The Politics of International Criminal Law

“Today, we live in a world where a man has more chances to be judged if he kills only one person than if he kills 100,000.“ – Kofi Annan, 1998

The year 1998 was the year in which the Rome Statute, the foundational treaty of the International Criminal Court (ICC) was signed. The ICC has now been in operation for a decade, during which it has accumulated 121 state parties, adopted 15 cases in seven countries and produced one single verdict. On March 14, 2012, it convicted Thomas Lubanga Dyilo, a former Congolese warlord, of war crimes for recruiting child soldiers.

Image courtesy of Jvhertum, © 2008, some rights reserved.

Image courtesy of Jvhertum, © 2008, some rights reserved.

Although applaudable, this hardly lives up to the standards of the ICC. Today the world roughly resembles the year 1998 in the sense that Kofi Annan’s observation still holds. Syria is a case in point.

In theory, it is the purpose of the ICC to both enforce accountability and to end impunity for world’s most severe international crimes. Given its record, however, it appears doubtful as to whether the ICC is primarily a legal or indeed a political institution. Indeed, the paradox of the ICC is that its legal framework is inherently political.

Legal here means the rule of law. In other words, the same rules apply to everyone. Political, on the other hand, means that the rules are only selectively applied. As soon as this happens, in the words of the ancient Greek historian Thucydides, “the strong do what they can and the weak suffer as they must.” Here, the ICC is a case in point.

With regards to its legal framework, the permanence of the ICC seems to imply its commitment to the law. Its predecessors, such as the International Criminal Tribunal for the Former Yugoslavia or the International Criminal Tribunal for Rwanda, were established only in response to certain crimes. The ICC is here to stay and it has jurisdiction over crimes of genocide, crimes against humanity, war crimes and crimes of aggression, all at once (Art. 5 of the ICC Statute).

Yet there are three factors which seem to suggest that selection remains an issue for the ICC. The first is voluntary membership (Art. 12). The second is complementarity (Art. 17 and art. 18) and the third is exercise of jurisdiction (Art.13).

What is meant by voluntary membership is that all sovereign states can exercise their sovereign right to relent from joining the ICC. States who have done this, perhaps not surprisingly: Russia, China, India, Israel and the United States.

Complementarity means that the ICC does not replace national criminal courts, but steps in only as a last resort in the absence of any action on the part of one of its state parties.  Lastly, exercise of jurisdiction refers to the ICC relying on a trigger mechanism in order to take up a case. According to Article 13 of the ICC Statute, there are three ways in which cases can be relayed to the ICC: A state party can refer a crime to the court. If it does not do so, the United Nations Security Council can. If the Security Council also fails to do so, the Chief Prosecutor of the ICC can launch an investigation.

Already, therefore, there are three factors, which prohibit the universal application of ICC jurisdiction: voluntary membership, complementarity and the trigger mechanism inherent in the exercise of the jurisdiction of the ICC. Therefore, instead of assuring that the most serious violations of human rights law, international humanitarian law, and law of armed aggression are pursued, this framework guarantees that certain perpetrators will never be pursued. Imagine Israel’s Ariel Sharon, Syria’s Bashar al-Assad, or George W. Bush and Tony Blair on trial before the ICC.1

The ICC Statute, rather than serving as a checklist of measures which can be applied in order to apprehend an international criminal, serves as a checklist of measures a state or a head of state can effectuate in order to protect themself from international criminal law enforcement.

Voluntary submission to international criminal law is a choice. It is therefore a political and not legal act. Further, states can choose whether to refer a crime on their territory or concerning their nationals to the ICC. And Security Council members can choose to support or to block such a referral, and after that stage, as evidenced by the on-going civil war in Syria, the Chief Prosecutor has little freedom of action.

In the meantime, the death toll in Syria has risen to 70,000 and Kofi Annan has long handed over his post as the UN-Arab League Special Envoy to Syria to the Algerian diplomat Lakhdar Brahimi.

During its first decade in operation, therefore, because of its inherently political nature, the ICC has done shockingly little to disprove Kofi Annan’s statement of 1998.

1 Note here that going on trial serves to establish the guilt or innocence of a defendant and does not imply that a defendant is automatically guilty of having violated the law.