ICC: Between Power, Precept, and Impunity

“To this war of every man against every man, this also in consequent; that nothing can be unjust. The notions of right and wrong, justice and injustice have there no place. Where there is no common power, there is no law, where no law, no injustice. Force, and fraud, are in war the cardinal virtues.”

Thomas Hobbes, Leviathan

Alphen, Netherlands. 16 June. Much of the past week I have spent reading the copious amounts of literature kindly furnished me by Judge Marc Perrin de Brichambaud of the International Criminal Court (ICC) in The Hague. It was my distinct honour to be the guest of the Judge last week on a visit to the futuristic court building. It was fascinating, although I was somewhat thwarted in my desire to witness the ICC in action by the two trials in process both hearing closed evidence. My talents such as they are concern geopolitics and power politics, not law. However, driving away from the ICC I could not but help think that the ICC is in fact at the very cutting edge of geopolitics. Indeed, it is a noble effort to instil some level of principle into power, and in so doing prevent the inevitable impunity of Realpolitik.

The facts. The ICC has a clear political role by overtly linking the serving of justice to the pursuit of peace within the broad framework of the United Nations. The ICC tries individuals charged with the gravest crimes: genocide, war crimes, and crimes against humanity. In 2010 the founding Rome Statute was amended to include aggression as a crime. However, for these amendments to become international law they must be ratified by at least thirty states, which is as yet not the case. The Court applies a form of international criminal justice that is an amalgam of common law and the civil code.

On 17 July, 1998 one hundred and twenty states ratified the Rome Statute.  On 1 July, 2002 the Statute took effect when sixty states formally ratified the document. There are eighteen appointed judges, served by some eight hundred staff from over one hundred countries, with a 2016 budget of €139.5 million. In other words, by the standards of international institutions the ICC is a small organisation.

There are six official languages, but the two working languages are English and French. Thus far twenty-three cases have been before the court and twenty-nine arrest warrants have been issued against twenty-seven suspects. Eight people have been detained in the ICC detention centre, thirteen suspects remain at large, whilst three cases have been dropped due to the deaths the suspects. In addition to the futuristic court building in The Hague the ICC also has six field offices in Kinshasa and Bunia in the Democratic Republic of Congo, Kampala in Uganda, Bangui in the Central African Republic, Nairobi in Kenya, and Abidjan in the Ivory Coast.  

My judgement? In theory the ICC is a vital step on the road to a world in which impunity is accepted as unacceptable. However, look at the number of cases and from where most of them come, and then look at which states have not as yet ratified the Rome Statute, or not even signed it. The majority of defendants come from Sub-Saharan African states. On first appearance some might suggest the ICC functions as an instrument of latter-day imperialism. That is not the case. Quite simply, not a few leaders of African states have accepted the jurisdiction of the ICC simply to remove political opponents.   Still, too many of the defendants are black Africans.

Now, look at which states have not acceded to the Statute or refused to ratify it, of which there are some seventy-three. The list includes China, India, Russia, North Korea…and the United States. The US claims to have concerns about how the ICC might affect its deployed armed forces. However, American political objections run deeper; for Washington international institutions such as the ICC have always been for ‘lesser’ states, i.e. everyone else. China and Russia, and to a lesser extent India, seem to regard the ICC as counter to a world view that can at best be described as twenty-first century Machtpolitik. North Korea? No comment. Even Britain and France, two of the main sponsors of the ICC on the United Nations Security Council, and two of the architects of an institutional community concept of international relations (Brexit???) keep their distance.     

In a sense the ICC is one of those strategic bell-weathers, the fate of which indicates the health or otherwise of the global order. If the ICC prospers and is adopted and accepted over time by all powers then it would indeed suggest a world order embedded in functioning institutions and established on shared and universal principles of conduct and precept. If the ICC fails, and it could, the world will look much like it did to Thucydides in the fifth century BC, "We hope that you, instead of thinking to influence us by saying that you did not join the Lacedaemonians, although their colonists, or that you have done us no wrong, will aim at what is feasible, holding in view the real sentiments of us both; since you know as well as we do that right, as the world goes, is only in question between equals in power, while the strong do what they can and the weak suffer what they must."

My thanks again to Judge Perrin de Brichambaut and I very much hope I can return to the ICC to see and this time hear the Court in action.

Julian Lindley-French