The International Criminal Court is withering. The greatest threat to the untrammeled power of dictators and autocrats is being eroded as member states withdraw from the court’s jurisdiction. Those governments justify their decisions by charging that the court is biased and only prosecutes offenders from small countries. Their real complaint is that it presents a very real possibility of punishment to leaders who believe that they should go unchallenged. In other words, the ICC is doing its job and they do not like it.
The idea of an international court that would hold politicians accountable for their crimes against humanity and the peace has been floated since the end of World War I. The closest the world came to such an institution followed the conclusion of World War II when ad hoc tribunals in Tokyo and Nuremberg were convened to try the leaders of the Japanese imperial government and the Nazis, respectively, who prosecuted that war.
Cognizant that such efforts are invariably tainted by charges of victor’s justice, diplomats in the 1990s began negotiations to establish a permanent court that would put world leaders on notice that they could not act with impunity and that crimes they commit against their own peoples and those of other nations would be punished. In 1996, the Rome treaty establishing the ICC was signed by 120 countries, with seven voting against and 21 abstaining. When the requisite 60 countries ratified the treaty, the ICC was established in 2002.
Unfortunately, the idea of such a court was always brighter than the reality. Key countries such as the United States and China refused to sign up for the court. The U.S. rejection was especially galling since the court had been designed to minimize Washington’s objections: in particular, the ICC would only have jurisdiction if a country’s own tribunals were unwilling or unable to prosecute. In theory, that would never apply to the U.S., which has an independent judiciary, but U.S. leadership was unwilling to take that chance.
Since it went into business, the ICC has issued 39 indictments and concluded proceedings against 17 individuals, three of whom have been convicted. Of the remaining 14 cases, one was acquitted, six had their charges dismissed, two had charges withdrawn, one’s case was declared inadmissible and four died before trial. The court is investigating 10 other conflict situations.
A conviction rate of just 17.5 percent would not seem high enough to strike fear in the heart of tyrants, but it is enough to prompt a number of countries to rethink their readiness to submit to the court’s jurisdiction. Last month, three African countries — Burundi, Gambia and South Africa — have withdrawn from the court, arguing that the court was biased against Africa. Last week, Russia announced that it too would be pulling out of the court, claiming that “it failed to meet the expectations to become a truly independent, authoritative international tribunal.” A day later, Philippines President Rodrigo Duterte said that he too would follow Russia’s example, calling the court “useless,” where “only small [countries] like us are battered.”
Ironically, the decisions to withdraw testify to the court’s success. The African countries are correct that the 39 people indicted by the court have been African, but investigations in various forms are or have been underway into situations in Afghanistan, Colombia, Georgia, Guinea, Honduras, Iraq, South Korea, the United Kingdom and Venezuela as well as several countries in Africa.
While Russia charged that the court was wasteful, spending $1 billion to produce just four sentences, Moscow’s real complaint stems from a recent ICC report that concluded that the 2014 annexation of Crimea was not a voluntary merger as Russia insists, but an “international armed conflict between Ukraine and the Russian Federation,” which resulted in “an on-going state of occupation” by Russian forces. For its part, Duterte’s rejection of the court followed a claim by an ICC prosecutor that the Manila government’s extrajudicial killings in the war against drugs — the body count is reckoned to exceed 3,000 people — might confer jurisdiction on the court.
While any shrinkage in the number of countries subject to the court’s jurisdiction is worrisome, the transparent nature of these objections does render them less potent. More troubling is South Africa’s withdrawal from the court. Since the end of apartheid, South Africa, guided first by Nelson Mandela and then his spirit, has put morality at the center of its foreign policy. It stood behind the ICC as a vehicle to ensure justice for all Africans and to curb the abuses of power that typified the reign of too many African leaders. Sadly, under President Jacob Zuma, South Africa has lost its moral authority, a slide that is typified by the decision to leave the ICC.
The tragedy is that the ICC seems to be working. Some of the worst abuses have been attenuated as leaders around the world acknowledge the potential jeopardy that they can face. Of course, the court is not perfect but it has proven able to make a difference. It must not be allowed to fail.