Last week there was much coverage about South Africa’s intended withdrawal from the Rome Statute of the International Criminal Court (ICC), as well as potential withdrawals by other states, including Burundi. The dominant theme in the media coverage was that this is a “major blow” or “devastating blow” to the ICC. I am hesitant about some of the gladiatorial metaphors. I suggest there are differences between a setback for the International Criminal Law (ICL) project, for human beings, and for the ICC. I also suggest a measured perspective, placing these events within a very long, turbulent, contested tale of human governance.
Historic perspective on a long-term project
Our lives are short and history is long. The tumults of our times loom correspondingly large to us, but the longer view can put crises in context. For example, many current criticisms of ICL reflect impatience and indignation that a fully-fledged, mature, international rule of law with global compliance has not been built in a few years. But it took centuries to produce current configurations of state governance and rule of law – the idea that human institutions might try to provide a better approximation of justice in human lives. And even after centuries of practice, errors, disasters, lessons and successes, the state law system is very, very far indeed from perfected. ICL itself is one effort to ameliorate to those flaws. We happen to be alive during a significant renovation in a centuries-old system.
My point is: past innovations in human governance took centuries, not months. They involved much contestation. If people see ICL in historical perspective, they will not expect quick fixes or linear progress. ICL entails politically, sociologically, legally and intellectually difficult and contestable changes to entrenched systems. There will be lessons to learn and criticisms to absorb. If it succeeds, it will do so after lurches, setbacks and pushbacks. Comfortingly, on the biggest scale, human governance has been moving in a positive direction for a long time.
A setback for the project and for humans, but the Court is a court
Second, the currently dominant narrative of a blow to the ICC strikes me as misguided and problematic, because it identifies the wrong object. I believe that withdrawals would be a setback for the project of ICL. And I think it would also be a setback for human beings (because I believe that ICL is net beneficial for human beings). But I think it is misguided to speak of a court as having interests, in the way people seem to be describing.
The ICC is a court. It will continue to carry out its legally assigned mandate: to deal with cases within its jurisdiction. Even if more African states withdraw, the Court will still have more work than it can handle. The Court will move on to other situations, of less extreme gravity but still quite grave enough to warrant action. Situations of more moderate scale and gravity may prove much more manageable for investigation and prosecution. Greater regional diversity of selected situation will result. The Court will continue to serve states, the United Nations, and ultimately to human beings within its jurisdiction. And if withdrawing states decide someday to rejoin the Statute, then their people will once again have the ICC backstopping national courts in responding to atrocities.
Withdrawal is new, because consent is new
Third, withdrawal is unprecedented for an ICL institution, because it has never been allowed before. Previous ICL institutions also provoked extreme controversy, but states had no option to leave. Many Germans were opposed to the Nuremberg Tribunal, Japanese to the Tokyo Tribunal, Serbs and Croats to the ICTY, and Rwanda clashed fiercely with the ICTR. They had good and bad reasons. Would there have been withdrawals if they had been allowed? Almost certainly yes.
The ICC is a new experiment. It is based in consent, either through ratification or through UN member state acceptance of collective security action. Consent is required for legal legitimacy in the contemporary international legal setting. ICC membership asks a great deal of state leaders. It means accepting the possibility of having one’s officials (or oneself) investigated and prosecuted. Thus it pits self-interest against comparatively nebulous social and normative aspirations. Time will tell which wins out.
What lessons should be drawn from withdrawals? The answers should not be hasty. When the USA withdrew from the International Court of Justice (ICJ) because it did not like losing in the Nicaragua case, it diminished the credibility of the USA, not the ICJ. We need to carefully disentangle: (a) well-founded concerns; (b) concerns that are held in good faith but ultimately not well-founded; (c) pretexts to protect leaders who prefer not to be held accountable for killing hundreds or even thousands of their citizens.
The argument given by South Africa was that the ICC should not request arrest of a head of state. While I personally think that the ICC’s 2014 legal conclusion on immunities is basically sound, the policy concern here is at least understandable. Perhaps a consultation mechanism to allow certain contacts with persons subject to arrest warrants would be a justifiable balance with other important aims.
The current backdrop is the concern that the ICC is biased against Africans. The ICC response is that most interventions were requested by the African states themselves, and that it has responded to the gravest admissible situations within the Court’s jurisdiction. I think it is regrettable that so many people dismiss the Court’s explanation without serious factual engagement. I think that tendency has impoverished the conversation. Nonetheless, there is still an understandable grievance even if one does not endorse the accusations of rule-twisting. Eight out of nine situations on one content is not diverse. I think admissible situations should not be prioritized only by gravity; it can be argued that regional diversity is a factor under “interests of justice”, to better promote lasting respect for international justice.
I hope that discussions will try to distinguish the three types of concerns and respond thoughtfully. Further, regardless of one’s views on the project, it likely helps to be mindful that this is part of a process unfolding over centuries.