As we all know, 2016 has seen, on many fronts, a surge of isolationism and nativism, as well as a tendency toward polarization and “post-factual” rhetoric. Against this global backdrop, there were reasons to expect dramatic confrontations at the ongoing session of the International Criminal Court’s (ICC) Assembly of States Parties (ASP). In recent years, discontent with the ICC has been growing, particularly among African states, culminating in three prominent withdrawals (on which see my previous post). If badly handled, the situation could lead to further withdrawals and setbacks for international criminal law.
The ASP has instead offered a promising glimmer of light in the gloom of 2016. On Friday 18 November the ASP held an “open bureau meeting” on the ICC-Africa relationship. The maturity of the discussion renewed my hope in the possibility of respectful listening, open-mindedness, sincere engagement and meaningful change.
Rather than drawing battle lines, delegations from all latitudes generally reached out in a very open and reflective manner. The sensationalist, oversimplified criticisms that are common in media and even academic commentary made little appearance. Instead, delegations generally advanced grounded, focused concerns and possible solutions.
For a great many states, the current impasse was a wakeup call. Instead of reacting to all concerns as attempts to undermine the Statute and the rule of law, delegations showed a sincere readiness for real conversations about the future of international justice. International justice must be inclusive justice. African states helped shape the Rome Statute system and will continue to do so. International justice must also be living and organic, adapting to experience. As the Ugandan delegate explained, a legislature can revise a rule based on experience and changed conditions, which is not necessarily to disrespect the original rule.
The discussion was at times moving. Some delegates at the podium shared heartfelt thoughts, their feelings of connectedness to other states parties, and even the personal tragedies that led them to support international criminal justice.
The three withdrawing states explained their experiences and objections. A few other African states (including Kenya and Namibia) indicated that they were considering withdrawal, and carefully articulated their concerns as well as a readiness to engage in discussion. Most of the African delegations affirmed their continuing support for the ICC and the desire to continue to improve the system.
A widely shared outlook was (1) the core principles and purpose of the Statute should not be undermined, but that (2) where accountability abuts other important values (peace, governance, pluralism), we can discuss how best to reconcile those values. In my view, that outlook is sound and it underlies the Rome Statute. In the original negotiations, many hardliners objected to each of the ‘compromises’ with other important values. But international criminal law must operate in the world alongside other incommensurable values. Some recalibrations, based on African experiences, could make the ICC better not just for Africa but for the world.
Among the suggestions advanced by delegations were:
- Clarify the interplay of Art 27 and 98 (immunity).
- Clarify the structure of the consultation mechanism (Article 97).
- Create some mechanism to allow meetings with persons subject to arrest warrant.
- Clarify that the principle of complementarity includes regional courts conducting genuine proceedings.
- Adopt measures to better engage states without permanent representation in The Hague.
- The ICC and states parties need to better explain the Court’s jurisdictional limits.
- The Office of the Prosecutor (OTP) should give greater weight to potential adverse consequences of its actions, and the timing thereof.
- The OTP should try to improve engagement with governments during preliminary examination.
- The ICC should shed more light on business interests and arms suppliers that fuel conflicts.
- The ICC and states parties should do more to support national prosecutions, including by galvanizing donors to assist capacity building in willing states.
Delegates often touched on the familiar debate about whether the current situation selection reflects anti-African bias, or whether it reflects jurisdiction, gravity, and the absence of national proceedings. Perhaps headway can be made on that intractable debate, by at least agreeing that geographic distribution is a proper consideration under the “interests of justice” (Article 53(1)(c)). Current OTP policy disavows geographic distribution as a factor and prioritizes situations by gravity, but it would be possible to imagine and adopt a different understanding of Article 53.
Some strong concerns were raised which are not easily addressed by the ICC nor by the ASP. These concerns are:
- Some powerful states are not states parties.
- Security Council members can refer situations even though they are not parties.
- Security Council should not refer situations without providing effective support.
Partial, but imperfect, responses include: to continue to press for universal ratification and to continue to press for UNSC reform, for example including instilling restraint on the use of vetos. Obviously both of those will be difficult, long-term projects. But these are things that states parties and others can discuss and press for in earnest. (Personally, I don’t think abandoning international criminal law because some powerful states have not joined is the solution. Such an approach strikes me as inadvertently hegemonic, in that it grants a veto to great powers. Surely a subset of the states of the world can agree to disavow terrible crimes and commit to punish such crimes occurring on their territories, without being held back by non-participating states. Otherwise we are all dragged down to the lowest common denominator.) Obviously, however, these are very complicated issues and there might be other answers as well.
Some delegates found the discussion of limited value, in that no concrete proposals were adopted. However, I thought that the discussion was groundbreaking, simply because of its maturity, respect and open-mindedness. The commitment to dialogue and soul-searching was clear. 2016 had given so much reason to despair about respect, listening, and fact-based dialogue, so the constructive response on all sides was a welcome surprise about what humans can do. The willingness to engage in earnest discussions about adjustments is an exciting opportunity for international justice.