The International Criminal Court: The Failure of an Honor System?
Sarah Sessler, Volume 36 Associate Editor, Volume 37 Articles Editor
On July 17, 1998, one hundred and sixty states signed the Rome Statute, bringing about the creation of the International Criminal Court. The court was, and is, the first of its kind: treaty-based, autonomous, and intended to be permanent. The court was created to address complex and heinous international crimes, particularly genocide, crimes against humanity, war crimes, and crimes of aggression. Since the ICC entered into force in 2002, the number of ratifying parties to the treaty has dropped to one hundred and twenty-two. This likely has much to do with the inescapable reality that the ICC’S first decade or so of life has been tumultuous and steeped in adversity. Since its inception, the ICC has continually had its effectiveness called into question. The ICC was created solely with the above-mentioned crimes in mind, and as a result the Court’s jurisdiction is quite limited. Obedience to such limitations necessitates a set of concrete standards by which to evaluate potential cases. The ICC may only exercise jurisdiction in three scenarios: when the accused is a national of a state party (or of a state who has otherwise accepted such jurisdiction); when the alleged crime took place within the territory of a state party (or that of a state accepting the ICC’s jurisdiction); when the case has been referred to the ICC by the United Nations Security Council. Clearly this system hobbles the ICC’s ability to deal with any war crime or genocide that might occur; in keeping with general principles of international law, the ICC’s reach is limited to exercise over consenting states. But in the twenty-one cases over which the ICC has or is currently exercising its legitimate jurisdiction, a larger problem looms: the question of enforcement. The ICC is endowed with two primary enforcement mechanisms, neither of which is an actual on-the-ground police force of any kind. The first of these is the provision within Article 86 of the Rome Statute, which states that ratifying States shall, “in accordance with the provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.” Article 87 sets gives further details regarding these “requests for cooperation”, which essentially form the backbone of the ICC’s ability to enforce. If a state refuses to offer such cooperation, the ICC can involve its governing body, the Assembly of States Parties; however, that body has no more direct avenues to enforcement than does the ICC itself. The second, and even less concrete, mechanism is the careful cultivation of the ICC’s reputation worldwide. Since the ICC’s power extends only to the states that ratify the Rome Statute, it is in the body’s best interest to encourage a membership as widespread as possible. This is most likely to be accomplished by projecting an image of objectivity and fairness, which in turn adds to the geopolitical costs of refusal to join. However, a desire to increase the overall appeal of membership could result in the ICC sacrificing true objectivity for the sake of political popularity. Thirteen years into the ICC’s existence, neither of these enforcement mechanisms has brought about the desired results. The most instructive example of this failure is the case of Sudanese President Omar al-Bashir. On 29 March 2009, after extensive investigation and court proceedings, the ICC both indicted al-Bashir and issued a warrant for his arrest, in response to his commission of war crimes and crimes against humanity in Darfur. A little over a year later, in July of 2010, this indictment was compounded by another one, this time for genocide. These rulings made Bashir the first-ever sitting head of state to be indicted by the Court, and also the first person to continue serving in that office while subject to an active arrest warrant. The internal politics of the region have provided a distinct challenge to the ICC’s ability to enforce its decision: since 2009, Bashir has traveled to not one, but four different states who, though not ratifying parties to the Rome Statute, had been asked by the ICC to assist in his apprehension. There is not only a political, but also a plainly legal conflict regarding this case. The arrest warrant from the ICC, under the authority of Article 86 of the Rome Statute, constitutes a request for cooperation from its member states, which in this situation would require a state to surrender Bashir, if possible. However, at the same time, the African Union has passed a resolution prohibiting this exact form of cooperation from any of its member states. This puts those nations in the uncomfortable position of pitting their regional and continental allegiances and concerns against broad notions of justice and human rights. This resolution also exemplifies a larger theme regarding support for ICC from other intergovernmental entities: that support is deeply lacking. Not only has the African Union directly contradicted the requests of the ICC, but the Court has seen no meaningful support on this issue from the United Nations Security Council. This was despite the fact that it was that entity who referred the Darfur case to the ICC in the first place. It is likely due almost entirely to these difficulties that the ICC prosecutor, Fatou Bensouda, has opted to halt the investigations, citing the need for the short supply of resources to shift to other, more pressing cases. However, Bensouda has also made clear her displeasure with the UN for not doing more to see Bashir apprehended. It is quite possible that the halting of the Darfur investigation had at least as much to do with saving face and trying to preserve any remaining image of the ICC’s power as it did concerns over the allocation of resources. If the situation is as it seems, it is hard to dispute the claim that the ICC, as it stands, is relatively “toothless.”