International Criminal Court at 21: controversy still remains
This week marked 20 years since the signing of the Rome Statute, the international treaty that brought into existence the International Criminal Court (ICC), a court created to prosecute war crimes committed throughout the world. In the UK the anniversary went largely unnoticed; yet it deserves a nod of recognition by those who believe in justice and the fight against impunity. Moreover, it serves as a reminder that the UK can and should play its part by using its own universal jurisdiction (the ability to prosecute international crimes that have no connection to the UK) to investigate and prosecute those suspected of such crimes who are found in the UK.
There is no question that the ICC has many faults. Expensive, bureaucratic and slow moving, less than ten people have been convicted since its inception. The fact that all of those prosecuted have been African men has done nothing for the court’s reputation. The failure by South Africa in June 2015 to arrest President al-Bashir of Sudan - indicted by the ICC for genocide, war crimes and crimes against humanity in respect of the situation in Darfur - whilst he was visiting South Africa, highlighted the scepticism in Africa towards the court. Subsequently, there were threats by several African countries to withdraw.
The court has struggled to demonstrate its credibility in other ways. The US, Russia and China are the most significant of a number of countries who have never brought themselves within the court's jurisdiction. The sense that this is an optional form of justice was reinforced by the recent decision by President Rodrigo Duterte to withdraw the Philippines from the jurisdiction of ICC the moment the court opened an investigation into allegations of crimes against humanity committed during his controversial war on drugs.
Change is coming slowly to the court however. Cases currently under investigation now include situations from around the world, not just Africa. They also significantly include cases in which western nations are accused of war crimes: the on-going investigations by the court into alleged crimes committed during the Iraq and Afghanistan conflicts being prime examples. This week the court has also added aggression to the crimes that fall within its remit. Whilst it will not have retrospective effect, it may cause leaders to think twice in the future before using armed force against the “sovereignty, territorial integrity or political independence” of another state without clear legal justification.
If nothing else the court’s existence provides a rallying point for those nations that take seriously their responsibilities to prosecute international crimes, amongst them the UK. The UK has prosecuted several individuals for torture, among them Agnes Taylor, the former wife of Charles Taylor, who will stand trial at the Old Bailey in October charged with offences allegedly committed during the conflict in Liberia.
At a time when much of the world seems to have fallen out of love with international institutions, the ICC is one that, for all its faults, must be preserved and supported. It must also be challenged to adapt to ensure that it delivers a credible form of justice recognised by the majority. The UK and other countries that take their international obligations seriously must continue to support its work, including, where appropriate, bringing prosecutions for international crimes before their own courts.
This blog first appeared in The Times, 19 July 2018
Should you have any questions about the issues covered in this blog, please contact a member of our Criminal Law team.
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