The International Criminal Court’s Promise of Justice

Atrociously violent events have shocked the world in recent weeks. France, Nigeria, and Syria, to mention just a few places, have been sad testaments to inexplicable brutality. In such moments, when international society asks itself how to stop these acts and prevent them from happening again, it remembers international justice, perhaps the most important promise of the last century to develop an antidote to such atrocities.

Obviously, no one expected that the mere establishment of the Rome Statute would cause violence and impunity to disappear by magic. But the international community has decided to address conflict through a series of rules that adopt punishment as a last resort to control unjustifiable actions. No matter where such atrocities are committed, who commits them, or why.

As we approach the 20th anniversary of the writing of the Rome Statute and the creation of the International Criminal Court (ICC), we ended 2014 with some events that seem to renew trust in justice and give hope regarding the consolidation of the Rome system:

• The 13th Assembly of State Parties was held in December 2014, and brought together 122 State parties, the Court, the Prosecutor, and civil society activists. In spite of criticism regarding the meeting, the Assembly demonstrated that there is still political interest at the international level regarding the topic. The Assembly created a space for the discussion of a key issue for the system: the obligation of State parties to cooperate with the Prosecutor and the Court.

• In early 2015, Palestine was accepted as the 123rd State Party to the Rome Statute. At almost the same time, the Prosecutor decided to open a preliminary investigation.

But, at the same time, 2014 continued generating doubts regarding the ability of the system to respond to the enormous expectations to which it is held. Some of the most important setbacks of the Prosecutor this year:

• In December, Prosecutor Bensouda publically announced that she had decided to lift the charges against President Uhuru Muigai Kenyatta. The Court requested the Prosecutor strengthen the case providing additional evidence, which the Prosecutor could not do, accusing the government of Kenya of not cooperating with her requests. Thus, the high profile political battle for ICC intervention in Kenya ended in a solid loss for Bensouda.

• Several days later, Prosecutor Bensouda announced the closing of the investigation in the Darfur region. According to the Prosecutor, lack of UN action prevented her from obtaining results in her investigations, and she informed the Security Council of this.

These cases are in addition to those in which the facts beg for the system’s intervention, but in which justice is too slow or precarious to overcome political barriers:

• A dramatic case is the inaction of the Security Council in Syria. Russia and China have done everything possible to avoid the Council’s rhetoric (that “those responsible be brought to justice”) from becoming reality. While the issue is debated in New York, the humanitarian crisis grows in Syria.

• Another case is Nigeria. In 2010, the Prosecutor found that there was sufficient reasonable evidence to believe that Boko Haram had committed acts that could be considered crimes against humanity. Since then, the preliminary investigation is currently in phase three of admissibility. But beyond the Prosecutor’s visits, the ICC’s actions have been timid, and meanwhile the violence grows, leaving more than 2000 victims this year alone. And it has only been two weeks.

It is worth highlighting that responsibility for the success or failure of the Rome system depends on all the actors involved (principally States), and cannot be seen merely as a question of the Court or Prosecutor’s management. In fact, some of the most interesting current discussions regarding the ICC focus on this point, including the constructive and stimulating debate in the open Global Rights blog regarding questions of complementarity and the phrase “in the interest of justice” (in this blog, as well as a book Dejusticia recently published, Rodrigo Uprimny and I discuss our position on these substantive issues in greater detail).

The system is far from perfect. We must accept that. But as Richard Dicker says, “throwing justice under the bus is not the way to go”. In the end, if the Rome system fails, not only will the ICC or the Prosecutor fail; the international community will have failed to provide a rational mechanisms to confront massive and atrocious violence. And this failure will be entirely ours.