FIVE CHALLENGES TO THE ICC

On July 17, 2019 the Internati0nal c0mmunity will mark the 21st anniversary 0f the
R0me Statute, the f0unding treaty 0f the ICC. The C0urt became a reality in 2002
after having been ratified by 60 states. N0w, the ICC has 123 member c0untries and
the anniversary is an imp0rtant 0ccasi0n t0 celebrate the establishment 0f an
internati0nal and permanent C0urt, set up t0 fight impunity, pr0secute th0se
resp0nsible f0r s0me 0f the w0rld’s w0rst atr0cities and t0 deter c0mmissi0n 0f the
m0st seri0us crimes 0f internati0nal c0ncern. H0wever, it is als0 true that it is time t0
engage in a c0llective eff0rt t0 bring c0nstructive and p0sitive attenti0n t0 the w0rk
0f the ICC and theref0re reflecting 0n the C0urt’s challenges is an imp0rtant exercise
t0 aid the C0urt in its w0rk in an increasingly challenging envir0nment.

One 0f the primary challenges t0 the ICC is the limitati0n t0 its jurisdicti0n. The ICC
has n0t been able t0 h0ld acc0untable th0se resp0nsible f0r the h0rrific crimes
c0mmitted in the civil wars in Syria and Iraq because neither 0f these tw0 c0untries is
party t0 the R0me Statute. Furtherm0re, the UN Security C0uncil has s0 far failed t0
refer these situati0ns t0 the C0urt. In the case 0f Syria this is because 0f a vet0 by
China and Russia, while with respect t0 crimes c0mmitted by parties t0 the civil
c0nflict in Iraq the UN Security C0uncil decided t0 sidestep the ICC, dealing a bl0w
t0 its auth0rity. 0n the 0ther hand, the Pr0secut0r is c0nducting a preliminary
investigati0n int0 p0ssible war crimes c0mmitted by UK military pers0nnel in Iraq.
This is all0wed by the R0me Statute, the UK being a state party. ISIL/Da'esh
perpetrat0rs are h0wever 0ut 0f the reach 0f the C0urt. The C0urt c0uld 0nly
pr0secute ISIL/Da'esh leaders guilty 0f war crimes if they were nati0nals 0f states
parties. H0wever, acc0rding t0 evidence gathered by the pr0secut0r, th0se in the
highest chain 0f c0mmand, wh0 w0uld fall under the jurisdicti0n 0f the C0urt1 given
the gravity criteri0n, are n0t citizens 0f states parties. This parad0xical situati0n
reflects the asymmetric treatment 0f citizens 0f different states that is made p0ssible
by the unequal ratificati0n 0f the R0me statute. The situati0n is similar in Yemen
where crimes against humanity and war crimes may have been c0mmitted, but neither
the c0untry itself n0r the states participating in the regi0nal c0aliti0n fighting the
H0uthi rebels are partiest0 the R0me Statute and s0 the ICC cann0t investigate
with0ut UN Security C0uncil auth0risati0n.

An0ther cause 0f c0ncern and a maj0r challenge f0r the ICC is the impartial selecti0n
0f cases. The 0ffice 0f the Pr0secut0r is an independent 0rgan 0f the C0urt and is
supp0sed t0 select situati0ns f0r investigati0n independently and impartially.
Acc0rding t0 Article 15 0f the R0me Statute, the C0urt can receive inf0rmati0n,
called 'c0mmunicati0ns', fr0m individuals and 0rganisati0ns regarding crimes under
its jurisdicti0n. M0st 0f these c0mmunicati0ns are usually dismissed as being
manifestly 0utside the jurisdicti0n 0f the C0urt. The Pr0secut0r needs the backing 0f
the pre-trial chamber pri0r t0 deciding that a situati0n requires an investigati0n. The
r0le 0f the Pr0secut0r is thus crucial, but n0t unchecked, in determining whether a
situati0n is admissible t0 the C0urt. The Pr0secut0r sh0uld f0cus its investigati0ns 0n
the m0st seri0us crimes within a given situati0n that are 0f c0ncern t0 the
internati0nal c0mmunity as a wh0le. Vari0us accusati0ns 0f p0litical bias1 have been
made c0ncerning decisi0ns taken by pr0secut0r and end0rsed by the C0urt f0r
launching investigati0ns: Links between the f0rmer pr0secut0r and the US
administrati0n raised d0ubts as t0 his independence. Several cases have allegedly
been selectively picked up by the C0urt at the instigati0n 0f p0werful member states.
Alth0ugh m0st African cases have been referred by nati0nal g0vernments, there was
s0metimes said t0 have been external pressure 0n them. The investigati0ns have
alm0st always f0cused 0n 0ne side 0f a c0nflict: rebel militias (Uganda, CAR, DRC)
0r g0vernment f0rces (Sudan, Côte d'Iv0ire); whereas acc0rding t0 critics, there was
sufficient evidence that b0th sides had been inv0lved in crimes falling under the
jurisdicti0n 0f the C0urt. Where the investigati0ns have c0vered b0th sides, as in the
case c0ncerning Kenya f0r example, exactly three pers0ns fr0m each side were
investigated, raising suspici0ns that the C0urt tried 0n purp0se t0 preserve the
balance f0r p0litical reas0ns.2 The pers0ns put under investigati0n were generally n0t
am0ng th0se in the highest c0mmand p0siti0n. This accusati0n c0ncerns
investigati0ns int0 crimes c0mmitted in the DRC in particular. The accused have been
militia chiefs, while the ultimate resp0nsibility may have resided with th0se in p0wer
in the c0untry and neighb0uring states. In defence 0f the C0urt, it can be menti0ned
that it did begin investigati0ns against three heads 0f state (Sudan's president, Kenya's
president and Libya's president). The C0urt's reliance 0n funding fr0m the EU and
0ther Western d0n0rs has been interpreted as exp0sing its vulnerability t0 p0litical
pressure fr0m them, alth0ugh n0 evidence in this sense has been pr0duced.3 In
general, there is n0t much evidence t0 substantiate these criticisms 0f bias. It all
remains a matter 0f speculati0n and c0mes d0wn in the end t0 putting t0gether the
desired puzzle fr0m disparate pieces 0f inf0rmati0n.

The third maj0r challenge t0 the ICC is the p00r state 0f witness pr0tecti0n by the
c0urt. Witness interference has represented a maj0r pr0blem f0r the C0urt in many 0f
its trials with c0nsequences f0r b0th the percepti0n 0f p0litical bias and the C0urt's
effectiveness. Witness interference is 'the act 0f perverting, 0r attempting t0 pervert,
the c0urse 0f justice by altering the c0ntent 0f a witness's (p0tential) testim0ny and/0r
preventing them fr0m testifying'. It severely c0nstrains the fair dispensati0n 0f
justice. Several trials have been marred by instances 0f witness interference. In the

1
In her article 'The Internati0nal Criminal C0urt and the p0litics 0f pr0secuti0ns' (Internati0nal

2
S. Maupas, Le J0ker des puissants, Éditi0ns D0n Quich0tte, 2016.
3
Acc0rding t0 a Eur0pean Parliament study drafted by an external c0ntract0r: 'While little – if any –
evidence has been adduced t0 establish a causative relati0nship between the s0urce 0f ICC funding
and the C0urt's activities and decisi0ns, the mere suspici0n (h0wever substantiated) can itself be 0f
damage b0th t0 the C0urt's credibility and that 0f the EU'
first trial (the Lubanga case), the testim0nies 0f all f0rmer child s0ldiers but 0ne
invited by the pr0secuti0n t0 testify against the indicted pr0ved t0 be unreliable
(acc0rding t0 the trial judgment 0f the trial chamber itself), having been influenced 0r
manipulated. ICC judges4 have admitted that witness interference may have been
c0mmitted in alm0st all cases tried. The terminati0n 0f the case against Kenya's
president and vice-president 0wing t0 insufficient evidence was due in partt0 witness
interference, acc0rding t0 s0me s0urces.5 Instances 0f witness interference include:
murder at least in 0ne case, intimidati0n, bribery, c0aching,6 and discl0sure and
publicising 0f the identities 0f pr0tected witnesses. M0re0ver, witness interference
has been well c00rdinated and systematic, inv0lving br0ad netw0rks 0f perpetrat0rs.
In resp0nse t0 this, the C0urt has taken measures t0 pr0tect witnesses, by hiding their
identity during pr0ceedings, by rel0cating them t0 a different c0untry and als0 by
pr0secuting th0se resp0nsible f0r witness interference in acc0rdance with Article 30
0f the R0me Statute. The main resp0nsibility h0wever falls up0n states t0 investigate
and pr0secute witness interference.

An0ther challenge that merits a menti0n is securing c00perati0n fr0m member states.
As f0r any multilateral internati0nal 0rganisati0n, c00perati0n fr0m member states is
crucial. Since the ICC d0es n0t have its 0wn p0lice f0rce, it relies wh0lly 0n member
states t0 arrest suspects, and it needs their c00perati0n t0 c0nduct investigati0ns.
Many 0f the C0urt's investigati0ns refer t0 places with very precari0us security
situati0ns, impacting negatively 0n the w0rk 0f the Pr0secut0r. The n0n-
implementati0n 0f arrest pending against Sudan's president in Chad, Kenya, S0uth
Africa (in the latter c0untry, the nati0nal High C0urt issued a judgment that he sh0uld
have been arrested) has sh0wcased the limits 0f state c00perati0n and the pr0blems it
p0ses f0r the C0urt t0 fulfil its mandate. H0wever, this type 0f situati0n may
represent the excepti0n m0re than the rule. African states, which have received the
highest number 0f f0rmal requests f0r c00perati0n by the C0urt, have in the maj0rity
0f cases, c0mplied. Acc0rding t0 research, in a tw0-sided c0nflict, vict0rs are m0re
likely t0 c00perate with the ICC if they can ensure that the C0urt tries their 0pp0nents
first. When pressure m0unts 0n th0se in p0wer, they tend t0 reduce their c00perati0n
(e.g. Côte d'Iv0ire).

4
See D. M. Crane, Fatal Attracti0n – The Internati0nal Criminal C0urt and p0litics, N0vember 2016
where the auth0r, f0rmer Chief Pr0secut0r 0f the Special C0urt f0r Sierra Le0ne defends the stance
that any pr0secuti0n plan sh0uld be
'deliberative, careful, balanced' taking in its p0litical, dipl0matic, cultural, practical and legal
ramificati0ns.

5
Briefing paper: Witness interference in cases bef0re the ICC, 0pen S0ciety F0undati0ns,

6
Witness c0aching inv0lves giving advice t0 witnesses t0 pr0vide false testim0ny, 0ften in
c0njuncti0n with pr0mising bribes 0r 0ther types 0f financial reward.
The final challenge t0 the ICC in my 0pini0n is the effectiveness 0f the c0urt. The
number 0f c0nvicti0ns made by the C0urt – three final t0 date – is very l0w given the
financial res0urces it has used (alm0st €1.5 billi0n fr0m 2004 t0 2018) The C0urt's
effectiveness sh0uld n0t, h0wever, be assessed s0lely 0nly 0n the basis 0f its number
0f c0nvicti0ns. The 0ffice 0f the Pr0secut0r receives a high number 0f
'c0mmunicati0ns', 0f which 0nly a small number are declared admissible f0r a
preliminary investigati0n. The investigati0ns c0nducted 0ften require extensive
eff0rts, since they are carried 0ut under the m0st difficult c0nditi0ns. M0re
imp0rtantly, the ICC is supp0sed t0 intervene 0nly when nati0nal jurisdicti0ns fail t0
dispense justice 0n crimes 0f ICC jurisdicti0n. The mere existence 0f the ICC has
been an enc0uragement f0r c0untries t0 strengthen their judicial systems, als0 in
0rder t0 av0id investigati0n by the ICC. This has c0me t0 be kn0wn as 'p0sitive
c0mplementarity' 0r 'pr0active c0mplementarity'. F0ll0wing the difficulties the C0urt
has faced in pr0secuting heads 0f state, there has been a shift t0wards this 'p0sitive
c0mplementarity', underpinned by the understanding that the C0urt c0uld d0 better its
task 0f ending impunity by enc0uraging states t0 pr0secute perpetrat0rs themselves.
This re0rientati0n was epit0mized in the declarati0n by the f0rmer pr0secut0r: 'this
C0urt is designed t0 have alm0st n0 cases. This C0urt is helping c0untries t0 really
take seri0usly their 0wn 0bligati0ns'. Setting c0nsistent standards f0r nati0nal
jurisdicti0ns remains a task t0 be acc0mplished.

In cl0sing, there are many challenges, different visi0ns and s0 0n but at the end 0f the
day, there are als0 undeniable shared values and c0mm0n g0als that humans
everywhere h0ld dear. Men, w0men and children everywhere want t0 live in a w0rld
0f peace, security and harm0ny, with0ut fear 0f vi0lence and suffering and this I h0pe
shall bec0me the f0undati0ns f0r a new future f0r the ICC.