International Criminal Court at 20 - not much to show for the $2bn spent to date

What a difference 10 years makes. In June 2012, I spoke at a conference celebrating the 10th anniversary of the creation of the International Criminal Court (ICC). The conference was held at the Foreign and Commonwealth Office in London.

In 2012 the mood around the ICC was still celebratory, inviting comparisons with Nuremberg and other “triumphs” of international justice. On the day of the conference Aung San Suu Kyi paid a visit to the same building. Colleagues excitedly reported sightings of one of the world’s most illustrious human rights defenders. Although the ICC’s fall from grace has not been as dramatic as that of Aung San Suu Kyi, the ICC inspires little of the hope and enthusiasm it did in those heady early days.

It did not take long for the ICC to disappoint. In its very first case, a case against the Congolese general Thomas Lubanga who was charged with the recruitment of child soldiers, the court’s investigations failed to meet fair trial standards.

The court’s legitimacy has further been questioned because of the lengthy duration of cases and the relatively small number of cases it has been able to bring to conclusion.

The most serious critiques of the ICC remains its preoccupation with African defendants and that it is a neo-colonial instrument. The five convictions obtained over the past 20 years all involved African defendants. Importantly, the five defendants were all rebels and not state officials. This means that the ICC has still not overcome the accusation of being a court that “targets” Africans.

Although the ICC has shown the ability to self-reflect and self-correct and, in an attempt to build a more geographically diverse docket, has increasingly opened investigations in non-African countries, the fact that it has secured only five convictions remains a serious concern.

The ICC has spent almost $2-billion (R33-billion) to date. The tremendous cost of the ICC means that it has a great responsibility to act impartially and with optimal efficiency. Although a court cannot be measured by its conviction rate alone, the kinds of crimes the accused at the ICC are charged with, affecting millions of victims worldwide, arguably calls for more convictions.

And the court’s failure to prosecute any of the world’s most powerful states or the friends of such states means that the neo-colonial critique will linger.

The ICC has not only spent an enormous amount, it also uses its budget as an excuse not to diversify its pool of accused. As Amnesty International’s secretary general Agnès Callamard wrote on 1 July: “The ICC’s budgetary excuses for inaction on Afghanistan, Nigeria and others can no longer be maintained.”

The creation of the ICC remains an achievement in international law. South Africa’s recent decision not to withdraw from the court should be supported. South Africa can be a force for the good at the ICC. It can use its diplomatic clout within Africa to increase state cooperation with the court. And consistent with its foreign policy objectives, it can push for greater attention on the situation in Palestine.

In mid-May, about two months after the Russian invasion of Ukraine, ICC chief prosecutor Karim Khan visited Ukraine with great fanfare and publicity. The aim of his visit was to “accelerate” the ICC’s investigation in Ukraine. He has, however, not made a similar visit to Gaza and has failed to show any urgency with regard to the ICC’s investigation into the situation in Palestine.

The idea that international justice depends on an unaccountable prosecutor who uses vague concepts such as the “interests of justice” and “gravity” to justify his choice of situations, means that the ICC will always be a highly political animal.

The late Judge James Crawford said that the world may not be ready for some of the more radical concepts that emerged from the Rome Statute which created the court, specifically the idea of an independent and impartial prosecutor.

For now, the greatest value of the ICC lies in its ripple effects. Many countries have incorporated the court’s definitions of crimes in its own legal systems. And, under the influence of the court, domestic legal systems worldwide have started to prosecute genocide, war crimes and crimes against humanity in cases described as “universal jurisdiction” cases.

It can be said that ICC is more than a court, it is a system and a form of consensus that the most serious international crimes cannot go unpunished.

Even so, the court needs to step up. Halfway into a year plagued with war, violence and regressive politics, states should not rely solely on the ICC but should strengthen their own prosecutorial capacity to achieve accountability for international crimes.

In the context of trying to get the ICC to extend its jurisdiction over the crime of ecocide, leading international lawyer Philippe Sands has described the ICC as “the only show in town”, but a poor one at that. Given the lacklustre performance of the court, the time is ripe for countries to create other shows alongside the ICC.

For the sake of international justice, the world cannot wait for the ICC to get its act together. DM