Why does the International Criminal Court not have more support?

THIS MONTH President Joe Biden lifted sanctions on Fatou Bensouda, the outgoing chief prosecutor of the International Criminal Court (ICC), imposed by his predecessor, Donald Trump. Mr Biden also rescinded sanctions, which included asset freezes, on other court officials. The court is investigating whether American forces committed war crimes in Afghanistan. It was a modest victory for the ICC, but under Mr Biden America will continue to oppose the investigation and reject the court’s authority. A reminder of the court’s limitations soon followed on April 8th when Binyamin Netanyahu, Israel’s prime minister, reiterated his view that his country would not accept the court’s right to investigate alleged war crimes in the Palestinian territories. America and Israel are not alone in their refusal to sign up to the ICC. Other major absentees are China, India, Indonesia and Russia. Plainly countries with the worst human-rights records, such as Saudi Arabia, are bound to be hostile to the court. How does the court work and why do so many countries refuse to join it?

The ICC is still young. It was established in 2002; its first judges were sworn in the following year. But some kind of permanent international human-rights court had long been mooted. A commission set up at the Paris Peace Conference in 1919, in the aftermath of the first world war, recommended establishing a permanent international tribunal for war crimes. From the outset there was dissent. America favoured temporary courts run by the countries that might suffer depredations in any future wars; along with Japan it also argued that heads of state should have immunity. The commission’s recommendations were shelved. After the second world war the prospect was raised again. A military tribunal, established by the allied forces in the German city of Nuremberg, tried 199 defendants for their role in the Nazi regime and the Holocaust (another, in Tokyo, tried Japanese military and political leaders). But the cold war made a permanent court politically impossible. In the 1990s, the United Nations set up temporary tribunals to try those responsible for atrocities in Yugoslavia and Rwanda, and in 1998 the UN general assembly voted by 120-7 in favour of the Rome Statute, the framework for the ICC. It entered into force four years later. At last count, 123 countries had signed the statute, including all western European ones, all South American ones and two-thirds of African ones.

The ICC is intended to supplement national courts. It intervenes only as a last resort, when a country cannot or will not dispense justice on its own. It is not a UN body, though it works closely with the organisation. The court investigates and tries suspects for four crimes under international law: genocide, crimes against humanity, war crimes and, since 2018, waging wars of aggression (those not out of self-defence or not sanctioned by the UN Security Council). This year it has a budget of nearly €145m ($174m), which is funded by the court’s member states, a slight dip from 2020. Investigations begin with the chief prosecutor’s office: a case may be referred by the UN Security Council or a member country, or initiated by the prosecutor’s office itself. A pre-trial phase establishes whether enough evidence exists to build a case. The ICC’s 18 judges each serve a single nine-year term. No two may be from the same country.

The court and its detention centre are in The Hague, in the Netherlands. But it has no police force and so relies on the co-operation of member states to capture suspects and hand them over. This is by no means guaranteed, as was painfully evident when Sudan’s then president, Omar al-Bashir, swanned around Africa and elsewhere with impunity while under the court’s indictment facing allegations of genocide and crimes against humanity. In February last year Sudan’s new government suggested it might transfer him to the court’s custody, but he is still in a Sudanese prison.

In almost 20 years, the court has heard 30 cases and convicted nine people. There have been some achievements. In February judges convicted Dominic Ongwen, a member of the Lord’s Resistance Army, a rebel group that conscripted child soldiers and terrorised northern Uganda for two decades. He was sentenced on May 6th to 25 years in prison. But convictions have been sparse. All those convicted so far have been African, though “preliminary examinations” have been initiated to look into atrocities in Afghanistan, Colombia, Georgia, Iraq, Myanmar and Ukraine, as well as the Palestinian territories.

Some countries who signed up to the court have turned against it. In 2017 Burundi became the first country to withdraw, accusing the ICC of Western imperialism when it sought to investigate atrocities there. In 2018 the Philippines’ president, Rodrigo Duterte, said he would withdraw his country from the ICC after the prosecutor’s office opened an investigation into his bloody war on drugs. Many other countries have never accepted the court’s authority: some argue that it infringes their sovereign rights. And many particularly dislike the court’s insistence that past and present heads of state and government should not be immune from prosecution—the ICC’s most notable feature.

Editor’s note (May 6th 2021): This piece has been updated after Dominic Ongwen was sentenced.