Part I- This is not fine: The International Criminal Court in Trouble

Editor’s note: This is Part I of a three-part series.

There is now a real sense that the International Criminal Court is in trouble. The questions are: how much, why and what is to be done?

The UK pulled no punches in its statement to the 17^th International Criminal Court Assembly of State Parties:

The United Kingdom strongly supports the aims of the ICC and believes there is an essential role for an international institution like the Court in delivery of justice at the international level. But as an Assembly of States Parties to the Statute, we cannot bury our heads in the sand and pretend everything is fine when it isn’t. The statistics are sobering. After [nearly] 20 years, and 1.5 billion Euros spent we have only three core crime convictions. As others have said, and I quote “it is undeniable that the Rome project still falls short of the expectations of the participants at that ground-breaking conference in Rome”. The time has come for States to take a fundamental look at how the Court is operating. We need to work together to address the challenges, for the future health of the Court, a Court that we care about deeply.

The UK statement, delivered by Legal Director Andrew Murdoch,* ‘welcome[d] the steps taken by the Prosecutor to investigate the media allegations surrounding the former Prosecutor that surfaced twelve months ago’ and noted that the ‘Court is in danger of spending more money on internal litigation, including litigation on salaries, than on victims’.

Some will no doubt point to ongoing ICC investigations into the actions of UK personnel in Iraq, to impugn the UK’s motives in making these points. Its criticisms, however, are undeniably grounded in fact. Things are not fine. In April it will be 16 years since the Court’s first prosecutor was sworn in. A widespread sense among the ICC’s supporters that there is some soul-searching to be done about the future direction of the Court has only been heightened in the weeks since the Gbagbo acquittal.

Let’s be clear about the paucity of concrete results. There have been eight convictions, one overturned on appeal, one arising from a guilty plea and four relating to Article 70 administration of justice offences. The four convictions for offences against the administration of justice all arise out of the Central African Republic investigation and involve sentences of 6 months to 3 years. The other convictions may be summarised as:

• Bemba (CAR) – sentenced to 18 years, overturned on appeal; an administration of justice case continues;
• Katanga (DRC) – sentenced to 12 years, transferred back to DRC custody with ‘sentence served’ after 8 years;
• Lubanga (DRC) – convicted to 14 years;
• Al-Mahdi (Mali) – proceeded on a guilty plea and was sentenced to 9 years.

This is to set aside the very considerable disquiet expressed regarding the Katanga conviction, involving the dismissal of charges against his alleged co-perpetrator and judicial recharacterization of the relevant mode of liability after the close of proceedings. There is also now the very public embarrassment of both the collapse of the Kenya situation prosecutions and now the entry of acquittals on a “no case to answer” motion by the Trial Chamber in Gbagbo. As Labuda notes, if the Gbagbo acquittal is upheld on appeal, the ICC will be in the ‘rather awkward’ position of having acquitted more alleged international criminal than it has convicted. Indeed, as Dürr points out, to have more acquittals and terminated proceedings than convictions is unique among international criminal tribunals.

There are certainly more complex, and arguably more important, metrics by which to judge the success or failure of an international criminal tribunal than the number of its convictions. Indeed, we would rightly be sceptical of the fairness of proceedings that only resulted in conviction. However, to the extent that the Court is meant to serve expressivist goals, fight impunity, or deter atrocity – it must present some credible threat to those who should fear accountability. It is often argued that the simple possibility of ICC accountability may deter atrocity and that the existence of institutions may change behaviour. As lawyers we know that behaviour changes in the ‘shadow of the court’, but that court must first cast a shadow.

In a series of reflections, I will argue that we should now be very worried about the extent to which the Court is casting much of a shadow at all. In exploring who and what is to blame for this situation, I will pursue two themes: conditions and culture.

Many defences made of the Court point to structural or contextual issues: limited State cooperation, the challenge of its wide jurisdictional mandate, budgetary constraints, etc. Such arguments are often raised to displace blame from the Court (“The problem is not the Court, but States.”). The difficulty is that such arguments raise the awkward question: is the Court’s job one which can successfully be done at all under present conditions? The next question is one of the Court’s internal systems, processes and culture. That is: if the Court’s job is capable of being done, is this Court capable of doing it? Reluctantly, I will be suggesting the answers to both questions are “probably not”.

The remainder of this blog post will be about the structural conditions under which the Court operates: both in terms of the present political climate and its institutional design. I doubt much of what I offer up here will be new to any international criminal law specialists, but I hope I might distil some of the issues for a wider international law readership. A subsequent post will examine the cultural questions, with a focus on the role of the Office of the Prosecutor and the ICC judiciary (‘Chambers’). A final post will consider some of the more (and less) realistic prospects for reform. In those conclusions, I shall take up the argument of Stahn that one virtue upon which the future of international criminal law may depend is modesty. I will suggest it is likely the key virtue – along with collegiality – the Court needs to pursue, at least for some time.   

Can the Court succeed in the present climate?

On this blog, Richard Goldstone has offered a thoughtful response to criticisms of acquittals at the ICC. He begins, fairly, by noting the ICC after 17 years of substantive activity does not look especially productive compared to what the International Criminal Tribunal for the former Yugoslavia achieved in 22 years: the latter ‘indicted 161 individuals of whom 99 were sentenced, 19 acquitted and 13 referred to domestic courts’. Goldstone argues the comparison is not a fair one as the ICTY: had a restricted geographical remit, while the ICC has territorial jurisdiction over 123 member States; was empowered by a Security Council Resolution binding upon all States; and had the active support of the United States.

Conversely, we can ask are these real points of comparative difference or actually an articulation of some of the criteria for success for any international criminal tribunal. First, territorial access is plainly critical in gathering evidence and building a case. Second, like it or not, international criminal tribunals need powerful patrons to operate successfully. The Nuremberg Tribunal was operated by occupying powers. The ICTY only really gathered pace when the EU made cooperation with it (and surrendering suspects to it) a precondition for accession talks with the successor States of the Former Yugoslavia. The International Criminal Tribunal for Rwanda was transparently dependent on the cooperation of Rwanda. The establishment of the hybrid courts in Sierra Leone and Cambodia required a political settlement to be reached between the national governments and the UN, and even then faced practical difficulties in their operation. One might further note that in each of these cases international criminal tribunals – other than the ICTY up to 2001 – was essentially operating in a post-conflict environment and not seeking to mount cases while crimes continued or to prosecute those still in power.

Third, we can ask the question which always lurks in the background: resources. The point is often put that if we would like to see better cases put up at the ICC, the OTP will need to widen its investigations. Building cases against a variety of mid-level leaders first, the argument goes, provides a better foundation for pursuing high-level leaders later. This could be done, it is suggested, if only the Court had more resources. The argument is that State parties should provide more funding and therefore must take part of the blame if the Court is not succeeding. The point again, however, can be inverted. If it is true that the Court can only succeed with more resources, and it is quite clear that State parties will not provide them: is the Court’s job possible at all?

Realistically, there is no appetite to give the Court any substantial increases in its operating budget. The Court, as an institution, has not done itself any favours in this regard. As the UK ASP statement highlights, State parties are increasingly exasperated at the expensive employment litigation occurring within the Court itself. Space prohibits discussing the extraordinarily poor (and expensive) track record of the ICC Registry in being successfully sued by its own employees for unfair dismissal, or the open secret that six past or present ICC judges – including the current president – are litigating the alleged paucity of their €200,000 euro tax-free salaries, plus benefits and pensions when compared to those of ICJ judges.  The body with jurisdiction over such claims, the Administrative Tribunal of the International Labour Organization, could be at risk of deciding more cases about the ICC than the ICC resolves cases of its own. Such unfortunate facts only add further weight to the argument that if additional international funds were to be found for transitional justice projects, the ICC would not necessarily be the best way to spend them. 

The other points Goldstone makes in essence are:

• that acquittals establish the fairness of proceedings and the independence of judges;
• that any individual acquittal is not per se evidence of prosecutorial lapses or failure;
• that prosecuting state actors is often difficult because they are not themselves usually direct perpetrators and circumstantial evidence may be needed to link them to crimes.

As Batros notes, points such as these have merit, and the ICC is more than just its Prosecutor, ‘but it is hard to see how the Court can succeed if the Office of the Prosecutor is failing to present convincing cases.’ I will turn in a later post to the Office of the Prosecutor and its management. Batros makes the compelling point that ‘recent setbacks … may lead to a vicious cycle:  States Parties may become more reluctant to provide the additional resources required to conduct the more extensive investigations … that, in turn, may be required to address the underlying problems.’

My only quibble with the analysis is the suggestion this is a possible risk. I’d suggest it’s quite likely the present reality that States are unwilling to invest further funds in the ICC given its paucity of results. The UK ASP statement is but the plainest piece of evidence in point.  

Is the Court built to succeed?

The Court is also constrained by elements of its institutional design. Many of these have been noted before, but most recently by former ICC Judge Christine Van Den Wyngaert in a sobering interview (available in Dutch) highlighting the problems created by establishing the Pre-Trial Chamber (PTC) division of the Court and the process of victim participation. These are the two issues I’ll treat briefly here.

First, it is a widespread observation that the PTC has added time and expense but little additional value to ICC proceedings. Van Den Wyngaert refers in her interview to the PTC as a ‘mistake in the legal architecture’ and as failing in its original purpose of making sure that strong cases went to trial and weak cases were weeded out: ‘instead of accelerating everything, it just slowed everything down’. Certainly, the existence of the PTC layer of proceedings has not assisted the cumbersome number of interlocutory appeals. Van Den Wyngaert also reflects on her experience of Gbagbo, a storm she watched brewing for five years: a prosecution case that was initially too weak to confirm, the Prosecutor being given an opportunity to improve her evidence and repackage the case, a referral to trial over Van Den Wyngaret’s dissent, and an acquittal which ‘confirms the big doubts I had then.’ While she doesn’t put it this bluntly, Gbagbo can be seen as a failure of the PTC concept – instead of excluding a weak case it granted the Prosecutor a series of second chances that resulted in nothing but delay and a trial commencing on a flawed case theory backed by some 80-odd witnesses who were collectively unable to link the crimes committed to Gbagbo.

Second, while victim participation at the ICC was seen as an important step forward at the time, it has not proven a boon to the Court or, it would seem, victims themselves. As I have noted elsewhere, the idea that victims should have a right of access to a remedy and a right to participate in criminal proceedings against perpetrators is obviously an important one. It is also extremely challenging to deliver at the international level where resources are limited and justice selective.  There is thus a distinct risk that the ICC may unrealistically raise the expectations of victims regarding their (ultimately limited) ability to participate in proceedings or obtain reparations through Court processes.

On the first point, victim participation in ICC proceedings has proven complex and difficult. I will not rehearse all the points that could be made here. While, inevitably, one can raise the “teething problems” defence the Lubanga proceedings were obviously slowed down significantly by interlocutory appeals on victim’s participation questions (Although ICC Judge Betram Schmitt has contested this conclusion). There is also the problem of, in Kendall and Nouwen’s memorable phrase, the narrowing pyramid of victimhood under the ICC scheme. That is, the result of layers of process is that only a small number of actual victims (those affected by the crimes finally charged against a particular accused) out of a very large pool will legally be “victims” in relation to a particular case. 

Second, there are substantial inefficiencies in the reparations system. Reparations under the ICC Trust Fund for Victims are not, of course, limited to those who participate as victims in a particular case. The Trust Fund for Victims already has a dual mandate. It is both the mechanism by which court ordered reparations are implemented and it may also provide to victims and communities of victims funded through voluntary donor contributions. Van Den Wyngaert dryly notes that the second mandate ‘devours less money’ and suggests it would be possible to decouple the question of assistance to victims entirely from the criminal proceedings (I agree and will come back to this in a later post in this series).

Conclusions

Obviously, many governments still espouse their commitment to the Court. A mass walkout of African States has not occurred and, indeed, Malaysia has joined the fold balancing somewhat the withdrawal of Burundi and the Philippines. Nonetheless, support for the court is markedly less energetic and enthusiastic than once it was. This is not entirely the Court’s own fault. As Kersten has noted, international institutions reflect the times in which they were founded. We have moved from the heady cosmopolitanism of the 1990s and its post-Cold War institution-building to a period of tribunal and law-making fatigue, along with resurgent nationalism and its emphasis on impermeable sovereignty. We should be slow to ask for the Court to be reshaped to reflect present realities, as such a Court would likely be a hollowed-out, pointless shell. At the same time, it is dangerous for a legal institution to get too far ahead of the surrounding political environment. The ICC perhaps reflected the zeitgeist of its time – the idea that the promise of law is that power should always be accountable; nonetheless, that may make it the wrong court for these times.

Institutionally, there is a difficult, narrow path for the Court to walk at present. Part of law’s authority comes from the fact that it is an autonomous domain of reasoning. When a court makes decisions, through a process of legal reasoning, that seem out of step with political reality such decisions may justly be hailed as a sign of its independence. Too many such decisions, though, may risk its legitimacy – or at least its support. And without the support of States, the ICC is nothing. Over the long run, it is difficult to disestablish international institutions. They may limp along, seemingly irrelevant until more conducive circumstances allow their revival (And it may be that at some future point conditions change).

The risk for the ICC is that if its organs stray too far from the path is that of a preference cascade. Economist Timur Kuran gave us this idea: that most of the time people will act not in accordance with their preferences but as they think they ought, thus inadvertently making widespread discontent invisible until a tipping point is reached. If a sufficient number of people realise they share the same (previously ‘wrong’) preference, then change can spring seemingly from nowhere. At present it remains, despite repeated long rumblings from within the African Union, seemingly unthinkable that most member States would consider leaving the Court. To do so would still be seen, perhaps, as voting in favour of impunity. However, one can sense a certain weariness among the Court’s supporters. Too many more missteps and there could be a preference cascade. A decisive swing among members towards ‘regional justice’ or other alternative mechanisms is not unimaginable. 

An important issue in sticking to the path of institutional survival then becomes the ICC’s ability to avoid missteps. These go to questions of practice, procedure and the Court’s internal workings which I will address under the heading of ‘culture’ in my next post.

Author’s note: *In the interests of full disclosure I note that I have co-authored two book chapters with Mr Murdoch. Neither he nor any other government official was consulted in the preparation of this series of blog posts.

I am grateful to Sarah Nouwen, Joanna Kyriakakis and Yvonne McDermott for comments on early drafts of various sections of this series of blog posts. The usual disclaimers apply.