Defending the International Criminal Court Means Improving It

This has been a rough month for the International Criminal Court (ICC). After years of threats of withdrawal from the Rome Statute which created the ICC by African states, South Africa, Gambia and Burundi have made moves to do so this month (South Africa and Burundi have formally notified the UN of their withdrawals while Gambia has merely signalled its intention to do so). Others may follow suit if the harsh rhetoric that both Uganda and Kenya have used against the court is any indication. Harsh words are not new, nor will the withdrawals unravel the ICC, but these moves are a stark reminder of the depth of frustration in some parts of Africa.

These frustrations are often dismissed as simply the self-serving rhetoric of political leaders intent on avoiding accountability. And certainly this is part of the problem. While certainly some leaders use misinformation and attempt to manipulate public opinion against the ICC for their own gain, advocates must also recognise that many of the critiques of the ICC are genuine.

In many places, affected communities are frustrated. It is unfortunate that political elites are exploiting these grievances for their own purposes, but we must recognise that they can do so precisely because these grievances are real. The ICC has failed to meet the, admittedly perhaps too high, aspirations that its creation and intervention inspired in many quarters.

More needs to be done to counter the self-serving rhetoric and to build political support for the ICC – both in Africa and abroad and the statements of support that have come from African states are a welcome first step in this regard. However, in addition to countering rhetoric, advocates must engage in serious conversation about what has and has not worked, why and what can be done better.

In this context, the recent book “Two Steps Forward, One Step Back: The Deterrent Effect of International Criminal Tribunals,” edited by Jennifer Schense and Linda Carter and published by the International Nuremburg Principles Academy, with its rigorous analysis of the deterrent impact of international justice in ten countries to date, is a welcome contribution.

Why deterrence?

In a recent piece published by IRIN, L. Muthoni Wanyeki articulated deterrence as one of two core promises of the ICC at its inception, saying “implicit in the call ‘never again’, was the idea that ending impunity would serve as a deterrent.” This notion is embedded in the preamble to the Rome Statute itself, which set out one of the rationales for the creation of the court as “to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes.” Of course, prevention is broader than deterrence, and neither is the sole rationale for the court, but deterrence is one of the key arguments in favour of the ICC.

At first blush, little progress is apparent. As Wanyeki articulates in her piece, “a cursory glance around the continent demonstrates that incumbent leaders and armed groups still behave badly… Ordinary Africans are as disposable in the calculations of power as we have always been.” Certainly, international crimes continue to be committed in Africa and elsewhere on a horrific scale. But that crimes are continuing does not mean that the ICC has not had an impact.

Deterrence in Sudan

IRRI was honoured to contribute a chapter “Deterrence in Sudan: The Limits of a Lonely Court” to the recent book. This case illustrates some of the key issues confronting the court. The announcement of the ICC referral in 2005 was greeted with joy by many in Darfur, but eleven years on many are, understandably, disappointed. No one has been convicted. Meanwhile, violence continues, not only in Darfur but also in Southern Kordofan and Blue Nile. To add insult to injury, the conflict has faded from the headlines, and Europe appears willing to bring the government of Al Bashir in from the political cold in exchange for his support on managing migration in spite of the arrest warrant issued against him by the ICC. In this context, it is not surprising that some Sudanese activists interviewed for the chapter said that the ICC had failed.

A closer look, however, raises some questions. First, we need to define expectations in a way that is realistic. The ICC was never intended on its own to stop all crimes. We don’t expect our domestic justice systems to bring the crime rate to zero. We look for a reduction in crime rates and we recognise that there are circumstances which the justice system cannot address. We should do the same with the ICC.

Second, although proving deterrence is problematic methodologically (a reality discussed in more detail in the chapter), there is some indication that there was a drop in the level of violence immediately following the referral. The violence never stopped altogether, and recently it has returned to a scale reminiscent of the atrocities of 2003-2004 which drove the referral, but it is worth exploring the possibility that the initial drop in violence was a result, at least in part, of accountability efforts but that this has been eroded by the lack of appropriate follow through. How can we better analyse the issue of causality? And if accountability efforts did have a deterrent effect, how could that be made stronger and more sustainable.

Third, where deterrence has failed, we must examine why if we are to remedy this situation. It is a general rule of deterrence that it is the certainty of sanctions more than any other factor that weighs on the minds of potential perpetrators. Part of the responsibility for ensuring this certainty lies with the ICC in ensuring effective prosecutions. The collapse of a number of cases, particularly in Kenya, has done little to inspire confidence among victims or deter potential perpetrators. However, we need to also acknowledge that this lack of certainty is exacerbated by the lack of cooperation by states on arrests. It is not clear how effective deterrence would be if there were arrests, but it is unrealistic to expect deterrence without arrests. In addition, states have failed to take the opportunity to reinforce the deterrent effect of ICC action through non-judicial sanctions such as targeted financial sanctions and travel bans.

What next?

The ICC may be an imperfect institution, but it is worth noting that despite their frustration, many Sudanese interviewed for the chapter on deterrence continue to support it. They are frustrated with the lack of progress so far, but they call for more support, for more investigations, and generally for more accountability to remedy this.

Their attitudes should guide us as advocates. We must take on the misinformation and point out the politically self-serving rhetoric, but we must also build support for the ICC by helping to build a better, more effective court. And in order to do that, we need to better understand the nuance of the current dynamics and to engage both directly with the court and with the international system that surrounds it.

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