It is time ICC rose to the challenge

The International Criminal Court building at The Hague. PHOTO | FILE | AFP

What you need to know:

  • Fifteen ICC arrest warrants are unenforced amid damaging haggling among members over restricting its budget.

  • Facing possible ICC investigations, Burundi and the Philippines announced their withdrawal; the former formally left.

  • The ICC has also attracted predictable opposition from leaders with a reason to fear accountability.

Four years ago, Human Rights Watch and Amnesty International — and hundreds of others — urged the United Nations Security Council to send atrocity crimes committed in Syria to the International Criminal Court (ICC) for prosecution.

By then, the conflict had killed 100,000 people, mainly civilians.

Today, the death toll is at over half a million amid violations and unlawful killings.

Yet the ICC is unable to act. Russia’s veto has blocked a path to justice for the victims. Other UNSC members, including the United States, have used, or threatened to use, their veto on other atrocity crimes.

This sad situation is a far cry from the summer of 1998, when many governments, with the support of non-governmental organisations, created the ICC in Rome. Many of the major powers, including the US, opposed it.

GENOCIDE

With a post-Cold War faith in multilateralism and a resolve driven by genocide in Rwanda and the former Yugoslavia, the governments acted on longstanding unrealised ambitions for a permanent global criminal court.

The Rome Statute, its founding document, was adopted on July 17 and the court set up four years later.

The court of last resort for the most serious of international crimes — including genocide, war crimes and crimes against humanity — it can act in all the 123 signatory states and, where a state is not a member, as in Syria, after a “referral” by the government or the UNSC.

These and other limits notwithstanding, the court’s creation was an extraordinary achievement, firmly establishing a marker on the side of justice and the protection of human rights.

The court has opened formal investigations in 10 countries. But with mass atrocities in many parts of the world, it is moving away from its all-Africa focus. The prosecutor’s request to open an investigation in Afghanistan would put in reach Americans accused of war crimes there.

UNTOUCHABLE ACTORS

That is likely to provoke fierce opposition from the Trump administration. But it would demonstrate the potential of the ICC to investigate previously “untouchable actors” and to demonstrate that no one is above the law, puncturing a damaging, if misleading, narrative that the court targets only African leaders.

Similarly, Palestine’s ratification and recent request to the ICC prosecutor to investigate war crimes there brings into the court’s sights a decades-long situation of near-complete impunity by both Israeli and Palestinian forces.

Yet, parallel with this acute need, the court faces steep challenges. Some of these were to be expected as it becomes more effective and investigates more powerful states. But that is not a sufficient explanation.

The court needs to improve its performance. It has been plagued by lengthy proceedings, insufficient investigations in its earliest cases and case selection strategies that don’t always reflect what is most meaningful to victims.

CLEAR PRIORITIES

The prosecutor’s office should articulate clear priorities within and among the countries it addresses — and live up to them.

The burden of bolstering the ICC also rests with member states. Like other human rights-protecting institutions, it has struggled with a lack of political will among its ostensible government supporters, especially when on arresting suspects.

Fifteen ICC arrest warrants are unenforced amid damaging haggling among members over restricting its budget.

The ICC has also attracted predictable opposition from leaders with a reason to fear accountability.

Facing possible ICC investigations, Burundi and the Philippines announced their withdrawal; the former formally left.

But as the now-open Burundi investigation shows, withdrawal has little legal effect on the court’s ability to pursue past crimes.

POST-ELECTION VIOLENCE

When cases were pending before the ICC against the country’s president and deputy president over the 2007/2008 post-election violence, Kenya attempted to orchestrate a mass pullout by African countries.

But it failed in the face of strong opposition from other African governments and civil society.

Member states that have complained about a perceived selectivity should support the court by building pressure to execute outstanding arrest warrants and ensuring that it has the necessary funds to do its job.

At stake is not just the success of an institution. The Rome Statute “system” is a network of the national courts of ICC members.

TREATY

The accountability embedded in the treaty serves as a catalyst for other justice efforts, such as a UN-backed investigation mechanism set up for Syria to circumvent the Russian UNSC veto.

On the 20th anniversary of the ICC treaty, it is time to renew commitment to this landmark institution and for more states to join.

These are the dangerous times that the court’s founders anticipated, warning in the treaty that the “delicate mosaic (of humanity’s common bonds) may be shattered at any time”.

They believed the ICC would ensure the most basic values — equality, dignity and justice — are protected by law. It is critical not to turn back from this goal.

Mr Roth is the executive director of Human Rights Watch. Mr Shetty is a former secretary-general of Amnesty International. Twitter: @KenRoth and @SalilShetty