December 20, 2019
Evert Elzinga/EPA
Lecturer in Law, Edinburgh Napier University
At the time, some lauded it as the cornerstone of the emerging system of international justice, but not all countries were keen on the idea of an international war crimes court.
Notably, the US signed and then “unsigned” the Rome Statute that brought the court into existence. It even passed legislation to protect any US military personnel from prosecution by the ICC. Other countries including Russia have been equally sceptical about the court’s work, and criticism has intensified over the past few years.
From its failure to secure custody of Sudanese dictator Omar al-Bashir to the withdrawal of states which fear becoming the subject of potential investigations, the ICC has struggled to assert its authority. It has also been perceived as biased against African states, because of the number of Africans tried. The US has continued to rail against potential prosecutions of US personnel by the court.
The document highlights a number of issues that the experts should examine. These include the selection of situations to investigate and how to deal with non-cooperative States. All of this speaks to the ICC becoming more focused. But if this is the case, the court may need to drop certain investigations and take a more targeted approach to some situations. It may also need to focus singularly on investigations which cannot be pursued at the domestic level. The test of a state being “unable or unwilling” to prosecute may need to serve as a threshold rather than an afterthought.
Amending the Rome Statute
The Working Group on Amendments to the Statute has had success in the past few years. Where the original drafters failed to agree on a definition of aggression which could be prosecuted by the ICC, the working group stepped in and secured approval for their definition in 2017.
It secured approval, again, this year of the crime of deliberate starvation during civil wars. Interestingly, the success of this proposal, put forward by the Swiss representatives, was contingent on two other proposals being postponed: the Mexican delegation’s efforts to include the use of nuclear weapons as a crime, and the inclusion of antipersonnel mines on the list of banned weapons by Belgium.
Arguably, it is much easier to secure agreement against forced starvation than against nuclear weapons, so the delegations agreed to support the Swiss proposal, which had been a feature of academic and policy debate for some time. But as some noted, the amendment must still be ratified by the rest of the member states for it to take effect. Amendments are not necessarily applicable to all states until they agree to be bound by them.
The ICC’s progress is not determined by the assembly, but the agreements made at the meeting identify a potential future direction for the court. The current focus is clearly to review the practice of the ICC, to see if anything can be done to augment its authority.
Crucially, the ICC needs to be properly funded and to be supported by domestic regimes, to which the court should defer whenever domestic prosecution is possible. It may be time to rethink the International Criminal Court as a guiding light for international criminal justice, rather than as the engine driving it forward.
Link :https://theconversation.com/what-next-for-the-troubled-international-criminal-court-129038
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