Don’t Give Up on the ICC

This April, judges at the International Criminal Court (ICC) rejected the prosecutor’s request to launch an investigation into alleged war crimes and crimes against humanity committed primarily in Afghanistan in 2003 and 2004 by the Taliban, Afghan government forces, and most controversially US soldiers and CIA officers. Although the crimes at issue were clearly within the court’s jurisdiction, the judges reasoned that the “the prospects for a successful investigation and prosecution [were] extremely limited.”

Coming a few months after US National Security Advisor John Bolton had threatened sanctions against the court and shortly after the U.S. government had revoked the prosecutor Fatou Bensouda’s visa for travel to the United States, the court’s decision was widely condemned as a naked concession to Washington’s intimidation and an invitation for other opponents -- whether in Beijing or Moscow -- to redouble their resistance. Afghan victims’ representatives expressed shock at what one condemned as a “deplorable” judgment that “will lead to immunity being granted to Taliban forces … accused of committing massacres.”

In another time, the Afghanistan decision might have been taken as a one-off mistake. But it was the latest in a string of disappointments that have shaken confidence in the institution. None of this means that we should give up on the ICC. But it does add urgency to a new effort getting underway to revitalize its operations.

When the ICC was created in 1998, then-United Nations Secretary-General Kofi Annan proclaimed it “a gift of hope to future generations.” But in its first two decades, the court has produced just three convictions for war crimes and crimes against humanity that have survived appellate review.

In recent years, the court has suffered a number of embarrassing setbacks. In 2014, the prosecutor was forced to withdraw charges against Kenyan President Uhuru Kenyatta after government stonewalling deprived her of the necessary evidence. Four years later, the conviction of former Congolese Vice President Jean-Pierre Bemba for crimes his troops had committed in the Central African Republic was overturned by five appellate judges whose fragmented reasoning—in four separate opinions, including three by a splintered three-member majority—confused many.

While dissenting and concurring opinions are not unusual and can be beneficial, the court’s failure to marshal consensus on such a range of fundamental questions—from the outcome of the case to the doctrine of command responsibility to the degree of variance between the charging document and any resulting conviction—offered little practical guidance for future prosecutions.

This January, in acquitting Laurent Gbagbo, the former president of the Ivory Coast, and his chief aide of all charges after they had each spent at least six years in detention, a divided trial chamber found the prosecution’s case so insufficient that it did not even need to hear from the defense. But the majority took six months to issue a written judgment, then took over a thousand pages to explain why the evidence did not add up, compounding the prosecution’s apparent flaws with judicial inefficiency.

In most circumstances, an acquittal is evidence of justice being done. But something is wrong when a court created to “put an end to impunity” for “the most serious crimes,” that deals with a handful of cases at a cost well in excess of $150 million per year, produces more acquittals and dismissals of charges than convictions.

Beyond its poor record at trial, ICC proceedings take an unduly long time. Before requesting authorization to launch an investigation, the prosecutor had engaged in a preliminary examination of alleged crimes in Afghanistan for more than a decade. The 2014 war in Gaza and the situation in the Israeli-occupied Palestinian territories have been the subject of an ICC inquiry without resolution for four years.

And the investigation into criminality during the 2008 conflict between Georgia and Russia has been underway since 2016 with little to show. These delays are a product of scarce investigative resources, a lack of state cooperation, and other factors. But with limited communication and outreach, victims and members of affected communities have been left wondering what, if anything, the court is doing.

Given all this, it is disconcerting that one-third of the court’s judges are suing for a pay raise plus pension increases and damages that could run into the millions. Why, when the court has been underperforming and the budget is strained, are its judges dedicating precious time and energy to increase their already generous compensation—which at around $200,000 tax-free exceeds that of judges on many national courts?