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ICC 'unfortunately' still needed

It has been 20 years since U.N. diplomats stood and cheered when a treaty gained enough support to launch the world's first permanent war crimes tribunal.

Construction work on the International Criminal Court's permanent premises at The Hague, Netherlands in 2014
Construction work on the International Criminal Court's permanent premises at The Hague, Netherlands in 2014 (AN/Roman Boed)

UNITED NATIONS (AN) — Court officials, prosecutors and legal experts marked the 20th anniversary of the Rome Statute of the International Criminal Court on Friday at a high-level conference where almost 300 participants assessed the court's successes and failures.

The verdict: With war crimes reported around the globe, the international treaty is, alas, needed more than ever.

In April 2002, diplomats stood and cheered at the United Nations' headquarters in New York when the treaty picked up enough support to take effect and launch the world's first permanent war crimes tribunal into action.

The court was created to prosecute individuals for the most serious crimes under international law — crimes against humanity, genocide, war crimes and aggression.

But the conference's keynote speaker, Canadian lawyer Philippe Kirsch, who served as an ICC judge from 2003 to 2009 and was its first president, questioned the political climate today for international justice. “Whether the ICC could be created today is an open question," he said. "Without a doubt, the need certainly is unfortunately still there."

And the criminal allegations that have been made under the Rome Statute "are staggering," said Kirsch, "including in forms that we all believed belonged to the past" going back to the Holocaust. The first time an international criminal court was established was for the prosecution of Nazi leaders at the Nuremberg trials in 1945 and 1946.

It wasn't until more than half a century later that the Rome Statute finally entered into force on July 1, 2002 — immediately authorizing the ICC to begin operating — after gaining support from 10 more nations. That brought the number of ratifications to 66, well past the minimum of 60, and elicited a standing ovation from U.N. diplomats.

The case for 'ecocide'

In the two decades since The Hague, Netherlands-based ICC first gained the backing it needed to begin its work, this global court of "last resort" — stepping in when nations fail to prosecute war criminals — has encountered strong political headwinds.

In June 2020, for example, then-U.S. President Donald Trump signed an executive order allowing economic and travel sanctions to be imposed on any ICC officials who tried to investigate alleged U.S. war crimes in Afghanistan. That meant their financial assets would be frozen, and their immediate relatives also would be barred from entering the United States.

The ICC had ruled unanimously to allow its then-chief prosecutor, Fatou Bensouda, a Gambian lawyer and maritime law expert, to launch an inquiry into whether war crimes were committed in Afghanistan by the Taliban, Afghan military or American-led forces. Trump said the ICC's actions would infringe on U.S. sovereignty and national security.

After Trump's electoral defeat, his successor, U.S. President Joe Biden, decided to end the retaliatory economic sanctions and visa restrictions targeting ICC staff based on an "assessment that the measures adopted were inappropriate and ineffective," according to a U.S. State Department statement.

One area not envisioned in the original authorization of the court is crimes against the planet.

At the conference, Kenyan lawyer Phoebe Okawa, an international law professor at Queen Mary University of London, said the crime of "ecocide" — reckless, mass damage and destruction of important ecosystems — is the most "credible" and "consequential" candidate for expanding the ICC's remit to include a fifth Rome Statute crime, and will help to "invigorate accountability" for the environment.

She acknowledged the challenge of overcoming political pushback from those who prioritize "socioeconomic benefits." Her mention of it at the conference, however, "shows how seriously the ICC is taking this strategic legal initiative," according to Stop Ecocide International.

A focus on Africa, expanding to 17 nations

In its 20-year history, ICC judges have had 10 convictions and four aquittals among 31 cases, some with more than one suspect. Judges issued 37 arrest warrants and detained 21 people in the ICC's detention center to appear in court. Charges were dropped against three people who died. Twelve people remain at large. Doing so has come at a cost of more than €2.2 billion (US$2.3 billion).

“The ICC has come an incredibly long way in these twenty years,” ICC President Judge Piotr Hofmański told the conference in his opening remarks. “The ICC’s jurisprudence has broken new ground on matters such as the use of child soldiers, destruction of cultural heritage, and the participation of victims in the judicial proceeding."

International Criminal Court investigations
International Criminal Court

A court in time

The number of nations that have ratified the treaty doubled in two decades to 123, and the court now operates with a budget of €154.8 million (US$161.5 million) and more than 900 staff from about 100 countries, according to ICC figures.

Most of its work has focused on war crimes in Africa, where it has open investigations in 10 countries. That has drawn criticism in some quarters that it is too focused on one continent. But it also has open investigations in seven other countries: Afghanistan, Georgia, Myanmar, Palestine, Philippines, Ukraine and Venezuela.

The ICC has no police force or ability to enforce its orders without cooperation from governments. Though it is independent from the United Nations, the Rome Statute gives the 15-nation U.N. Security Council, the most powerful arm of the world body, the ability to refer cases.

Yet only two of the council's five permanent, veto-wielding members — Britain and France — have joined the ICC. The other permanent members — China, Russia and the United States — say their sovereignty is more important. That means if the investigation into Russian war crimes in Ukraine results in charges, Russia will almost certainly not agree to let the suspects be brought to The Hague for trial.

To those who know the court best, it is a good thing that the court was created when it was — because it might not have been possible today.

"It is equally clear that some national systems are indeed unwilling or unable to ensure their repression, when they are not part themselves in their commission," Kirsch said.

"Therefore, as we mark the 20th anniversary," he said, "there is good reason to celebrate the fact that the ICC was created when it was possible, and in a way that allowed bringing the great majority of states into the system.”

"Without fear or favor"

Amnesty International said the court’s legitimacy risks being eroded by "an increasingly selective approach to justice" that suggests double standards and improper influence from powerful nations. It points to decisions not to investigate allegations of war crimes by British forces in Iraq and to deprioritize another investigation of the Taliban, Afghan military and American-led forces in Afghanistan.

“For victims and survivors who had been denied justice, the ICC offered a glimmer of hope that perpetrators would be held to account,” said Agnès Callamard, Amnesty International’s secretary general. “But it has appeared to veer off course in recent years, with recent decisions by the ICC prosecutor raising concerns that the court may be heading towards a hierarchical system of international justice."

Callamard said the investigation in Ukraine since Russia invaded in late February is "urgent and vital," but the court has turned to "budgetary excuses for inaction" in places like Afghanistan and Nigeria. British lawyer Karim Khan, elected as the ICC's chief prosecutor last year, has complained of lacking adequate resources to investigate and bring charges as his docket expands.

“On this 20th anniversary, we still believe the ICC can play a unique role in the realization of the universal rights to remedy and reparations,” Callamard said. "To fulfill this role, the prosecutor must pursue all investigations without distinction: into all perpetrators of atrocities, without fear or favor, and no matter how great the political or economic power of certain actors.”

European Commission Vice President Josep Borrell, also the European Union’s foreign policy chief, defended the court and called on all nations to ratify the Rome Statute.

"The adoption of the Rome Statute has been a major step forward in the evolution of the international legal order and a breakthrough in the global fight against impunity," Borrell said.

"Its landmark decisions have contributed to the fight against impunity and the development of international criminal jurisprudence," he said, "for example on sexual and gender-based crimes, the recruitment and use of children in armed conflicts and the destruction of cultural property."