract some attention, and on top of that, Darfur has been the dominant humanitarian cause in the years since the ICC was launched. Bashir's case provides a good snapshot of some aspects of the ICC's powers and limitations. On the one hand, not even a sitting president is immune from this court's jurisdiction. On the other hand, the court cannot compel countries that have not ratified its statute to arrest him — and there is even some uncertainty about whether countries are obliged to comply with the ICC's request that he be handed over. For this reason, by confining his travel to sympathetic countries, Bashir has been able to remain relatively unaffected by the arrest warrant.
Yet in many respects it is important to remember that the Darfur investigation is likely to be atypical of the work of the ICC. In this case, the United Nations Security Council voted to refer the situation to the ICC, a system that granted the court jurisdiction even though Sudan is not a party to the court. But in the other cases that the ICC has taken up so far — in the Democratic Republic of Congo, Uganda and the Central African Republic — the countries involved have ratified the ICC statute and indeed these countries asked the court to investigate the particular situations at issue.
This fact should help rebut any suggestion that the ICC has taken a neo-colonialist approach in focusing on Africa in its earliest cases — an impression that could do genuine damage to the ICC if it were to take hold. It is regrettable that the African Union voted at the beginning of July 2009 not to cooperate with the ICC's investigation of President Bashir, but at least it did not pass a resolution withdrawing support from the court more generally.
Indeed, a closer look at the history of these African cases suggests that the real problem for the ICC is not any kind of Western imposition of justice on Africa (in any case, five of the ICC's judges are African) but rather the difficult interplay of international justice and domestic politics. Consider the case of Uganda: The country's president initially called in the ICC to put pressure on the rebel group the Lord's Resistance Army, but then he appeared to want to exclude the court once peace talks were underway. It will not help the credibility of the ICC and international justice generally if states continue to approach the ICC in such an instrumental way, as if it can be summoned and then dismissed in light of changing political or military circumstances.
The Uganda case also illustrates another of the ICC's key challenges: deciding how much leeway to give to domestic judicial processes in the countries where crimes have occurred. According to the principle of "complementarity," the ICC can only take up cases if the country where the crimes took place is unable or unwilling to hold the perpetrators accountable. In this way, the ICC is intended to be a court of last resort that only steps in when there is no other way that justice will be done.
But "unable or unwilling" can be interpreted in a wide variety of ways. For instance, should the ICC require that domestic courts meet the same high standards as the ICC itself? Are there cases where it should defer to justice processes that fall short of a full criminal trial, such as the traditional mechanisms that are mooted by the war crimes agreement signed by the Ugandan government and the Lord's Resistance Army? The way the ICC deals with this question will go a long way in determining the court's place in the international system and the degree to which it represents a shift of power away from the nation state.
A final question for the ICC concerns its handling of the concept of aggression. Currently the ICC has jurisdiction over war crimes, crimes against humanity and genocide — all recognized without dispute as core crimes under international law. But the ICC statute also says that the court could have jurisdiction over the crime of aggression, if the states that are members of the ICC are able to agree on a definition for it and methods for exercising jurisdiction over it. The Assembly of States Parties is discussing the subject, which is likely to be one of the key issues for the first review conference, expected to take place in 2010.
It is not clear whether any definition will be agreed upon or voted into the statute (which is now open to revision, seven years after the ICC came into being). A special working group has drawn up a draft definition for the crime of aggression that references the United Nations Charter and the United Nations General Assembly resolution on the subject. But unresolved questions do exist, in particular regarding whether or not the United Nations Security Council should be required to provide clearance before the ICC can investigate someone for this crime. Extending the ICC's jurisdiction to include aggression, which has a greater political dimension than the crimes currently dealt with by the ICC, would create further challenges for this young but already significant institution.
Anthony Dworkin is the executive director of the Crimes of War Project, a non-governmental organization that promotes understanding of international humanitarian law and its application in contemporary armed conflict. He is also a senior policy fellow at the Europen Council on Foreign Relations, working on human rights, international justice and international humanitarian law. He co-edited the recent revised and updated edition of Crimes of War: What the Public Should Know. Anthony is a contributing editor of the British journal Prospect and has also written for the Times Literary Supplement, the Guardian, the International Herald Tribune and other publications. He is a member of the Terrorism/Counter-Terrorism Advisory Committee of Human Rights Watch.