Has the International Criminal Court failed?

Opening Statement - Jamie

The International Criminal Court has failed. It has failed in its ultimate goal of ending impunity for war crimes and crimes against humanity. It has failed in its task of prosecuting the worst international criminals effectively and expeditiously. It has failed to dissuade more violent and ruthless people from committing atrocities. It has failed to foster judicial reform where it has been most desperately needed. It has failed to fulfil its purpose as a court of last resort and assist countries in prosecuting war criminals. Worst of all, it has failed to inspire hope that there can be justice for all. 

Twelve years of experience later, it is high time to admit that the ICC experiment is not working.

The ICC's institutional arrangement is weak and in need of serious reform. A domestic court should be independent and impartial, subject to the political whims of none. But this is not the case with the ICC. The procedure may be initiated either by a state itself, by the Prosecutor or due to the UN’s referral. The latter though is problematic to say the least. There are many individuals in non-signatory States that have engaged in horrific acts of state-sponsored violence and atrocities. But since the ICC has subordinated itself to the Security Council, and therefore the accursed P5 veto, there will be no justice. A state and its officials can practically guarantee themselves impunity by being allies or strategic partners of the Great Powers. A friendless state like Libya gets referred by Security Council resolution, but attempts to refer a non-signatory state like Syria to the ICC will be blocked by Russia and China. So despite a convincing body of evidence that some serious atrocities occurred during the Syrian Civil War, the worst Syrian offenders will be granted effective immunity from prosecution because the Security Council can tie the ICC's hands. 

Considering that the ICC must work in tandem with its member states, being entirely reliant on their assistance in the arrest or extradition of criminals, the Court has not exactly cultivated a strong network of friends and supporters among non-Western aligned states. As a result of the botched prosecutions and its African focus, the ICC has failed to gather support from several African leaders, most of them blaming it for being a modern day tool of colonial power. The ICC has failed to play the diplomatic game properly, it has squandered its goodwill and, as a result, its friends have not backed it up when it needed the most.

Impunity for the worst crimes is in desperate need of being ceased and yet the ICC is doing nothing in this regard. A permanent, global, centralised court might simply be too distant, too slow and too weak to be effective. During its twelve years of existence, the ICC has only completed two cases, neither of them free from accusations of controversial procedures and questionable judicial standards. One might argue that these are simply teething problems and that the ICC is still following its evolution course, but yet there is still doubt upon what actual good the ICC has ever done. The pessimist in me thinks that these early problems are more than mere teething, suggesting instead a more severe dysfunction that would eventually deprive International Criminal Law of any voice in the legal arena. It is therefore my deep seated belief that it is high time to admit that the ICC is not effective and that alternatives must be sought.  

Opening Statement - Maria

The role of a court, be it in national or international law, is to asses the evidence presented against and in defence of an accused, to decide whether the person is guilty or not. A court whose role is to sentence is neither a fair judicial mechanism, nor a system of applying law. As its purpose is strictly limited to conviction, one would wonder which the judges’, prosecutors’, and counsellors’ role would eventually be. 

The International Tribunal for the former Yugoslavia (ICTY) is considered to be one of the most successful courts, playing an essential role in the development of the International Criminal Law as well. Yet its first judgment was delivered four years after the creation of the court, with its second one a year later, acquitting one of the three accused in the respective trial. I believe that in analyzing whether the ICC has been successful or not, one must look at its mechanism, the quality and thoroughness of the prosecutors’ office activities, the judges’ decisions, the internal procedures and so forth. As the Court and the system do have their flaws, efforts should rather be directed towards their improvement instead of their aspersion. 

In a joint letter sent by the presidents of the ICTY and of the International Tribunal for Rwanda (ICTR) to the ICC’s President Judge Song on the occasion of the Day of International Criminal Justice (July 17th), Presidents Meron and Joensen referred to the international courts as having ‘helped to transform the political and legal landscape’, stressing that ‘calling senior political and military leaders to account for their acts before courts of law is increasingly the expectation, rather than the exception’. 

The ICC represents the first permanent international criminal court, with jurisdiction upon the most heinous crimes, being a complement to national jurisdictions. The Court’s jurisdiction is however limited to the states party to the Rome Statute or otherwise dependent on a deferral by the Security Council. States’ cooperation is therefore a mandatory prerequisite in guaranteeing the Court’s effectiveness in delivering international criminal justice.

There is no doubt that the ideal scenario would imply the national jurisdictions’ competence and willingness to deliver justice through fair and equitable trials. The matter of improving national systems is often a minor challenge for a state in its development. The international arena should strive to assist states in developing and improving their national legal systems, as bringing war criminals to justice and justice to victims cannot be delayed until all states reach that certain point of development. 

A permanent court with jurisdiction on all States can only be created through a Security Council Resolution. Considering, on one hand, that three of the Council’s Permanent Members (USA, Russia and China) have not ratified the Rome Statute, and, on the other hand, Russia’s latest alleged violations of International Humanitarian Law, the idea of such a permanent court with extensive jurisdiction seems highly unlikely. 

In conclusion, I fervently agree that a lot could and should be done to improve the ICC’s functioning. To ensure a wider impact of the Court’s activities, states need to ratify the Rome treaty and those already party, need to fully cooperate. Finally, I disagree with assessing the court’s success through the number of its convictions and support the idea of the ICC having contributed to international justice. It’s still a young court and I believe it’s on the right way. 

Rebuttal - Jamie

Although I admit that the ICC should be subject to improvement, I neither agree that there are no real better alternatives, nor do I think that we would erase all progress by doing so. With all due respect to my opponent’s arguments, some of them reminded me of what the ICC is on paper, which does not always represent what it actually is. 

Firstly, let us address the issue of just what we are basing our critique upon. As Maria has pointed out, it took the ICTY about four years to conclude a judgement. However, a cursory glance at the ICTY concluded cases list reveals that the court managed to get through 61 cases. A similar number shall be encountered in the ICC’s activity, with about 51 cases concluded. If we are going to argue that there are few better alternatives, then what basis do we argue this upon? It is quite clear that a centralized institution is incapable of dealing with a weighty case load in a similar manner to a specialized court or tribunal. The ICC is considerably behind in judicial expediency, despite its limited case load.  

Maria points out that the role of a court is not limited to conviction. Indeed, but the ICC is rather a special court. Given the role of the Prosecutor and the importance of going after the worst offenders, there should be a high probability of conviction for indicted fellows, otherwise there would be no point in initiating proceedings. Thus, the quality of the judges, the prosecution and the counsels does depend on the number of convictions. There are a lot of people deserving to be prosecuted and convicted by the ICC and the extremely low number just reveals the incompetence.

Secondly, I do not think that reforming the court would annul the work done so far and I doubt that this would be an unfortunate outcome. If we were to think what we have truly gained in the past 12 years, I think that would actually be how not to do it. Coming to accept the hard truth that the ICC is failing, then we will at least learn from that failure and hopefully build a more successful system for prosecuting the worst crimes.

Alternatives need to be sought. I tend to question my opponent’s claim that national systems are best for international crimes, as if a court that truly disregards official capacity and prosecutes leaders is wanted, then it cannot be left up to the national court systems. Instead, attention should be paid to past attempts like the Nuremberg Trials, the ICTR, and the ICTY. These have shown that specialized, decentralized courts can work far better than the ICC. Why not continue with the model, which has proven itself to be far more successful? If we have lost the ability to set up further such specialized courts because of the ICC’s existence, then the ICC is not just failing, but blocking justice. 

So the ICC rates badly in comparison to similar courts, it cannot reliably gain convictions, and it may be a block to superior alternatives. We must eventually ask ourselves not only if ICC was indeed a gain, but as well if it was not rather a loss.

Rebuttal - Maria

Arguing that the ICC has failed might seem a little too bold. Though I completely agree with my opponent’s claim that the ICC’s mechanism needs improvement, efforts must be directed towards its improvement and not dissolution. 

My opponent argues that the Court is neither independent, nor impartial. On the contrary, the ICC has not subordinated itself to the Security Council, mainly because its jurisdiction does not depend entirely on the aforementioned body. As Jamie points out, the prosecutor has the power to commence an investigation, without referral from states or from the Council. This power is limited to those states that are parties to the Statute, therefore the Prosecutor could not have started an investigation in Syria without either Syria’s or the Council’s referral. I do believe that the Council’s decisional system needs improvement when it comes to referrals to the ICC. For example, the prosecutor should have the power to submit a proposal for referral to the Council; the latter, after consulting the Prosecutor, should adopt a generally valid list of criteria based on which decisions on referrals would be taken. The Council would still have the power to reject such a proposal, but its political accountability would be more evident. Such an important decision that might determine the infringement of a state’s sovereignty should not be at the authority of the Prosecutor.  

Discussions on any international court cannot be separated from politics. International Law and politics are intertwined and interdependent. International Law is made by the states and they are also the ones that need to abide by it. However, no international mechanism that could infringe a state’s sovereignty can be brought into existence without the explicit consent of that state. The ICC is the creation of a treaty signed by states and only those who committed themselves to the Rome Treaty are bound by it. Thinking otherwise would be like deploring that the European Court of Justice does not settle disputes involving Asian states. 

Would an ICC with global jurisdiction be preferable? Of course. My opponent is right when arguing that a lot more effort and perhaps a different approach need to be taken by the ICC in determining more states to ratify the Rome Treaty. While such an ideal global court could also be achieved through a Security Council resolution, I believe politics makes this path unlikely in the near future. 

In conclusion, I agree improvements need to be done in the way ICC works, to its administrative mechanisms, the procedure, delays, and so forth, as well as in what its diplomatic approach to new potential parties of the Rome Statute is concerned. Where I disagree fundamentally is that the ICC has failed entirely and that we would be better without it. Yes, cases have taken a long time, but we should not lose sight of the nature of crimes the court tackles; crimes against humanity, war crimes and genocide are not simple affairs, therefore expecting the ICC to decide on such intense and complex matters in a short time does not seem adequate. What should be borne in mind is that the Court has been dealing with several important situations of core crimes and it thus ensures justice is delivered to victims and the perpetrators are confronted with their acts. If we do not opt for improving the way the ICC works, we are left with two choices: no justice at all or waiting for a court with global jurisdiction, which is by no means foreseeable in the near future. It is thus better to take a step towards impunity, rather than none. 

Conclusions - Jamie

Having weighed the arguments, one may be eager to come to a conclusion.   Drawing it at this point would be counterproductive though to the issue at hand:  figuring out where to go next. For the above given reasons, I believe that the ICC needs to be reformed. If it cannot be reformed, then sadly it has to be abolished and alternative means of securing International Criminal Justice must be sought.

My opponent brings some good responses to the table and states her arguments well. It is as she said: International Law and International Politics are intertwined and interdependent, but my main point still stands: the ICC is bad at law and even worse at politics. Treaty observance issues abound and the signatories are doing as little as possible to uphold the Rome Statute. Though I do not underestimate the ICC’s efforts of   ending impunity for the worst crimes and criminals, the international community should push for alternatives, perhaps more specialized courts and tribunals. After 12 years of performance, the ICC is not living up to its promise and nor is its future very promising. 

Conclusions - Maria

According to the Statute, the Pre-Trial Chamber must find reasonable basis to authorise an investigation. For an arrest warrant to be delivered, reasonable grounds to believe the individual committed the crime he or she is accused of should exist; for the charges to be confirmed, the grounds need to be substantial, whereas the Chamber needs to be convinced beyond reasonable doubt in order for the accused to be sentenced. 

Accepting the argument that there should be a high probability of conviction does not only disregard the statutory provisions, but it completely ignores the principle of presumption of innocence. Suggesting that the number of convictions reflects the judges’ character is preposterous – claiming that a judge is bad because he or she does not convict people is against the very idea of justice. 

Regarding the question of why not continuing with the ICTY/ICTR model, the feedback cannot be but negative. The Security Council will not grant global jurisdiction to a Court when its members will surely be investigated. The Council should be reformed and a universal Court would be best; but this is currently unrealistic. Denying the possibility of justice over heinous crimes in 122 countries, instead of improving the system, would be a failure of the international scene. 

What I am advocating for is a reform that focuses on improving the working of the Prosecutor’s office and developing diplomatic means to increase the number of parties.