After the establishment of international criminal courts with the trials in Nuremberg and Tokyo, global justice was a determining issue in international politics in the post-war period. As a central and fascinating pillar in the efforts of the international judiciary, I will use the International Criminal Court (ICC or “Court of Justice”) as a contemporary indicator of the pursuit of international justice. Since its inception, the public and academic debate has fluctuated between enthusiastic optimism, celebrating the Court’s potential, and scathing criticism of the Court’s “utter failure” in its twenty years. A frequently repeated argument warns that the ICC is not only involved in international power politics, but is inevitably also compromised by it.
In relation to the scope of this claim, in the following illustration I will ask examples of how the activities of the Court of Justice continue to be hampered by two key issues: (a) the role of the United Nations Security Council (UNSC) and the Standing Five (P5) in shaping the selection of investigative situations by the Court of Justice, including the particular influence granted to the United States (USA); and (b) the practical abuse of the principle of “complementarity” of the Rome Statute of 1998, as observed in Sudan and Uganda. I will elaborate this argument by first presenting the Tribunal and the 1998 Rome Statute on which it is based, before discussing the extent to which the P5 regulates the Tribunal’s activities, with a focus on the United States. In conclusion, I question the claim that the ICC is just a playground for international great power politics by discussing the experience of the court in Sudan and Uganda.
Rather than simply being the result of such great power struggles, I note that the Court’s attempts to implement global justice suffer from its international situation Status Politics is very important. This can be seen in the dynamism that shapes the ICC’s engagement in Darfur and northern Uganda, given the way in which the African governments steer the decisions of the ICC. Whether the court is guilty of neo-colonial “African bias” needs to be reconsidered, given its usefulness for African state actors in maneuvering ongoing conflicts and enforcing their international standing. Overall, the answer to the successes and failures of the Court of Justice, and therefore its ultimate potential, is far more complex than a simple allusion to the self-interests of the great powers.
Introduction of the Court of Justice and the Rome Statute
In 1995 the General Assembly of the United Nations opened formal negotiations on the establishment of a permanent criminal court, from which the Rome Statute of 1998 emerged. The statute, which was signed for the first time by 120 states, was ratified in 2002. The jurisdiction of the Court covers the categories of crimes against humanity, war crimes, genocide and crimes of aggression (Article 5). It responded to long-term commitments for a global mechanism to end impunity for mass atrocities and to ensure justice in the name of humanity (Sikkink 2012, 33). To this end, the court would transcend the jurisdiction of nation states and their reliance on absolute sovereignty to protect state actors from prosecution. However, this transgression of sovereignty would only be feasible as a last resort – a supranational means for justice if all other legal proceedings fail (Clark 2018, 64).
To ensure this, the principles of distance, Complementarity and admissibility were incorporated into the Rome Statute and related discourses. On the one hand, the distance underlines the function of the Court of Justice as an impartial and formally independent body that remains unaffected by the history and politics of the situations in which it intervenes (Bosco 2014, 2; Clark 2018, 34). Complementarity, on the other hand, stipulates that the Court of Justice should only act as a complement to existing national systems rather than attempting to surpass or intervene in them. This includes a considerable emphasis on the interdependence between states parties in parallel with the independence provided by the principle of distance (Clark 2018, 25-26). Admissibility also contains the legal provisions resulting from the principle of complementarity, which determines when situations are admissible or inadmissible before the Court of Justice, and in particular emphasizes the non-interference of the ICC when there are “real state measures” (2018, 25; Article 17).
In practice, the valorisation of distance and the associated portrayal of the court as a superior form of justice has apparently far exceeded the court’s respect for complementarity – which in turn has led to a compromise of the principle of admissibility (see Clark 2018). . The extent to which the ICC, as the central cog in the pursuit of global justice, is endangered by international power politics can therefore be deduced from the commitment to these principles on the one hand and the inconsistency of their implementation on the other.
Global justice and Great Power politics:: The dish and the P.5
Since its inception in 2002, the Court has received significant criticism of its vulnerability to great power interests. In view of the lack of their own executive powers, the resulting dependence on state participation and the role of remittances and postponements of possible situations by the United Nations Security Council, many have integrated the ICC into the structures of a global hegemony policy. In particular, the fact that only two of the total of the situations examined since 2002 concern locations outside the African continent has led to an increase in literature that regards the Court as yet another piece of the contemporary machinery of neo-colonialism (Clark 2018, 51). Before addressing the portrayal of great powers as somehow omnipotent rulers of the court, the following section examines the relationship between the ICC and “states with global interests and influence” (Bosco 2014, 1) – with a notable focus on the USA.
So far the United Kingdom (UK), France, Germany, Japan and Brazil are the only signatories of “Weight” worldwide. In contrast, the USA, China, Russia, India, Israel and Saudi Arabia, among others, are not ratifying the court. Interestingly, this appears to be the case throughout the ICC case history – including investigations initiated and denied Not-Members with a focus on the USA, China and Russia, who had a large say in shaping the results of the ICC (see Mamdani 2008). This is due to the fact that Articles 13 (b), 15 and 16 of the Rome Statute give the United Nations Security Council the power to both remit and postpone court situations. Apart from referrals from contracting states or initiatives by public prosecutors, the Permanent Five (P5) of the United Nations Security Council thus together form the third and remaining way for the selection of ICC cases. Transfers took place twice, in Sudan (Darfur) in 2005 and then in Libya in 2011 (Jalloh 2017, 181). Since both situations were outside the jurisdiction of the ICC, with neither state signing the Statute, the Security Council remittances were hailed for the first time as evidence of a new international regime of accountability that had both sovereign authority and great power policies on its behalf who replaced victims of mass atrocities (Jalloh 2017) 181). Soon, however, the double standards of P5’s influence on the activities of the court emerged.
As a first example, the Council’s inability to relate to the situation in Syria shows the tug-of-war between the interests of the P5 (i.e. the great power) in determining the relationship between the United Nations Security Council and the ICC. Despite the deaths in Syria, which are well above the estimates in Darfur and Libya, no political agreement was reached that enabled a referral from the Council (Jalloh 2017, 196). Since Syria is not a signatory to the statute and the Syrian government itself is involved in the conflict, a referral from the United Nations Security Council would be the only way to seek international criminal justice for the atrocities of the civil war that has raged since 2011. Competing interests in maintaining Syrian President Bashar al-Assad, who was in power or had him removed, led Russia and China (in the President’s camp) to oppose France’s (UK-backed) request for a referral from the UN Security Council to veto the ICC prosecutor (ibid., P.195). The US was also reluctant to refer to the Syrian situation, possibly for fear of inadvertently shedding light on the Israeli occupation of the Golan Heights, which the US is supporting (Aoláin 2013).
As a second example, the US ensured that the resolution contained the so-called “bilateral immunity agreements” in order to be able to abstain instead of directly vetoing Resolution 1593 of the United Nations Security Council, in which the transfer from Darfur to the ICC in the Year 2005 was requested. (BIAs), whereby the signatory states have committed themselves Not Surrender US persons, including citizens and foreign contractors, who are employed in this state to the ICC ”(Jalloh 2017, 191). In addition, “another council nods to the concerns of the United States” (ibid.), Resolution 1593 avoided imposing a full legal obligation on all UN members to cooperate with the Court. By transferring responsibility for full cooperation to the Sudanese government and the other parties involved in the conflict, further control and support of other states or organizations in carrying out the work of the ICC in Sudan was further hampered.
There is a long list of cases that exemplify the US role in shaping, either disabling or facilitating, ICC activities and deserving particular attention. The most recent example is aptly illustrated by the pre-trial chamber’s rejection of the public prosecutor’s (OTP) request for an official investigation into war crimes and crimes against humanity in Afghanistan, a decision made by the chamber judges in April 2019 (ICC) -02 / 17; Saeed 2019). The allegations under investigation included “War crimes committed by members of [the US] Armed Forces on the Territory of Afghanistan ”and“ by members of the US secret service in secret detention centers in Afghanistan ”(OTP 2017). The prosecutor’s application was made in 2017. It didn’t take long for the Trump administration to make sure it wouldn’t cooperate in facilitating investigations into the Afghan situation (Evenson 2018). The government also looked for active strategies to prevent the inspection of U.S. or U.S. allied nationals, including visa bans on ICC staff who threatened prosecution and financial sanctions against ICC staff or a state party that might Investigations against US or Allied citizens involved as a potential reopening of lobbying bilateral immunity agreements (HRW 2019).
Given the US’s aggressive response to the prosecutor’s request to open an official investigation into Afghanistan, the Pre-Trial Chamber decided to reject it on the grounds that States parties would not cooperate and inevitably resources and political will would be lost. The initiation of investigations “in this phase”, according to the judges, would only disappoint the victims concerned and thus would not serve the “interests of justice” (ICC-02/17, 32). This decision will be translated [into the fact] that political considerations exceed legal requirements ”, which may indicate the extent to which“ the international judicial regime comfortably tolerates impunity in order to safeguard the interests of the hegemonic powers and their political priorities ”(Saeed 2019).
“African bias” or “weak” states pulling the strings?
The above section underscores the widespread assertion that the Court of Justice is only a power-political instrument with a specific function to uphold the colonial legacy of the global distribution of power, particularly in relation to questions of who is entitled to the sovereign right of non-interference and their sovereignty on behalf of “responsibility” and “justice” for “humanity” is made malleable (see: Çubukçu 2013). I agree that great powers play a far more influential role in shaping ICC activities, particularly in terms of the ability of the United Nations Security Council to refer security arrangements in line with the specific interests of the P5 as well as the ability of superpowers such as the US to protect the impunity of American and Allied nationals. However, sticking to this conclusion means a critical simplification or reduction of the scenario into which the ICC was introduced and has since been forced to navigate. Theories of an inherent “African bias” – such as Mamdani (2010, 66), who argue that “the ICC is turning into a western court to convict African perpetrators of mass crimes” – lose some clarity when contrasted with views, which instead shed light on the extent to which the court depends on government collaboration, rather than falling victim to a handful of global influencers. This predicament of the Court can be judged by its involvement in both Sudan and Uganda.
When Resolution 1593 was passed, referring the situation in Darfur to the ICC, it decided to intervene where several other conflict resolution efforts had already been made – notably the UNAMID and African Union (AU) hybrid peacekeeping mission in addition to significant involvement of the AU in facilitating the peace negotiations between the Sudanese government and the Janjaweed rebels. After the court issued an arrest warrant for Sudanese President Omar al-Bashir, the AU repeatedly called on the United Nations Security Council to apply Article 16 to “postpone the process initiated by the ICC” (Jalloh 2017, 202). Partly supported by China and Russia, the AU argued that Sudan needed a “comprehensive political solution” that would only be undermined by ICC interference (2017, 203).
The ICC prosecutor’s decision to build cases and prove the value of the court – underpinned by the sense of superiority that emerges from the “distance” discourses on which the OTP relied to intervene in Darfur – the decision of the United Nations Security Council not to force a postponement of the ICC The trial against Bashir tells of what Clark (2018, 302) calls the “complacency of complementarity”. Instead of paying attention to it de facto The United Nations Security Council, in collaboration with the ICC Public Prosecutor, paved the way for a “distant” form of justice that is more damaging than constructive to Darfur’s prospects for peace (Clark 2018, 17; Mamdani 2008; Krever 2014) 84) . It is important, however, that the AU did not simply agree to the decisions of the United Nations Security Council and the ICC. Instead, the Council’s refusal to postpone the Darfur situation led to a downright backlash in the operations and legitimacy of the ICC. To date, the AU, which was voted on in 2009 and thus covers all fifty-four AU member states, has worked together to prevent al-Bashir from conquering the ICC (Jalloh 2017, 182). Burundi, Gambia and South Africa formally withdrew from the statute in 2016 as a reaction to the insensitivity and problematization of the ICC interventions by the Court of Justice, and the “UNSC problem” is still a central topic on the AU agenda (Jalloh 2017 , 186).
The ICC’s presence in Uganda further underscores the failure of the principles of interDependency and admissibility in the judicial activities on site. In 2003 the Ugandan President Musevini referred the situation in northern Uganda with regard to the Lord’s Resistance Army (LRA) to the prosecutor himself. If the ICC had fully complied with the principle of complementarity of the statute, so Branch (2007, 186), the transfer of Museveni before the court would not have been legally permissible. This is because the Ugandan state was not “unable” to pursue certain LRA commanders other than not having captured them. and it was not “unwilling” to be prosecuted, except that it wanted the ICC to intervene on the delegation of peace talks and the amnesty law (Zweigstelle 2007, 187). As could be seen again in Darfur, in view of the fact that the Rome Statute had only just come into force, the OTP desperately pursued a first case only one year earlier in order to prove the potential of the institution (Clark 2018, 64). Consequently, Museveni could take advantage of this predicament to settle down [his own] Scores “(Krever 2014, 83). Most importantly, by referring the LRA to the ICC, Museveni ensured the immunity of his own state personnel and armed forces from international criminal prosecution, even though they were equally implicated in the violence against the civilian population of Acholiland (Branch 2007, 188).
The Ugandan context thus illustrates two issues. Uganda not only contradicts claims that the Court will act solely as a backstop for national institutions, but is also a key example of how the US is using its global political influence to obstruct or facilitate ICC activities at will. Contrasted with Afghanistan and Syria, where US nationals or allies can bring charges (causing the US to obstruct the ICC investigation), or Libya and Darfur, which are two heads of state who conflict with US regional interests (causing the US to facilitate the ICC investigation), Museveni have close political ties with the US government. Any action that could serve the interests of the Ugandan state in its military and political struggle against the rebel insurgents (classified as a terrorist organization by the US State Department) would therefore be supported by the USA (Krever 2014; Mamdani 2010). But Uganda also shows how[instrumentalization of] The court for political purposes ”(Krever 2014, 83) is not limited to the concerns of the great power, but also shows the ability of“ weaker ”states to use the court for political purposes. If the AU’s response to the ICC’s intervention in Darfur is resistance to the court’s view as neocolonial, that is the ICC’s shortcoming [in Uganda] was rather the failure to protect oneself from political manipulation by African states ”(Clark 2018, 99).
Sudan, Libya, Uganda, Syria and Afghanistan each illustrate how global justice efforts are shaped according to the concerns of the great power. Uganda and Sudan in particular underpin the tendency of the ICC to prioritize its own institutional development de facto Implementing justice for victims. All five examples show the extent of the special influence of the USA on the ICC measures. Conversely, Uganda also shows the reverse of this process by underpinning the ability of “weaker” states to actively use the court to win domestic political battles. Musevini’s reference to the situation in Uganda reveals the inevitable dependence of the Court of Justice on contracting states and thus the resulting malleability through different and parochial interests within the nation-state system. Sudan also highlights the influence that less powerful states exert when they jointly oppose the use of the court by major powers.
The ICC remains guilty of a “complacency of complementarity” in which the court announces the delivery of distant Justice through compliance with existing national processes, with often necessarily complex reactions to conflicts and violence being simplified to a unilateral judicial solution of individual criminal liability. The Darfur case makes this particularly clear: in order to establish its own credibility as a newly evolved institution, the ICC had to roll a head to signal the effectiveness of the court – all at the expense of already complicated domestic struggles for accountability and reconciliation.
Nonetheless, the ICC’s complacency complex continues to take place in the inevitable dependence of the court on government cooperation. Instead of an omnipotent exercise of hegemonic power, the International Criminal Court appears (new) as an institution that has been made flexible for a variety of state goals. As much as this confirms the extent to which the search for global justice is hampered by international power politics, my analysis denies the reductionist understanding of power that resides solely in the hegemony of the international order. Instead, power, while still being applied unevenly, is distributed among the large “small” states. What this means, so that the effectiveness of the Court of Justice and its prospects of ever being fully at the service of the real people under its (alleged) protection must be measured against its activity in the coming decade. An interesting case to keep this goal in mind will be the Court’s response to a 2020 request that the ICC launch an investigation into the complicity of European arms dealers and government officials in the war crimes in Yemen. What an opportunity for the Tribunal to show its true colors.
Aoláin, Ní. Fionnuala. 2013. “Why US Failure to Support ICC Remittance to Syria Doesn’t Protect Israel (or American Interests)”, Straight security, October 14th. Retrieved from: https://www.justsecurity.org/1905/failure-support-icc-referral-syria-protect-israel-or-american-interests-2/ [Accessed 2019-12-19]
Bosco, D. 2014. Rough justice:: The International Criminal dish in the a world of power politics. Oxford University Press.
Branch, A. 2007. “Uganda’s Civil War and the Policy of ICC Intervention.” ethics & International Affairs 21 (2): 179-198.
Clark, Phil. 2018. Away justice:: The A hit of the International Criminal dish on African politics. Cambridge: Cambridge University Press.
Çubukçu, Ayça. 2013. “The responsibility to protect: Libya and the problem of transnational solidarity.” diary of man right 12 (1): 40-58.
Evenson, Elizabeth. 2018. “USA aim at the International Criminal Court: Bolton tirade caused by threatened Afghanistan investigation”, man right Clock, September 11. Retrieved from: https://www.hrw.org/news/2018/09/11/us-takes-aim-international-criminal-court [Accessed 2019-12-19]
Human Rights Watch [HRW]. 2019. “USA threatens international criminal court: Visa bans for ICC employees”, man right Clock, March, 15. Retrieved from: https://www.hrw.org/news/2019/03/15/us-threatens-international-criminal-court [Accessed 2019-12-19]
Jalloh, C. C. 2017. The African union, the security advice, and the International Criminal dish. in the The International Criminal dish and Africa. Oxford Scholarship Online.
Mamdani, M. 2008. “Darfur, ICC and the new humanitarian order”, Pambazuka news, 17th of September. Retrieved from: https://www.pambazuka.org/governance/darfur-icc-and-new-humanitarian-order. [Accessed 2019-12-18]
Mamdani, Mahmood. 2010. “Responsibility to protect or right to punish?” diary of intervention and State building 4 (1): 53-67.
Public prosecutor [OTP]. 2017. “The Public Prosecutor of the International Criminal Court, Fatou Bensouda, seeks court authorization to open an investigation into the situation in the Islamic Republic of Afghanistan.” International Criminal dish, 20th November. Retrieved from: https://www.icc-cpi.int//Pages/item.aspx?name=171120-otp-stat-afgh [Accessed 2019-12-19]
Pre-Trial Chamber II. 2019. “Situation in the Islamic Republic of Afghanistan”, International Criminal dish, 12. April. Retrieved from: https://www.icc-cpi.int/CourtRecords/CR2019_02068.PDF [Accessed 2019-12-19]
Saeed, Huma. 2019. “A blow to justice: the ICC and Afghanistan”, security practice, 8th of May. Retrieved from: https://securitypraxis.eu/afghanistan-icc/ [Accessed 2019-12-19]
Sikkink, Kathryn. 2012. “The Age of Accountability: The Global Rise in Individual Criminal Accountability.” Im amnesty in the the Age of man right accountability :: Comparative and International Perspectives, edited by Francesca Lessa and A. Leigh Payne, 19-41. Cambridge University Press.
United Nations [UN] General Assembly. 1998. “Rome Statute of the International Criminal Court”, 17th July. Retrieved from: https://www.icc-cpi.int/NR/rdonlyres/ADD16852-AEE9-4757-ABE7-9CDC7CF02886/283503/RomeStatutEng1.pdf [Accessed 2019-12-18]
Waddell, N, and P Clark. 2008. Advertise conflict? justice, peace and the ICC in the Africa. London: Royal African Society.
Further reading on E-International Relations