ISS: The ICC is as strong as the support it receives from states

The creation of the International Criminal Court (ICC) 20 years ago marked the beginning of the end of An era of impunity for genocide, war crimes and crimes against humanity. The ICC was established – five decades after the end of the Second World War – by the Treaty of Rome and adopted by 120 states

Peter Lewis, Clerk of the ICC at a recent meeting with non-governmental organizations at the seat of the Court. The Hague stated that the Rome Statute had reached maturity. The court is here to stay.

On the occasion of this anniversary, which also marks World Justice Day, analysts and commentators examine the successes and shortcomings of the Court. Central to this discussion should be the (in) actions of treaty structures – the organs of the court, the Assembly of States Parties (ASP) to the Rome Statute and the United Nations Security Council, which has the ability to refer and defer situations to the ICC

When the Security Council submits situations to the ICC, all states should cooperate
The commitment of 123 signatories to the Rome Statute to remain an integral part of the system is undoubtedly a significant indicator of its success. This is especially true because the greatest challenges that the ICC has faced since its inception are the threat of withdrawal from African member states and their non-cooperation.

The threat of withdrawal has since eased, a number of African governments have expressed support for remaining in the Rome Statute system. And the African states that led the withdrawal campaign have changed, like The Gambia; went surprisingly quiet about the issue, as in Kenya and Namibia; or indicated a possible rethink, as recently reported from South Africa. Burundi is the only State that left the Court.

Of course, for the Rome Statute system to work, the ICC needs not only registered members but active co-operation. The most serious threat to the court remains the non-cooperation of States. Cooperation is an essential part of the Rome Statute's wheel of justice, and without it, the ICC can not fulfill its mandate.

The two arrest warrants against Sudanese President Omar al-Bashir, in 2009 and 2010, Appear for Kenyan President Uhuru Kenyatta in 2014 triggered a reaction of the African Union (AU) against the ICC. The more African states accused the tribunal of partiality, the more it fanned anti-CCI sentiment among the leaders of the continent.

Since 2009, the AU has begun to call on its member states not to cooperate with the court regarding the mandates of Al-Bashir. what the AU called a withdrawal strategy in 2017. Surprisingly, the AU's decision on the issue was aimed rather at ensuring a constructive engagement with the Rome Statute system than withdrawal.

ASP and the Security Council Concerns of African States – eg prejudices, selection of cases, immunity of heads of state and not having public with the highest officials of the Council security – have maintained tensions between the AU and the ICC.

Not all the problems of cooperation are caused by the States Parties. Neither Sudan nor Libya are States Parties to the Rome Statute, but through referrals from the Security Council, the situations in Darfur and Libya are before the courts. Both presented obstacles that it is difficult for the ICC to overcome without the intervention of the Security Council.

When the Security Council submits situations to the court, it must impose obligations of cooperation on all States and not only on the members of the Statute. A forthcoming report from the Institute for Security Studies states that this is essential for improving cooperation with the ICC. The Security Council should also use its powers under the United Nations Charter to respond to findings of non-cooperation. This should be systematic in cases arising from situations referred to the court by the Security Council.

Cases brought before the court also provoked strong criticism of its ability to deliver justice to victims. The ICC Appeals Chamber has recently acquitted the Democratic Republic of Congo (DRC) Jean-Pierre Bemba of crimes allegedly committed in the Central African Republic.

The decision has had complex political ramifications in the DRC, where Bemba is now challenging the presidential election. elections in December of this year. In addition, because of the legal framework for court-ordered reparations, CAR victims are left without recourse to justice.

A similar failure to bring justice to the victims in the Germain Katanga case took place in June 2014. The prosecution dropped its appeal against a previous judgment. Kenyan cases have been abandoned or abandoned, leaving victims without justice.

Despite the problems of the last 20 years, the ICC undoubtedly has potential and shows how the international community can do justice to millions of victims of atrocities around the world. Realize this is not just the court case. This will require a real commitment on the part of the signatory states of the Rome Statute, the Security Council and civil society.

Written by Allan Ngari, Principal Investigator, ISS Pretoria

Reissued with permission from ISS Africa. The original article can be found here.