Is the International Criminal Court Crumbling Before Our Eyes?

David Bosco
October 26, 10:14 AM
Is the International Criminal Court Crumbling Before Our Eyes?

In April, King Willem-Alexander of the Netherlands ceremonially opened the International Criminal Court’s new headquarters, nestled on the outskirts of The Hague near the North Sea dunes. The building project, which cost more than $240 million, aimed to provide the court’s 800 employees a permanent space to pursue their mission of prosecuting war crimes, crimes against humanity, and genocide. The ceremony featured speeches celebrating the court’s journey from a lofty idea to a concrete reality.

Just six months later, the ground appears to be crumbling under the court. South Africa’s decision last week to abandon the court stunned the international community. That decision came hot on the heels of a vote by Burundi’s parliament to leave the court. How did the ICC fall so far, so fast? And could its very existence be in doubt?

The nightmare scenario for the court is that the departure of a prominent power like South Africa will spark a coordinated exodus that some skeptical African leaders have long advocated. It’s not hard to identify likely candidates for the exits. Kenya has had poor relations with the court since 2011, when the prosecutor filed charges against several prominent politicians, including two who would become president and deputy president. The case against President Uhuru Kenyatta eventually collapsed, but the Kenyan parliament has already urged the government to withdraw from the court, and there are signs it may finally do so.

Uganda’s president, Yoweri Museveni, has also become vitriolic toward the court. At his inauguration in May, he called the ICC a “bunch of useless people,” which prompted some Western diplomats to walk out of the ceremony. Museveni’s animosity has been painfully ironic in The Hague because he asked the court to investigate abuses by the Lord’s Resistance Army in 2003, an invitation that led to the court’s first indictments. This week, authorities in Gambia also set in motion the withdrawal process, lambasting the ICC as the “International Caucasian Court.”

Further departures would diminish the court’s legitimacy and limit the scope for future investigations. Absent a resolution from the U.N. Security Council — tough to get in the best of times — the court can only investigate when states give it jurisdiction over their territory and nationals. Exiting states aren’t merely expressing displeasure; they are shrinking the court’s room to operate and undermining the court’s claim to be a bulwark against atrocities.

Even if the nightmare of large-scale African withdrawals materializes, the court could still function. International organizations are hard to kill, and there’s no reason to think that the dozens of ICC members in Europe and Latin America would follow the African lead. But an ICC with few African states would be a shell of its former self. And the governments that provide the bulk of the court’s funding, including Germany, France, Japan, and the United Kingdom, would likely question whether their millions of dollars in annual dues are being well spent. They may shift their money and energy toward regional courts and ad hoc tribunals or toward encouraging domestic accountability. And the loss of interest by major financial contributors could force the court to hemorrhage staff and scale back existing investigations.

The court’s fate may therefore hinge on coming deliberations of the African Union, the regional organization that has already passed a series of resolutions critical of the court and its prosecutor. The AU has repeatedly asked the ICC and the U.N. Security Council to defer charges against African heads of state and has been frustrated as those attempts have been rebuffed. In January, the AU tasked a committee headed by Ethiopia’s foreign minister with “the urgent development of a comprehensive strategy including collective withdrawal from the ICC.” South Africa has no doubt boosted that initiative, and a regional dynamic could emerge in which AU members feel compelled to demonstrate their anti-ICC bona fides.

But it’s not a given that African capitals will fall in step with South Africa. Kenya has been attempting to coordinate African withdrawals for several years, with little success. Individual African governments have reached different conclusions about the utility of the international court. Nigeria, Africa’s most populous country, has been muted in its criticisms of the court despite being the subject of a preliminary inquiry. And the ICC still has a few stalwart allies on the continent, including Botswana.

Even African governments with no love for the court might balk at leaving. The South African government is facing domestic blowback for its decision, and ICC supporters have filed court action contending that the decision was unconstitutional. Even absent such resistance, leaving the court would require many member states to change domestic legislation. For many African governments, particularly those that see little immediate danger from The Hague, exiting the ICC may be more hassle than it’s worth.

Given these obstacles, the most likely outcome is that a handful of additional African states will depart. (A few non-African states could also leave; the prosecutor recently warned the Philippines about a wave of extrajudicial killings, and firebrand President Rodrigo Duterte would surprise no one if he pulled up stakes.) Even a few additional departures would be a stiff rebuff, but it’s likely that the court will avoid a crippling exodus.

Can the court do anything at this point to help its own cause? The principal African complaints have been the diplomatic complications of prosecuting senior political leaders and perceived bias against African countries. In theory, there are ways that chief prosecutor Fatou Bensouda could adjust on both fronts. The prosecutor has almost complete discretion about which individuals to prosecute and could decide to focus future investigations on mid-level perpetrators and away from senior leaders. Recent court documents have hinted that such a strategy could already be in motion.

The regional imbalance in prosecutions will be more difficult for Bensouda to address. Nine of 10 active court investigations are in Africa (the one exception is Georgia). The court has “preliminary examinations” ongoing in non-African countries, but several of them, including Afghanistan and Palestine, pose daunting political and investigative complications of their own. Investigations in Afghanistan or Palestine, for example, might provoke a new crisis in the positive but fragile U.S. relationship with the court. The U.S. Congress could respond to scrutiny of American or Israeli forces by forbidding even the modest support the United States now offers the court. In any case, tweaks to prosecutorial strategies might come too late to influence the fast-moving African dynamic.

Ten years from now, the sparkling new ICC headquarters will almost certainly still be the headquarters of international justice. But its occupants will have to become content with a much more limited role in international politics than its founders had imagined