By Francis Dusabe*
In its 15 years of existence, the International Criminal Court is undergoing an acceptance crisis especially on the African Continent. Political narratives have significantly shaken the Court’s legitimacy and has led to the questioning of its relevance in today’s world.
This paper examines Acceptance challenges faced by the court as of 2017 and explores prospects for change to enhance its social impact.
On 17th July 2017, the international Criminal Court will clock 15 years of existence with only 26 cases across 10 situations. To reach where it is, it underwent a series of political condemnations, many of which were based on its operational and political flaws that pushed various State parties to consider quitting.
Whereas its existence symbolizes the global consensus that crimes of concerns to humanity as whole should not go unpunished, the court suffers from strategic flaws which, once unaddressed, will eventually become a turndown to the morale behind the whole project of International Criminal Justice.
This paper looks into the challenges faced by the court as of 2017 and explores prospects for change to ensure that the ICC, once a beacon of hope for Victims of international crimes, remain in existence with tangible social impact. More specifically, it explores the drives behind state acceptance of international criminal justice and the impact of Narratives on the Court’s perception. This paper ends with proposals on how to improve its image as a Court not only for Rome statute State Parties, but as an important arm for maintenance of world peace and security.
State Acceptance of international justice
State’s acceptance of International justice may be looked at on various aspects and may be investigated through various dimensions and factors namely the people concerned, how justice is defined in local context and the Victims’ expectation of what International Criminal Justice can bring.
Admittedly, a correlation can be established between ICC membership and the level of state acceptance of international criminal justice. In contrast, there is big data to showcase that doing well in terms of advancing international criminal justice is not necessarily linked to the ratification of the Rome Statute.
State practice illustrate that State parties which break their obligations under the statute weakens the Court’s prospects of being accepted worldwide. For instance, failure to arrest President Omar El Bashir by member states had a degrading effect on the Court, because it demoralized its enforcement momentum.
Likewise, non signatory states who do more than what they are expected of, not only advance the ideals of the International Criminal Court, but also effectively send a message to the world that Impunity has no place in the modern world. To illustrate this, the arrest of Jean Bosco Ntaganda by non member states to the Rome statute and their cooperation for his transfer to the Hague in 2013, is an indication of their level of acceptance and submission to the ideals of the International Criminal justice, without necessarily being members of the International Criminal court.
While State practice offers a bifurcated response as to the level of acceptance, Geopolitical reasons may also determine attitude and perceptions of States towards the international Criminal court. Geographically, the remoteness of the International Criminal court from victimized states prevents the Court from exalting a tangible social impact. Victims criticizes work of the court as not reflecting the reality on the ground. It is the Victims perception that the Court’s loyalty to international community rather than focusing on the needs of victims, remain a knife in the already strained relationships between international courts and the victims.
Politically, the dependency of International criminal court on political support by major political blocks, combined with the lack of political will on the side of some powerful states to acquire its membership, continue to challenges the ability of the court to decide on its own without being politically influenced.
Admittedly, a court of the size of the International Criminal Court cannot survive some level of political influence. From its funding to the appointment of its staff, a lot of politics happen behind the scene. After all, Judges and Prosecutors are Primarily humans with different political affiliations.
Mindful of the immutable nature of ideals of international Criminal Justice, its acceptance is a dynamic process which can change over time. Under this theory, a diehard supporter of International criminal justice may, from time to time, lower its commitments or even turn against it based on individual choices.
Thus, being a party the Rome statute is a State’s rational choice built on various dynamics, be it domestic or international. Individually, a state might sign or withdraw its signature based on its own political interests or a just shift in its perception of international court. Internationally, a state’s level of acceptance may be diminished by the fact that its mere membership to the Rome Statute undercuts its ability to fulfill its other international obligations. South Africa’s decision to withdraw from the International Criminal Court was motivated by the need to uphold its other international obligations, especially the obligations emanating from its African Union(AU) Membership.
The Winds of narratives and their impact on ICC perceptions.
One of the greatest impediment to ICC’s acceptance is the discursive narratives on its work, mainly dominated by perceptual divides of all kinds which hampered the prospects of objectively dealing with the problem without being influenced or dissuaded.
In Africa, the impact of narratives was observed in various propagations, which not only tarnished the image of the court, but also created a sense of hesitation in State which are bound by the Statute. It is unclear whether such propagations represent governmental perceptions or the general populace because, whilst most governments seemed concerned by the ICC behavior, their civil society never cease to show their support to the Court.
In addition, majority of narratives on the relationship between Africa and the ICC led to an understanding that their membership was, at some level, forceful, thus a challenge to their level of acceptance. For instance, a fair assessment of the rate at which African states ratified the Rome Statute confirms the narrative that ratifications in Africa were politically and economically motivated. While some African States found in the ratification of the Rome Statute an opportunity to silence or defeat their domestic political opponents, others were pressurized by their donor states, who promised increased foreign development aid.
Finally, Narratives have contributed in the expansion of political divide between the ICC hard-line supporters and other anti- ICC governments. This confrontation has further widen the acceptance gap and has created a situation where oppressors are portrayed as victims or targets of western propaganda. From this, these leaders have gained Political support which in return, created a situation where conflict continue flourish with impunity while millions of lives in their countries continue to perish.
Prospects for Change
International criminal justice remain irrefutably relevant, legitimate and self evident especially now that global Insecurity and democratic crisis are on the rise. However, a shift in approach is needed on the manner in which International criminal court functions. Put otherwise, an introspective assessment should be conducted by the court on its work and much focus should be put on the Court’s relevance in the today’s world and the values on which it is premised.
Enhancing State Acceptance of International Criminal justice should precede any undertaking relating to its advancement. This is so because, levels of acceptance indicates state’s levels of submission to the ideals, and thus reduced risks of external criticism. For this reason, anything in this direction should be supported, even if it means renegotiation of basic principles on which international Criminal Justice is premised.
In addition, the ICC should enhance clarity and transparence in its work, to ensure that its operations and governance are funded on sound and fair principles and criteria. Transparence sustains legitimacy and thus a boost to the court’s acceptance.
Finally, complementarity as a bedrock of ICC functioning should be revisited. In fifteen (15) years of its functioning, the ICC is alleged not to have done enough to ensure readiness of National courts to handle matters on their own. As a results, State parties have always looked up to the ICC at any occurrence, advancing lack of capacity. Reliance on the ICC has at its turn, overloaded cases at the Hague based Court. If the Rome Statute had focused on Complementarity advancement, majority of national courts would have strengthened their capacity, and instead of having cases flowing in to The Hague, Universal jurisdiction would have been a better alternative in ensuring that criminals do not evade justice.
And there is no shortcut, domesticating international criminal law is the most effective option to ensure that the expectation of international criminal justice are met. Domestic application of International law is cost effective and result based. When built on higher levels of acceptance, it becomes an effective tool to affirm that international criminal Justice is possible and feasible.
*Reader in international Politics and Criminal Justice, Kigali Rwanda