Russia and the ICC or Putin and the ICC?

November 24th, 2019 No comments

Hello everyone,

Sorry for the last post, I have been sick with stomach flu this week.

I was thinking about what to write for my last blog and saw ep76’s post on the “Critic Relationship between the ICC and China” and thought I should do one for Russia!

As we know, besides the US, China and Russia are strong dissenter states to the ICC. Similar to the US, Russia never introduced the Rome Statute to the Russian legal system, despite signing the treaty on 13 September 2000 and the longstanding President Putin withdraws from the ICC in 2016.(1) The day before Russia announced their withdrawal, the Court’s lead prosecutor Fatou Bensouda released a document that indicated an international armed conflict in Russia’s annexation of Crimea. Considering that Russia have been historically opposed to the idea of interventionist politics, their sudden withdrawal isn’t surprising but besides the situation in Crimea, I think Russia’s heavy military involvement in Syria triggered Putin to decide to withdraw from the ICC when it had a chance. Russia criticised the Court by saying that it is a tool of ‘western imperialism’ and that what the west and Kyiv saying is not true. It was good timing for Russia to accuse the ICC as the Gambia, Burundi and South Africa also announced their withdrawal for the Court for targeting African states.

I found an interesting article by a Russian international lawyer, Bakhitiyar Tuzmukhamedov (2019), who was a judge at the ICTR and he argues that despite the Russia’s official disengagement from the ICC, Russian academic community is interested and in support of the international criminal law. Unlike other western scholars, he pointed out that Putin ordered the Ministry of Justice to establish an inter-agency group to work toward on harmonising the Russian legal system with the Rome Statute in 2013. After two years of working toward finalising the legislative draft, the President did not implement it saying that it needs further work and never revisited it. I found Tuzmukhamedov’s work interesting because after delineating Russia’s opposing attitude toward the ICC, he dedicated latter half of his work on to what extent the Russian academic community considers international criminal justice important despite Russia’s strong opposition as a state.

This is similar to the situation in the US as, despite the government’s strong opposing position, there are numerous NGOs, academic and lawyers who follow the work of the ICC and contribute to the cause of international criminal justice. One funny thing I noticed in the literature on the US relationship with the ICC and Russia’s relationship with the Court is that whilst the US had four regimes that had similar but their own ways of dealing with the Court, the literature on Russia only focuses and mentions Putin’s regime. Did you know that there was a president named Medvedev who served Russia from 2008 to 2012?

Anyways, going back to Russia’s relationship with the ICC, under our Week 3’s supplemental readings, Dr Bower suggested Tuzmukhamedov’s work published in 2005 that focuses on the Russian Constitutional Problems in ratifying the Rome Statute. He argues that legally speaking, it is possible to harmonize the Russian Constitution with the ICC Statute; hence, ratification is a matter of ‘political will’ of Putin, which he believes that it won’t happen anytime soon.

Initially, the Putin administration demonstrated uncertainty toward the Court. For example, when the ICC Prosecutor released an arrest warrant for Al Bashir, Russia raised a concern on the “immunity of the head of state in office” like other African states did during the time and highlighted the importance of balance between international justice and peaceful resolution (Tuzmukhamedov, 2019: 4). In regard to the situation in Libya, Tuzmukhamedov (2019) states that Russia only voted for the referral to see how the OTP deal with the Gaddafi regime instead of voting in support for the international criminal justice. Russia’s uncertain attitude toward the Court changing into strong opposition when it vetoed the Security Council’s vote to refer Syria to the ICC along with China.(2)

Birdsall (2015) examines the relationship between the R2P (Responsibility to Protect) and the ICC and mentions how Russia and China’s opposing position to practice R2P is hindering “the ICC’s ability to intervene in the conflict with judicial means”. Although the US, Russia and China are known as the strong opposition to the ICC, it is interesting that the way they are against the Court is different; Russia and China have similar reasons and ways of opposing compared to the US. In fact, unless they are directly targeted, Russia and China sits back and let the US be the loud opposing voice of the Court. If you look at the Russian spokesperson’s statements it is easy to find Russia ‘sharing concerns’ along with other African states or other states in general when speaking about the ICC. However, as we know, when the ICC directly targeted Russia in 2016, it heavily criticised the Court and withdraw.

Thank you for reading!

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The USA: The Big Bad Guy

November 24th, 2019 No comments

I couldn’t help but feel that something was missing from the conversation surrounding United States opposition to the ICC. Since the Rome Statute was written, the US has been a figurehead for opposition to the Court. There seems to be a narrative that the US and other states only refuse to join the ICC because they desire to perpetrate violence with impunity and would like to continue doing so. In scholarly literature, dissatisfaction with the ICC is lamented as declining respect for international norms. In this way, resistance to the authority of the ICC is equated to resistance to human rights abusers being brought to justice overall. I don’t think it’s that simple. There are a diversity of opinions in the US on the ICC, but on the whole, I don’t believe that the US refuses to join the ICC out of a secret desire to commit war crimes in the future. It is possible to be critical of the Court and to refuse to become a state party without disagreeing with its core mission and values. Then again, there are those who truly do believe that no one should ever stand in the way of the United States and oppose the ICC as such. Unfortunately, these are the voices that are most often heard.

John Bolton and others in the Bush and Trump administrations have made it too easy to characterize the US opposition to the Court in simple terms: The US doesn’t abide by international norms and wants to derail all projects revolving around international cooperation unless they benefit the United States. This seems to be the genuinely held view of several administration officials. If I have one message in this blog post it is that the US is not a monolith as much as it seems to be one, and the reasons for opposing the ICC range significantly and vary between administrations and individuals. The United States suffers from the fundamental attribution error; from the outside, it is hard to reconcile disapproval of the ICC while at the same time supporting R2P and international criminal tribunals, while on the inside, it is clear that different individuals have different foreign policy priorities.  It’s very easy to see the US as the ‘big bad guy,’ but in truth, the US is highly divided and fragmented.

A major worry of the United States is that the Court will be unfairly and unjustly used by some actor to attack and delegitimize the US and its allies. After all, what real checks and balances exist to keep the Court from becoming overly powerful? If the idea of the Court is that no one is below it, then the Chief Prosecutor is the most powerful person in the world. The Court is a political actor and does not distribute justice evenly due to its limited capabilities and resources, so it is not inconceivable that bias will develop. There is a fundamental contradiction embedded in the Court: it operates on an individual level and prosecutes individuals, but it exists with the support of states which agree to become parties. Joining the court is an issue of sovereignty, and it blurs the line between foreign policy and domestic politics. From certain perspectives, becoming a state party to the ICC is to admit that one’s domestic judicial institutions are inadequate, as the Court is only meant to take cases where a state is unable to provide a fair trial. The United States is concerned with these sorts of issues: What guarantee is there that the Court will remain unbiased and committed to its core objectives in perpetuity? Why does the ICC need to be the be-all and end-all of international justice? Above all, who are the individuals in control of the Court and what are their objectives?

In its current state, the ICC arrests very few people and sentences even fewer. As far as I know, the people who work at the ICC are truly committed to ending impunity for crimes against humanity and other atrocity crimes without attempting to weaponize the Court for some political agenda. There are plenty of genuine concerns voiced by policy makers in the United States regarding the ICC, but given the current scope and scale of the institution, I don’t think that it is realistic that the ICC would risk its own legitimacy to go after the United States, even if it were a state party.

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‘The Devil Next Door’: Why the ICC is needed for International Justice.

November 22nd, 2019 2 comments

Hi all,  

To finish up my last blog of the semester on a high, so I want to give you all two important elements that show why the International Criminal Court (ICC) is imperative to the development of international justice. The context of this week’s blog is heavily inspired from the Netflix documentary series ‘The Devil Next Door’ which takes you through the case of John Demjanjuk, a Nazi war criminal who spent years hiding in Cleveland, Ohio.   

The show begins in the 1970’s with John Demjanjuk, a retired autoworker, was accused of being a Trawniki man (Eastern European volunteers, recruited from Nazi prisoner of war camps). Not only this, the man he was identified as being was ‘Ivan the Terrible’, a notorious and sadistic Ukrainian guard who had served at the Treblinka death camp. In 1981, he loses his U.S citizenship and is extradited to Israel where he was involved in a highly publicised trial. He was found guilty in 1988 and sentenced to death, but this was overruled by the supreme court during his appeal based on post-Cold War documents identifying a different guard as ‘Ivan the Terrible’.  For someone to be guilty then it must be beyond reasonable doubt that they are innocent. So, in the case of Demjanjuk, the evidence was too conflict that they couldn’t confirm if he was ‘Ivan the Terrible’ but there was no doubt that he did participate in the Holocaust.  With this information, they were able to identify his name in six different concentration camps and he was found guilty as an accessory to the murder of over 28,000 people. However, his lawyer put in an appeal after this conviction and Demjanjuk died during the appeal so to this day he is still classified as an innocent man.  

First, the impartiality of the judges is vital to ensuring the furthering of international justice. During the trial, Demjanjuk was represented by two lawyers, American attorney Mark J O’Connor who selected the case with very little criminal prosecution experience. During the series you see his attempts to pick apart the evidence but with little success so his co-counsel, Israeli trial lawyer Yoram Sheftel takes over. Sheftel wanted to push his argument and prove that Demjanjuk was not the man everyone believed, but sometimes when he asked probing questions, the judges had to ask him to show more respect. We are also shown clips in episode 3 of the personal lives of the lawyers in the teams. Sheftel was greatly hated across Israel for defending someone the country thought was guilty. For example, one of the lawyers, Dov Eitan, taking over from Mark O’Connor committed suicide in the lead up to the appeal after receiving so many threats from the public. Then while Sheftel attend the funeral for Eitan, acid was thrown in Sheftel’s face, removing 95% of sight in one eye. Nevertheless, the independence of the court from the conflict being analysed is vital to achieving true justice. Therefore, by having the court away from the country linked to the conflict being investigated as well as the judges with differing nationality, this should ensure that the trial process is as independent and just as it can be.  

The second point is the ability to allow truth-telling processes. By the time Demjanjuk was first brought to trial in Israel, it had been over 30 years since the end of Word War Two. However, the ability for the victims to recount their stories was incredibly important to the shaping of the trial. As referenced before, some of the judges were very protective over how the victims were questioned by the defence team. Many cried on the stand, described horrifying acts such as the ‘Ivan the Terrible’ cutting the flesh off people as they walked into the gas chamber. This was more than just prosecuting a guilty man or mistake identity. This was heavily to do with validating the truth for these victims. When they were told that Demjanjuk was not guilty, many interpreted this as the court denying the victims their truth by saying their accounts were ‘beyond reasonable doubt’. The evidence that changed their mind came from the accounts of Ukranian guards who gave their testimonies before being executed 20 years previously. This was another insult to the survivors because it was like the court ‘sided’ or ‘elevated’ the accounts presented by the men who were responsible for the murder of the survivor’s families.  

I personally believe that this shows the intricacies of justice and the important of an independent, impartial court. While the Israel and German courts did all that the law could enable at the time, if they had specialised, protected lawyers with the skills to gather testimonies with respect to the victims then this is an important step towards international justice. While it is easy to critique the court for its bias, lack of funding, lack of power etc, but I think this documentary shows how narrow those critiques are when looking at previous cases like Demjanjuk.  

Extra sources if this case is interesting to you:

Glenn Sharfman (2000) The quest for justice: The reaction of the UkrainianAmerican community to the John Demjanjuk trials, Journal of Genocide Research, 2:1, 65-87, DOI: 10.1080/146235200112418 

Del Pizzo, L. J. (1995). Not guilty–but not innocent: An analysis of the acquittal of john demjanjuk and its impact on the futire of nazi war crimes trials. Boston College International and Comparative Law Review, 18(1), 137-178. 

Marouf Hasian Jr. (2003) In Search of “Ivan the Terrible”: John Demjanjuk and the Judicial Use of Ironic Argumentation, Argumentation and Advocacy, 39:4, 231-253, DOI: 10.1080/00028533.2003.11821590 

 

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Should the ICC just admit that it is a political actor?

November 22nd, 2019 2 comments

Should the ICC just admit that it is a political actor?

 

Hey Guys,

Throughout the semester we have talked a lot about the dynamic between the ICC and politics, and the more I’ve thought about it the more it seems silly to me that the Court tries to pretend that it is not a political actor.

As much as any court should do it’s best to remain impartial and a-political, given the structure of the ICC, in particular the fact that it decides what cases to investigate or not, it seems that by design it will never be one hundred per cent impartial. While the court should be driven by its goal of justice, it unfortunately has many limitations placed upon that goal, such as jurisdictional limitations, financial limitations, and of course political limitations. All of these factors come together to determine which cases the prosecutor will pursue, and which it will ignore. This inherently is political because the decisions they are making are both influenced by politics and then go on to influence politics itself. As one author states, “ the Court is often prey to power politics which restrains its agency.” (https://www.e-ir.info/2015/12/20/a-critical-analysis-of-the-relationship-between-democracy-and-corruption/)

Another author (https://www.opendemocracy.net/en/openglobalrights-openpage/law-and-politics-at-international-criminal-court/) argues that as a result of the Security Council’s ability to refer states for investigation even if they are not member states, and their ability to suspend investigations, the Court prioritizes politics over justice because it directly allows the permanent UNSC member states to exercise their power over the court. Personally I think this argument is weak because even if one state on the SC wanted to influence politics through the court it seems unlikely they would get all the states to agree. However, after everything I have learned about the Court over the course of this semester I think almost every aspect of the Court has the ability to become political. No matter how impartial the prosecutor tries to be, whenever they uses the power of proprio motu they influence politics, and the same goes for whenever they decide not to investigate.

 

If this is true then it makes me wonder if it would not just be better to admit the ICC is a political actor of sorts, and then at least they could be open and honest about the political factors that influence their decisions, which in my mind could potentially lead to a more just structure overall. For example if we look at the case of Israel and Palestine the Court has failed to act because to do so would mean that the court would have to decide if Palestine is a state or not, which is without a doubt a political decision. However, in not taking action and just shying away from the situation they are failing to, at the very least, evaluate the situation and see if justice needs to be upheld. If they have a duty to uphold justice then it seems they have a duty to investigate cases brought before them, regardless of the political impact of that investigation. By outwardly ignoring the political role of the court, it weakens the Court’s effectiveness in ensuring justice. If the court only goes after less politicized crimes, then the court is prioritizing politics over justice for victims.

By acknowledging the Court’s role as an international political actor there is a chance the Court would lose support as it would be seen as potentially less impartial. But on the flip side the court in my opinion will never be seen as a strong and independent institution if it fails to act when issues of politics come into play. Perhaps if the ICC admitted its role as a political actor it would be less hesitant to act in more politicized situations. I think the Court can no longer ignore its role as an influencer of politics, and the longer it does the more it will restrict the Court’s ability to truly act impartial. While it acknowledges the political aspects behind closed doors, it needs to be able to talk about them openly.

 

For the Court to fully flourish and become a powerful institution, it cannot be restricted by matters of politics. As Benson Chinedu Olugbuo from Open Democracy says, “it is the victims and survivors of international crimes that are denied justice and agency in the battle for supremacy between law and politics.”

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What is the US accomplishing through its open hostility towards the ICC?

November 22nd, 2019 1 comment

Throughout this module, I have been fascinated by the relationship between the United States and the ICC. On the one hand, the US is overall a strong proponent of international criminal justice and not only played a major role in the former tribunals in Nuremberg, Tokyo, Yugoslavia, and Rwanda, but also advanced the course of international humanitarianism more generally through their support for Responsibility to Protect (R2P) missions. On the other hand, the US has been a vocal opponent of the ICC, recently taking on an outright hostile attitude towards the institution and attempting to undermine its effectiveness and legitimacy. Among other things, the Trump administration has threatened to negotiate more Bilateral Immunity Agreements (BIAs), ban court officials from entering the United States, and revoke foreign aid to countries cooperating with the court (source). We discussed in tutorial some of the reasons behind the US’ opposition to the court, so in this blog post I want to explore what exactly the US might be trying to achieve through its current policy and whether it is likely to be successful. 

The first goal relates to protecting American citizens from prosecution. In justifying his visa-ban, Mr Pompeo said that: “We are determined to protect American and allied civilian personnel from living in fear of unjust prosecution for actions taken to defend our great nation”. The ban was threatened after the ICC considered launching an investigation into possible war crimes committed by US forces in Afghanistan. The ICC ultimately did not go ahead with the investigation, stating that the current circumstances “make the prospects for a successful investigation and prosecution extremely limited”. Based on this, the US strategy seems to be working. However, Alex Whiting of Harvard Law School notes that it is likely that “there is a bigger picture here”, and that the lack of cooperation from from both the Taliban and Afghanistan were likely more significant factors, pointing out that “the judges may have even considered the perception of caving to [US] threats a significant cost to the court and not a path they would otherwise take”. This is a very interesting point because it suggests that the US could actually be hurting its own position through its open hostility to the court. Adding to this is the possibility that US opposition to the court reassures other states that it is not simply an institution designed to project US power, thus potentially weakening the “neo-imperialist” critiques that have been raised against the ICC. 

Either way, the measures outlined by the Trump administration seem a bit excessive if their only goal was to protect a small number of American soldiers. After all, the US could have just refused to extradite their own citizens to the Hague, thereby effectively making them immune from the ICC. So, given that Americans are effectively protected from prosecution by the court, what is the Trump administration trying to accomplish?

One possibility is that the US is trying to destroy the ICC entirely. Former national security advisor John Bolton described his goal as letting the ICC “die on its own”. If the court is seen by the administration as a challenge to US hegemony, it is perhaps not surprising that Trump is attempting to take any measures that would reduce the effectiveness of the court. By expressing such open hostility, the government could be hoping that it will succeed in delegitimising the ICC and thereby make other countries less likely to cooperate with the court. 

However, if the Bush administration’s similar efforts are an example of this policy in action, it seems unlikely that Trump will be successful in his quest to destroy the court. Not only were many states hesitant to sign BIAs, but the Nethercutt amendment, which cut economic support to states that did not sign BIAs, was not renewed. Since then, the ICC has continued its operations and processed several cases successfully despite the lack of US support.

It remains to be seen whether the renewed US hostility to the court will strengthen its resolve and support from other countries, or if the US will be successful in damaging its effectiveness and legitimacy, and I’d be interested to hear your thoughts on how you think other countries will respond to the current US policy. One factor that does make this situation more worrying is that we seem to be witnessing an increasing number of countries around the world rejecting international institutions as effective solutions to international problems.

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Would a victim-centred justice approach within the ICC increase state cooperation?

November 22nd, 2019 4 comments

During the course of my dissertation research, I have had the pleasure of reading extensive thought-provoking articles. However, one which stood out to me was an article by Leila Ullrich titled: ‘Beyond the ‘Global–Local Divide: Local Intermediaries, Victims and the Justice Contestations of the International Criminal Court.’ This article highlighted points surrounding several ideas including; the disparities of the justice process in international courts (such as the ICC) vs. global courts; how the ICC is equipped to deal with some of the most important justice contestations; and how more attention needs to be focused on victims’ engagement in the justice process within the ICC.

Whilst the article presented many compelling ideas, one point which stood out to me was that many of the Court’s critics argue the ICC reflects an idea of ‘Western justice’. Through this narrow view, critics tend to argue that the ICC neglects the contextual nature of ‘justice’. For example, the way justice is perceived depends greatly on socially constructed factors such as local culture, personal beliefs, gender, and age. I would like to briefly note that disagree with the critics view in that the ICC reflects and idea of ‘Western justice’. However, this point resonated with me as I started to wonder how the structure of the ICC’s trial proceedings could be adjusted in an attempt to show that the Court was making a conscious effort to move away from a ‘Western’ notion of justice. Thus, consequently increasing state cooperation as a result.

Before continuing, it is important to briefly discuss state cooperation within the ICC. Indeed, on the International Criminal Courts website there is a short paragraph titled ‘Cooperation’. This highlights what we already know: the fact that the ICC does not have its own enforcement body such as a police force. Instead, it relies on the support and cooperation with countries, states’ parties’ and non-states’ parties across the globe. As students of IR4657 with such vastly differing views, there will inevitably  be an array of varying opinions on the extent to which the ICC relies on the support of states to function. However, I am sure we can all agree that in order to function and act effectively, the ICC has to rely on state cooperation. In addition to this, it could be argued that with greater state cooperation within the ICC, the ICC could have a more significant impact on international justice, increasing its legitimacy within the international arena as a result of this.

Returning back to Ullrich’s article, I considered the idea that if the ICC was to show an attempt to move focus away from ‘Western justice’, more states could be enticed to cooperate. This is due to the fact that states might put a defendant on trial within their own state in order to provide justice for their citizens, rather than leaving it within the hands of international judges who may not perceive ‘justice’ in the same way. An example of this can be seen with the case of Saif Gaddafi, a case which if you remember, Dr Bower brought to our attention during week 1. Gaddafi was detained by rebels. Both the ICC and the Libyan government were in agreement in their ruling to prosecute Gaddafi. However, the differing perceptions of ‘justice’ caused divisions as the Libyan government advocated the death penalty: a punishment which the ICC firmly positions itself against. Consequently, Libya did not cooperate with the ICC as they believed the death penalty was the only punishment suitable in delivering their perception of ‘justice’ to their citizens.

I would argue that if the ICC was to adopt a more victim-centred approach to justice – which places victims at the centre of the ICC’s justice project – states would be more likely to cooperate. This approach would give victims a voice within the trialling process, thus allowing them to depict their own perception of what ‘justice’ means to the ICC judges. This would address the problem of defendants receiving differing definitions of justice at a domestic court and the ICC as it increases communication between all actors involved.  As a result of this, the ICC’s legitimacy, as well as state cooperation within the international arena, would be improved. If states know that criminals are going to be tried with victim-centred justice structure, they may be more likely to cooperate with the ICC as the victim’s opinions would be considered within the trialling process, rather than subjecting them to  ‘Western justice’ as critics of the Court claim.

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Considering an Expanded Version of Complementarity

November 22nd, 2019 No comments

On November 14th, the ICC Pre-Trial Chamber approved the Office of the Prosecutor’s request to open an investigation into the situation in Bangladesh and Myanmar. The judges “accepted that there exists a reasonable basis to believe widespread and/or systematic acts of violence may have been committed that could qualify as crimes against humanity of deportation across the Myanmar-Bangladesh border” in addition to “persecution on the grounds of ethnicity and/or religion against the Rohingya population” (https://news.un.org/en/story/2019/11/1051451). The Pre-Trial Chamber authorized an investigation so long as it remains within the jurisdiction of the court, meaning the crime is allegedly committed at least in part in the Rome Statute State Party, Bangladesh, or any other territory that voluntarily accepts the jurisdiction. Myanmar has since publicly renounced the ICC’s investigation—because the state is not party to the Rome Statute it does not recognize the ICC’s jurisdiction and therefore claims the investigation is “not in accordance with international law” (https://www.aljazeera.com/news/2019/11/myanmar-rejects-icc-probe-alleged-crimes-rohingya-191115180754984.html).

On the 11th of November, Gambia referred the situation in Myanmar to the International Court of Justice on the grounds that the state had violated its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide. The ICJ is not a criminal court but a dispute mechanism within the UN that focuses on questions of international law, cases usually including disagreements over borders or international agreements. Philippe Sands, a leading expert on international courts, referred to it as the “ultimate guardian of the genocide convention”. The ICJ therefore is the appropriate vessel to deal with disputes among parties to the Genocide Convention. (https://www.aa.com.tr/en/analysis/opinion-global-wheel-of-justice-begins-to-turn-for-rohingya/1648048; https://www.nytimes.com/2019/11/11/world/asia/myanmar-rohingya-genocide.html)

That fact that the situation in Myanmar is now in front of two major international courts has me wondering whether the ICC should implement some kind of new complementarity principle in relation to other international courts or regional courts. As we know, the Rome Statute only mentions complementarity in terms of the domestic courts of states. However, if the court’s aim is to end impunity across the globe and if it’s success is measured, at least in part, in terms of how many situations of international crimes are addressed, it should be questioned whether it is redundant, and perhaps an unnecessary drain on resources, for the ICC to focus on cases that other international courts are also addressing. If not only the ICC and domestic courts, but also other international and regional courts are all working towards addressing atrocities such as those occurring in Myanmar, this would represent a growth of the international criminal justice project and likely a strong deterrence for future crimes of this scale and nature.

So, should the ICC step aside and let the ICJ handle this issue? If the ICC will face particular difficulty addressing this situation while remaining within its legal jurisdiction and the ICJ has a stronger chance at succeeding, perhaps re-routing these ICC resources to other situations should be considered as an effective way to fight impunity.

Or perhaps the ICC could use its investigation to continue to put pressure on Myanmar to resolve these issues, and even on the ICJ to complete a thorough investigation and prosecution, without the ICC ever escalating to a prosecution themselves—a strategy that would be not dissimilar from the ICC’s attempts to indirectly bring about justice through positive complementarity in Colombia (more on that here).

However, it also needs to be considered that the aims and purposes of the ICC and the ICJ do differ from one another. As stated above, the ICJ is not a criminal court but a disputes court and it likely would not focus on individual accountability as the ICC would. However, it could issue immediate measures to intervene and protect the Rohingya (https://www.aa.com.tr/en/asia-pacific/courts-decisions-must-reflect-rohingya-genocide-survivors/1648048). Perhaps those most responsible for the atrocities in Myanmar, and its border with Bangladesh deserve the consequences that may be handed to them by both courts.

Even if the Court does decide to consider a new form of complementarity that takes into account international or regional courts, the interests of justice must be considered alongside the willingness or ability of these others courts—especially as different courts are likely pursuing slightly different conceptions or forms of justice. These different conceptions of justice could be a pro or con of the other courts, but this would have to be considered on a case-by-case basis. Still, as the ICC has limited resources and the world has an unfortunate abundance of atrocities, perhaps recognizing the differing jurisdictions and roles of other international courts could help the ICC progress towards its goal of ending impunity.

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What Makes a Court Effective? – Reflections from Theodor Meron

November 22nd, 2019 No comments

Hello IR4567,

When searching for a topic for this week’s blogpost, I stumbled across this (https://www.youtube.com/watch?v=S3UBZ3MYY5c) TED Talk by Theodor Meron, a former judge and President of the ICTY. Meron boasts a long career in the field of international criminal law, including his time as a Professor at NYU, as a member of the US Delegation to the Rome Conference, and also as a judge a the ICTR. His TED Talk offers an effective starting point for this final blog post as he summarises the issues which currently exist within the field of international criminal law. It echoes much of what we have discussed over the past weeks, about how we can measure the effectiveness of the ICC and what criteria we should use to do so. In just 15 minutes he outlines the difficulties that international criminal courts face, highlights the main criticisms of international courts, and summarises with his own views. I will endeavour to summarise his points and views whilst also relating them back to many of the themes that we have discussed in class.

Meron offers a comparison of international and domestic criminal courts in order to illustrate the many difficulties faced by international courts (and thus the ICC). He shows that although they are similar in principle, clearly a lot more must be considered when trying individuals at the international level. The two have the same fundamental values and processes, like weighing up evidence, following the due process of law, and abiding by the law and human rights. However, he explains that international criminal courts are “extraordinary” in comparison. He offers several points to substantiate his claim, many of which we have touched on throughout the semester:

  • The breadth and scale of crimes committed over long periods and across many localities
  • The enormous body of evidence that must be considered
  • The lack of an independent police force
  • Dependence on the cooperation of sovereign states which is not always available (which, as we spoke about in Week 9, is especially important with regards to the US and the ICC)
  • Political dimensions

Meron’s final point entails that international criminal courts have a unique role because they are often seen as something much more than just criminal courts. He argues that judgements are expected to be definitive histories of the conflicts, that they are expected to foster reconciliation between parties to the conflict and are expected to bring victims closure through convictions. He highlights that many equate bringing senior leaders to justice with a conviction and therefore the accused therefore often come toward international courts with a presupposed narrative of guilt (which raises questions about whether they are receiving a fair trial). He argues that although judgements may produce convictions this is “not their judicial mission nor is it a yardstick for measuring their success”. This relates directly to a recurring question about the ICC which we have discussed throughout the semester and particularly in Week 2: what criteria should we use for assessing whether the court is effective? Meron’s criteria for assessing the effectiveness of a court is clearly not the number of convictions which it achieves, which poses the question, how can we measure the court’s success?

He points out that many critics have made the claim that international justice is failing because of the high number of acquittals, however he argues strongly against this. Acquittals are often controversial and at the international level this is magnified; they can be seen as a denial of what happened to the victims, or as rewriting the history of the conflict and failing to promote reconciliation. In Meron’s view, a true failure of international justice would be if judges convicted individuals without adequate evidentiary and legal basis, as it is the duty of all judges to abide by the rule of law. He argues that this criticism suggests that we should be educating people on respect for the rule of law, as in all societies we are required to accept the decisions of courts not only of which we agree but of those which we disagree.

This talk was given by a former judge at an international criminal court, therefore his criteria for measuring the effectiveness court may be different to that of a victim, or a prosecutor. Meron’s yardstick for effectiveness is a court that upholds the rule of law, however for others this could be the number of prosecutions, investigations, or cooperation from the international community. His talk does however offer a useful point of reflection across the module as a whole and prompts us to consider how we may assess what makes for an effective ICC.

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The ACJHR: an attempt to perpetuate a culture of immunity or an example of positive complementarity?

November 22nd, 2019 No comments

Hi everyone,

In the reading from week 10 “African resistance to the International Criminal Court: Halting the advance of the anti-impunity norm”, Mills and Bloomfield use the entrepreneur-antipreneur framework to explain the ways in which some African states have resisted to the anti-impunity norm promoted by the ICC. On page 113 they mention how the AU’s initiative to create an African Court of Justice and Human Rights (ACJHR) with jurisdiction over international crimes represents a clear example of tactical resistance. This got me thinking about the role of regional courts in the international criminal justice system and whether the creation of the ACJHR would result in a situation of competition or, conversely, of positive complementarity.

For now, there is no active permanent regional tribunal with overlapping jurisdiction over the international crimes covered by the Rome Statute, so the ICC remains the only supranational court that can prosecute individuals charged with the gravest crimes of concern to the international community. The Statute does not mention regional courts; Article 17(1)(a) provides that the ICC will only intervene if the state is unwilling or unable genuinely to carry out an investigation, but it is not clear where regional courts would stand within this complementarity framework. In the absence of a clearly defined formal relationship, Article 17 could potentially be interpreted in purposive terms so that a case being prosecuted in a regional tribunal was technically seen as being prosecuted by the state.

After al-Bashir’s indictment, the AU Assembly adopted the “Malabo Protocol” in 2014 to expand the mandate of the African Court of Justice and Human Rights to include jurisdiction over war crimes, crimes against humanity, genocide and aggression. The project has been widely criticised as an attempt to secure regional exceptionalism by applying “African solutions for African problems”. The main controversy regarding the content of the draft protocol is Article 46 Abis, which contradicts Article 27 of the Rome Statute by granting immunity for any AU head of state or government or senior state official during their tenure of office. In addition, the Malabo Protocol does not mention international jurisdictions and in particular the ICC in its conception of complementarity, which raises concerns over the real purpose of its creation. If the ACJHR had primacy over the ICC in the African continent and worked as an alternative and not a partner to the Court, the protection of victims and authority of the ICC in the region would be deeply compromised.

However, I do not think that the creation of regional courts with criminal jurisdiction would necessarily delegitimise or destabilise the ICC project. The opposite could be true: regional criminal tribunals could serve to fill justice gaps and act as intermediary courts between the national court and the ICC strengthening the principle of positive complementarity that structures the system of prosecution of international crimes. An important advantage is that trials would take place closer to local communities and the territory where violence has taken place so not only accessing to evidence and witnesses would be easier, but this could also help reinforce the sense of legitimacy and representation and enlarge the prospects for cooperation.

Also, cases such as that of al Mahdi or Lubanga have raised concerns that the Court is not always going after the most responsible perpetrators. If regional criminal courts dealt with the prosecution of middle-range military commanders and political actors, the ICC could just target the big fish and focus more effectively on ending immunity for heads of state and government. The regional tribunal would be a court of next resort to the national jurisdiction and the ICC would still have jurisdiction if the courts at both levels failed to deliver justice.

Obviously, this would only work if regional courts subscribed to the norms that form the core of the Rome Statute, were provided with sufficient funds and resources and engaged in a constructive, cooperative relationship with the ICC. Otherwise, a chaotic system of courts with overlapping jurisdictions could develop; with clashing norms, parallel proceedings and continuous conflict to decide which court has primacy to deal with a case. A situation of negative complementarity would challenge the legitimacy and centrality of the Court and give an opportunity for states to invoke local non-interference and immunity norms to resist the application of the Rome Statute.

If you are interested in the topic, these are 3 very interesting articles that helped me form my opinion:
https://academic.oup.com/jicj/advance-article/doi/10.1093/jicj/mqz040/5613008
https://ora.ox.ac.uk/objects/uuid:2ae30737-0e64-46ae-97c9-b3e387759798/download_file?file_format=pdf&safe_filename=Regional%2BComplementarity%2B-%2BORA.pdf&type_of_work=Journal+article
https://www.justiceinfo.net/en/other/37633-what-prospects-for-an-african-court-under-the-malabo-protocol.html

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Myanmar: Decisive or Destructive?

November 22nd, 2019 1 comment

In launching a full investigation in Myanmar, the Court has simultaneously undermined and strengthened its own legitimacy. The long-term implications could potentially be revolutionary, or they could be destructive. In a short 750 words, I hope to outline why this is.

For a quick Wikipedia backstory on the conflict in Myanmar, which is the world’s longest ongoing civil war, please click here. The short story is that there has been ethnic divisions dating, in some form, back to 1948 which have resulted in protracted conflicts of varying degrees. In August of 2017 there was a brutal military crackdown by Myanmar forces against the Rohingya, where the military carried out mass killings and gang rapes with what UN investigators have termed “genocidal intent”. This mention of the so-called ‘crime of crimes’ coincides with international outrage and legal pressure to deal with the violence in a meaningful way. It is here that the ICC becomes a player, however there is a sizable problem: Myanmar is not a member of the Court. Barring a UN referral, the Court has no jurisdiction over crimes committed by the nationals of a non-member state on non-member territory. However, as we know, the ICC found a legal loophole. In a ruling last year, the ICC allowed itself jurisdiction over the conflict due to the deportation of the Rohingya people from Myanmar to Bangladesh, which is a member state. This is a controversial choice, one which will have interesting impacts both on the Court’s functioning and on public opinions around the world.

On one hand, this contentious action marks the Court’s dedication to ‘ending impunity’ and to serving as a truly independent court working for the victims, whoever they are. The evidence for violations of human rights and international law is overwhelming, and, in choosing to investigate despite the possible barriers, the Court has created a strong sense of legitimacy for their mandate. Furthering this same sense, the Court is simultaneously addressing accusations that it is biased in primarily investigating cases in Africa while ignoring serious crimes in other parts of the world. When facing critiques that it does not always investigate when it clearly should, the Court has chosen to act in the interests of victims and to stand-by its pledge to be impartial and independent. They have chosen to do so despite the strong opposition from states who dispute the Court’s authority to act even in situations involving non-member states. This is a huge moment which should not go unrecognized.

However, on the other hand, questions have been raised about the legitimacy of the Court because Myanmar refuses to accept ICC jurisdiction, finding the grounds regarding refugee locations to be illegal. Myanmar has repeatedly defending its 2017 actions, maintaining that they were necessary to stamp out fighters, and it has also long refused to recognize the authority of the ICC, a position it has reaffirmed since the official launching of the investigation. This threat to the ICC is striking if we remember the last time the Court attempted to act when a state government was not being cooperative in the case of Kenya. The Prosecutor was forced to drop the charges, not due to insufficient evidence or any other reason, but due to domestic resistance which made continuing the investigation costly and ineffective. Opening a case in Myanmar, where not only are they unlikely to cooperate, but where jurisdiction is tentative, is risky for the Court’s reputation, when it has already been shaken.

The question I am asking myself is whether or not this gamble will pay off. On the idealistic side, these are the kind of bold moves we expect from the Court. Between their lofty mandate and their miraculous creation story, continuing to challenge the traditional power structures of the world seems to be the logical next step. But, for me, there is one crucial concern. Do these kind of statements further isolate the ICC from powerful states such as the US who might fear the stretching jurisdiction of the Court and/or do they undermine the legalist standpoint of the Court? One of my favorite things about law is how adaptable it is, when it appears to be so rigid. The Court creatively interpreting the Statute in order to further their cause of justice for victims is a very good depiction of that. However, if it results in an undermining of the Court’s authority in the future, it may not be the bold claim that the Court needs to restore the faith of its signatories in its capacity for justice.

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Thirty Year Sentence for ‘The Terminator’

November 21st, 2019 5 comments

‘Only 30 years?’ ‘For murder? Shouldn’t he get longer?’

These were my friends’ reactions when I told them the ICC had given its longest sentence. I explained Bosco ‘The Terminator’ Ntaganda was sentenced to 30 years’ imprisonment for crimes against humanity and war crimes, including murder, sexual slavery, and enlisting child soldiers.To me, this demonstrated ICC effectiveness, but my friends were sceptical. After discussing the differences between domestic and international law, I started to wonder if they were onto something. As such, this blog is a tool for me to determine my own stance on the Ntaganda sentencing and what this historic sentencing means.

Starting with the Rome statute, Articles 77 and 78 limit sentences to 30 years’ imprisonment, but provide for  life imprisonment in cases of extreme gravity. Thus, Ntaganda has received the highest possible term excepting life imprisonment. The Rules of Procedure and Evidence implore judges to consider the culpability and gravity of crimes, and aggravating and mitigating circumstances. They are also required to consider the harm caused to victims and their families.

Ntaganda was convicted as a direct perpetrator of murder as a war crime and crime against humanity, and persecution as a crime against humanity, and considered an indirect co-perpetrator for 13 other crimes. The sentencing judgment states that Ntganda’s crimes did not meet the gravity threshold for life imprisonment, in part due to the overlapping nature of these crimes. For the murder and persecution convictions, Ntaganda was sentenced to 30 years. Sentences for his other charges ranged from 8 to 28 years. While reading the judgement’s reasoning regarding each of his horrific crimes, life imprisonment seems a natural solution, but I do not have the legal background to judge gravity.

To better understand this, I tried to place Ntaganda’s sentencing within broader considerations of international criminal justice according to scholarly literature. Schabas notes that at the Rome Conference, several states argued that life imprisonment violated the International Covenant on Civil and Political Rights (2017). He argues that the sentencing provisions of the Rome Statute demonstrate progress in international criminal justice since the executions at Nuremberg and Tokyo (Schabas, 2000, 2017). According to these principles, Ntaganda’s sentence is appropriate, meeting modern standards of punishment. However, I question whether sentencing limits for the four core crimes of the ICC should equal those for domestic crimes of a less systemic nature.

It is also useful to examine literature about the purposes of punishment. One purpose is retribution, which suggests the guilty deserved to be punished, and levels of guilt should determine the extent of the punishment (Drumbl and Gallant, 2002; Ohlin, 2009). Henham claims retribution is inherently moral 2003). It appears Ntaganda’s sentence is retribution, as he (pending appeal) will be punished in accordance with his conviction. He is also serving a longer sentence than other ICC defendants convicted of fewer crimes. There is also the ‘expressivist’ element of punishment, where punishment communicates the international community’s disapproval of certain behaviour (Henham, 2004; Ohlin, 2009). This is clear in the Ntaganda case because the maximum sentence was selected, suggesting the international community vehemently condemns the crimes he committed. A more specific example is the 28-year sentence for his indirect co-perpetration of rape, as the judges state sexual and gender-based crimes have special status in the Rome Statute. This communicates the international community’s serious approach to such crimes, which is also demonstrated by the fact that Ntaganda was the first person to be convicted of sexual slavery crimes at the ICC.

The purpose of deterrence is suggested (Drumbl and Gallant, 2002; Henham, 2003, 2004; Schabas, 2017), but it is difficult to measure how one individual’s conviction can have deterrent effects. Many scholars also suggest rehabilitation as a purpose of punishment (Drumbl and Gallant, 2002; Henham, 2003). However, I agree with Ohlin, who suggests that rehabilitating individuals involved in crimes against humanity is neither feasible, nor ideal (2009). I doubt that Ntaganda can be rehabilitated after his horrific crimes. Still, he is rehabilitated in the sense he will return to civilian life after his imprisonment.

What do I conclude? Though I morally struggle with a thirty-year sentence given the range of serious crimes attributed to Ntaganda, it fits the purposes of punishment laid out by legal scholars. Thus, this landmark sentence appears to be justice in that Ntaganda is punished, but it is not, in my view, necessarily justice for his victims. Ntaganda has appealed this decision, so it remains to be seen how many years he will actually serve.

-Taylor Hendrickson

Sources:

Henham, R. (2003). Some Issues for Sentencing in the International Criminal Court. The International and Comparative Law Review Quarterly, 52(1), 81-114.

Henham, R. (2004). Theorising the Penality of Sentencing in International Criminal Trials.  Theoretical Criminology, 8(4), pp. 429-463. 

ICC Rules and Procedures of Evidence.

Ohlin, J. (2009). Towards a Unique Theory of International Criminal Sentencing. Cornell Faculty Law Publications. Paper 23.

Schabas, W. (2000). Life, Death and the Crime of Crimes’. Punishment and Society, 2(3), 263-285.

Schabas, W. (2017). An Introduction to the International Criminal Court, 5th ed. Cambridge: Cambridge University Press.

The Prosecutor v. Bosco Ntaganda, Case No. ICC-01/04-02/06, Sentencing Judgment (7 November 2019).

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The Trump Administration & The ICC – a decline in international human rights?

November 21st, 2019 2 comments

In a speech delivered by John Bolton on the 10th of September 2018 he remarked that “the International Criminal Court constituted an assault on the constitutional rights of the American People and the sovereignty of the United States” (Sterio 2019). He went on to discuss the investigations into the allegations of human rights abuses by US nationals in Afghanistan by claiming it is “an utterly unfounded, unjustifiable investigation” (Sterio 2009). However, the investigation was neither unfounded nor unjustifiable. The investigation falls within the courts mandate and satisfies the Rome Statue’s requirement on jurisdiction as the alleged crimes took place after 2002, on the territory of a state party. Are these fabricated claims made by the Trump administration against the ICC really concerns of state sovereignty or are they part of a wider intention to shy away from international human rights norms?

The Trump administration’s robust policies to keep out the ICC have been heavily denounced by human rights organisations. Such policies include visa restrictions and the economic punishment of states cooperating with the ICC. Secretary of State Pompeo said, referring to court officials, “you should know if you’re responsible for the proposed ICC investigation of U.S. personnel in connection with the situation in Afghanistan and you should not assume that you will still have or will get a visa or that you will be permitted to enter the United States”. Pompeo added that the administration was prepared to impose visa restrictions in other cases involving allies, including Israel. “These visa restrictions may also be used to deter ICC efforts to pursue allied personnel including Israelis without allies’ consent,” he said. Such powerful backlash at the ICC for investigations carried out on their nationals could be interpreted as Trump’s fear towards what the investigations could overturn about the US’s conduct in Afghanistan. The fact that the sheer power of the US allows them to wriggle out of scrutiny for their potential war crimes could be damaging not only to the reputation of the ICC, but to international human rights standards as a whole. The US Ambassador for the United Nations sums this point up firmly in a statement: “Taking action against those who work for the ICC sends a clear message to torturers and murderers alike: Their crimes may continue unchecked.”

The shocking truth is however that this revolt against the ICC isn’t a stand alone event, but part of a series of actions made by the Trump administration to show a decline in interest towards international human rights norms. US leaders have historically been advocates and example setters for human rights issues, but it could appear that this is starting to change. Trump’s National Security Strategy, issued last December, does not mention promoting human rights as a goal. The strategy commits the Administration to support individual dignity, freedom, and the rule of law. Such good things, however, are cast as “American values,” rather than rights to which all people are entitled (Bellinger 2019). The strategy emphasises that “we are not going to impose our values on others.” This can readily be interpreted as meaning the U. S’s human rights policy will be only to lead by example and not to promote human rights in other countries (Bellinger 2019).

In comparison to the human rights promotion seen by other US state leaders, this can be assessed as backwards steps. Overall this is not overly surprising from a President who has imposed travel bans on Muslim countries and has attacked free press. The reformed security strategy is not alone in displaying Trump’s attitude towards human rights. In June of 2018 the US also withdrew from the United Nations human rights council. The United States now joins Iran, North Korea and Eritrea as the only countries that refuse to participate in the council’s meetings and deliberations. The US asserted that the withdrawal is protest against Israel’s treatment of Palestine. This is the latest effort of Trump to pull away from international organisations that it finds objectionable.  The Trump administration seems anti maintaining the US’s role as a leader in promoting international human rights as this withdrawal demonstrates the greater value they place on maintaining allied political relationships than promoting international human rights.

Trumps withdrawal from the ICC has never appeared overly surprising based on the US’s long-standing criticisms of the institution. However, this can be argued to be less about protecting US sovereignty and more about the US’s growing desire to shy away from international human rights norms. The decision to implement harsh policies relating to the cooperation with the ICC is not the only decision made by Trump that affects the US’s need to comply and promote international human rights standards. Should therefore the Trump administration’s decisions on policy relating to the ICC be considered as another red flag as to the US’s position on international human rights?

 

References

  • Bellinger, John B. (2019). “The Trump Administration’ s Approach to International Law and Courts: Are We Seeing a Turn for the Worse?”, Case Western Reserve Journal of International Law, 51, 7-29.
  • Sterio, Milena. (2019). “The Trump Administration and the International Criminal Court: A Misguided New Policy”, Case Western Reserve Journal of International Law, 51, 201-212.
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United States & the ICC – What went so wrong?

November 21st, 2019 2 comments

Hello, IR4567

The United States’ relationship with the International Criminal Court is hostile to say the least. In the speech I think we were supposed to watch in class, John Bolton now former national security adviser to Donald Trump, referred to the ICC as an “illegitimate court” threatening to use “any means necessary to protect its citizens” (https://www.youtube.com/watch?v=NWB6IUE0hJU – 0:50). That week we also looked at explanations of why this was the case. It just so happens, however, that I think these explanations missed a key detail. I want to advocate for emotions; that current US hostility is actually explained by ICC mismanagement, poor diplomacy, and subsequent humiliation, something that could have been avoided. 

Before going into depth about why I think the US is hostile to the ICC, its worth quickly recapping the United States’ role in the creation of the ICC. Authors, William Schabas does a great job of this. In terms of the history of international criminal justice, there has really been “no greater friend or promoter than the United States” (Schabas, p. 702). They played a central role in Nuremberg and Tokyo, they took the initiative to promote ad hoc tribunals for the former Yugoslavia, Rwanda, and Sierra Leone. The United States also assisted in the process leading up to the establishment of the International Criminal Court, with the Clinton administration ultimately signing the statute. In all cases the US “used its financial muscle to make these projects a reality” (Ibid).

What went so wrong? In looking for an explanation a lot of weight in the readings appears to be attributed to the tension between the Security Council and the International Criminal Court. According to the final draft of the Rome Statute, the ICC would place the power of law enforcement outside the control of governments. Under Article 15, the prosecutor has the authority to initiate prosecutions independently of the Security Council; the original ILC draft did not allow for this. Jack Goldsmith has argued that not only Washington but Beijing and Moscow were “all concerned that the ICC might intrude upon the Security Council’s responsibility for international peace and security” (Goldsmith, 2003, p. 90). From this perspective, if the United States was to ratify the Rome Statute, the ICC would have discretion over US nationals. For many,  it appears this is where the US’ hostility emerged from. 

However, given the history of international criminal justice and the United States’ relationship with it, this explanation alone is not enough. All three international tribunals for the former Yugoslavia, Rwanda and Sierra Leone, all had jurisdiction over US nationals. As Schabas points out, the prosecutor for the International Criminal Tribunal for the Former Yugoslavia even published a report on its examination of allegations that American military personnel might be responsible for serious violations of international humanitarian law during the Kosovo bombing campaign. This could have realistically implicated US citizens and yet the United States still fully participated. 

I want to offer a close, yet alternative explanation. I believe the answer is more personal than strategic. I agree with Schabas, “the world’s only superpower found itself outmanoeuvred” (Schabas, p. 720) even by its closest friends and allies. Yet, with no opportunity to save face, this was altogether humiliating for the United States. More importantly, however, humiliation is not exactly conducive to good relations. Schabas accepts that the adoption of the Rome Statute “represents a singular defeat for American diplomacy”, but his analysis is rather emotionless. Perhaps I’m inclined to think this way given that year I took IR3066 Emotional Encounters: Diplomacy, Power and Persuasion in World Politics. This fits very well with what we are seeing now. I think it’s fair to say that one of the core attitude of the Trump administration is ‘national interest’ and the idea of ‘America First’. Any sense of humiliation or prior defeat is likely to loom large as a point of contention for any administration that frames national interest as the highest priority. It’s not enough to say that the United States is hostile because it did not get the draft of the Rome Statute it wanted. It also suffered a public loss on account of the ratification process that clearly undermined US interests and the efforts that the United States had contributed in the run up to ratification. I would very much like to hear from the class any other alternative opinions on why the US shares such as hostile relationship or is there anything I missed in my brief analysis? 

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China and the ICC – a Constructive Critic relationship?

November 18th, 2019 3 comments

Hi IR4567,

In this blog post, I wanted to talk about the opposition to the ICC…that isn’t the United States. In the Week 9 lecture, Dr. Bower made the point that the US, to their credit, has been the most outspoken opponent of the ICC. However, there was no mention of, nor have we discussed, the ways in which other large powers, namely China and Russia, have made their opposition apparent. In the interest of this being a 750-word blog post, I am going to focus on China.

China, much akin to the US, appears to have a tumultuous relationship with the ICC. What strikes me as interesting, and certainly different from the US-ICC relationship, is that in a variety of instances China has been a proponent of the ICC. Academics Bing Bing Jia and Dan Zhu both begin their respective evaluations of the China-ICC relationship by acknowledging that China has been a proponent of the creation of a permanent international criminal court, and consistently demonstrates their support of this idea within their foreign policy objectives – albeit, without formal engagement with the court.

In a speech delivered by Minister of Foreign Affairs for China, Mr. Ma Xinmin, at the General Debate at the ASP in 2017, Mr. Xinmin explicitly states that “the establishment of an independent, just, effective and universal international criminal judicial institution is the desire of the international community, including China”. Chinese support for the court comes in many different realms. China actively participated in every stage of the negotiating processes of the ICC, including Kampala and the early ASP meetings that led to the Working Group for the Crime of Aggression. Secondly, China has consistently remained a formal “observer delegation” since the Rome Statute, and has actively participated in this role (e.g., the speech Mr. Xinmin was invited to give). Thus, their relationship with the ICC seems to differ vastly from that of the US – although neither country has ratified the Rome Statute, China has maintained a positive and constructive relationship with the ICC, unlike the rollercoaster of a relationship the US and ICC have had.

That being said, China has had its moments with the ICC. They didn’t ratify the Rome Statute in Kampala due to concerns that it infringed on state sovereignty, and that the definition of the Crime Against Humanity did not differentiate between times of peace and war – even in times of peace, crimes against humanity can be investigated. These concerns seem to have carried on throughout the 21stcentury, with China expanding on their constructive criticisms of the ICC. In his 2017 speech, Mr. Xinmin argues that the ICC should learn from the recent influx of non-cooperation with the ICC, and the consistent threats from states to withdraw from the Rome Statute. He lists 5 ways in which the court could adapt to minimize the issue of non-cooperation, including making sure observer states maintain their rights to be involved in the formation of international justice, and their recommendation for there to be continued discussion regarding the Crime of Aggression. Although some of these recommendations read more extreme than others, the way in which they are elaborated on by Mr. Xinmin makes me think that China is actually invested in international justice, and that they truly don’t want to see the ICC fail completely like the US might.

On the very little information I have given you RE this topic, I have some concluding thoughts and questions.

I believe that China, if we were to categorise their relationship with the ICC like what has been done in relation to the ICC and US (Open Defiance, Cautious Re-engagement, Accommodation), I would say China has appeared to be a relatively stable Constructive Critic of the Court. Ultimately, China has consistently made their support for international justice prevalent, while making their dissatisfaction with the ICC known without shouting it from the rooftops like the US has. I would also call them Constructive Critics because of their prevalent desire to still be involved with the ICC regardless of their dissatisfaction, which to me indicates their genuine desire to help, even if their help is eliciting their own ulterior motives.

Do you agree with the idea of China being a Constructive Critic of the ICC? What are your thoughts on how China has handled their criticism of the ICC versus that of the US? Do you think China being less vocal about their concerns is more likely to affect change, or will the US’s loud-mouth approach prevail?

 

If you got this far, thank you for reading!

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The Africa “Bias”

November 14th, 2019 2 comments

Over the past couple of weeks, I have been cracking on with my dissertation literature review, which is based on the ICC’s relationship with Africa and the so-called “bias” that the Court has against the continent. I will outline the main positions of the scholars whose work I have read, explaining why, in their view, the ICC is prosecuting more in Africa than any other region of the world. There are three main hypotheses that I have discovered, and I will share them with you in time for our studying of the ICC and Africa in Week 10.

The first hypothesis is that the Court is a neo-colonial tool, being used by major powers to maintain domination over African states. This has developed into the Court being “racist” and using Africa as a test laboratory to gain legitimacy. These critiques of the Court came from African leaders mainly though the African Union (AU) after the arrest warrant of Omar Al-Bashir and the indictment of Uhuru Kenyatta in 2009 and 2011 respectively. In response to these cases, and in fear of being indicted themselves, some African leaders attempted to delegitimise the Court, which has led to a surge of complaints over the past decade that the Court is a “racist” institution that targets Africa. This “racism” claim is hard to accept, considering that it has originated from scared leaders. A slightly stronger argument under this hypothesis is that the Court is “using” Africa to gain legitimacy on the global political stage. The ICC is trying to “score quickly” by basing its work in Africa for the long-term goal of being able to go after powerful individuals in hegemonic states.

The second hypothesis is that the ICC is limited to focus on Africa through political pressures, mainly from the United Nations Security Council (UNSC). As we are aware, the ICC is limited to investigate only member states, unless the UNSC refers a case to the Court for investigation. This relationship might seemingly expand the Court’s jurisdiction to non-member states; however, the veto power in the UNSC causes issues for pursuing cases in other regions of the world. So far, there have been two successful UNSC referrals (both African): Sudan and Libya. However, the UNSC referral of Syria to the ICC failed due to negative votes from Russia and China. This shows how the major powers have the ability to direct the court to focus on a specific region, whilst protecting themselves and their allies. A further interesting point is the politicisation of the crimes in the Rome Statute. Kamari Clarke argues in her post on the ICC Forum that the crimes selected in the Rome Statute focused on crimes of mass violence that were mainly present in Africa and Latin America at the time. This limited number of crimes narrowed down the main regions that the ICC was likely to be investigating.

The third hypothesis is that the ICC is predominantly focused on Africa because Africa, more than any other region in the world, wants to be investigated by the ICC. This argument is twofold. Firstly, the Office of the Prosecutor and individuals such as Kofi Annan, the former Secretary General of the United Nations, argue for the victims. Their stance is seemingly that African victims need and deserve justice, so the ICC must stay strong with its African investigations for those victims. The second part of this argument is that African states want to be investigated by the ICC. There have been five State Party referrals out of the ten African investigations. With two of the other African cases coming to the Court from a UNSC referral, a picture is building that the ICC is not a “racist” institution but, instead, an institution that is listening to the demands of the people who need the Court most.

I want to finish with an idea I found particularly interesting: the ICC is not a tool for the powerful states to use against weaker states or for weak states against the powerful; more it is for weak, fragile states to use against weaker, non-state actors – such as the case of the Lord’s Resistance Army (LRA) in Uganda. The ICC has been criticised for only investigating one side of the conflicts it investigates, often the non-state actors.  With this, governments and state leaders are able to refer any opposition or threat to their power to the ICC to be investigated.

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Punishment vs. Reward – a new solution for State non-compliance?

November 8th, 2019 2 comments

Hi IR4567,

I found the discussions we have had about State non-compliance with the ICC interesting, but somewhat troubling. Why is the answer to non-compliance always seemingly related to punishment? Sure, punishing states for their non-compliance with the responsibilities set in the Rome Statute is a logical conclusion to minimize non-compliance, but like the old saying goes, you catch more flies with honey than you do with vinegar.

When asked in tutorial about what we would do with the assembly to make enforcement and non-compliance less of an issue, everything that was bought up (by myself included) was a form of punishment. Impose financial fines, take away their voting rights, place symbolic restrictions on nationals being elected as ICC representatives and judges, were all viable and well thought out answers to the question – but why didn’t any of us think about using positive reinforcement to combat non-compliance?

To look at it from a psychological standpoint, offering rewards has been proven to positively reinforce certain actions and elicit certain responses. Studies show that offering rewards for children who eat their vegetables increase the likelihood of children continuing to eat vegetables that they disliked previously. Similarly, Pavlov’s Dog experiment famously showcased how classical conditioning can elicit responses from actors – in this case, the sound of the bell ringing made the dogs salivate in anticipation of their food. These are two examples of the greater psychological principle that exists: positive reinforcement is an effective way of manipulating actors’ behaviours.

Positive reinforcement isn’t exactly abundant in the literature surrounding state non-cooperation. Socialisation theory demonstrates that social influence can be used as a combatant against a problem of collective action in international institutions. In reality, social influence can take the form of social rewards or punishments – namely, the offering of material side-payments or ‘backpatting’ (a term related to the economy of social influence and status). The idea of material side-payments is logically confusing– who would provide these side-payments? The ICC or cooperative member states? What should each reward be?

However, the idea of backpatting and the economy of social influence, in my opinion, is much more interesting and probably more realistic in terms of the ICC. Carraro et al discuss the impacts of peer and public pressure among states in terms of international organisation participation. They detail how the concept of ‘naming and shaming’ is an effective method for states submission, as the “social discomfort of being reprimanded pushes [them] towards compliance”. Although ‘naming and shaming’ isn’t positive reinforcement, this does speak to the idea that compliance can be elicited from psychological tactics. Considering the economy of social influence, and the reality that ‘naming and shaming’ combats non-cooperation, there is potential for the theoretical basis of ‘backpatting’ to effectively promote the idea of cooperation. If states dislike the social discomfort they are placed under with ‘naming and shaming’ enough to elicit cooperation, potentially seeing states gain social influence via backpatting would make non-compliance less attractive.

Because nothing in IR is ever simple, there are a lot of reasons as to why backpatting might not work and conditions under which it has proven to be ineffective, which you can read about here. However, in the interest of me following this thought through, and offering evidence as to why we should also be taking into consideration positive reinforcement when we are discussing non-compliance and the ICC, I’d like to quickly mention a case in which backpatting haseffectively increased compliance: the Mine Ban Treaty.

In his chapter Goodwill Yields Good Results, Stephen Goose details how, against sceptic’s predictions, the Treaty’s international reach has been undeniably impressive, with over 155 State Parties, even without the social influence of states like China, Russia, and the US (who had not ratified the treaty). Although still imperfect in its reality, the Mine Ban Treaty is a testament to positive reinforcement eliciting compliance. Headed by Canada, cooperative compliance was the approach taken to implement the treaty, which assumed “goodwill on the part of all States Parties and emphasizes resolution of issues in a nonconfrontational manner and assistance to help States Parties to meet their obligations rather than criticism for failing to do so”. This approach saw a 96% compliance rate in the initial transparency reporting.

If the Mine Ban Treaty was so effective in its compliance because of the positive reinforcement associated with compliance, do you think it would be worth a try for the ICC should attempt to mirror this by publicly backpatting cooperative states, increasing their social influence, in hopes of increasing compliance with ICC mandates?

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Koh vs Wenaweser: Aggression Gets Aggressive

November 5th, 2019 No comments

Hi guys,

In the course of researching the crime of aggression for my short essay, I came across this talk between Harold Koh and Christian Wenaweser on YouTube. (https://youtu.be/CLSzsyRsjTg) Titled “Nuremberg, 70 years later” and intended as a conversation, this talk quickly turned into a heated but very entertaining debate on the crime of aggression amendments. Ambassador Wenaweser was the President of the Assembly of States Parties to the ICC and presided over the Kampala Review Conference. It wouldn’t be an exaggeration to call him one of the biggest advocates of the Crime of Aggression amendments. On the other side of the debate, Professor Harold Koh served as the Legal Adviser of the U.S. Department of State and represented the United States in Kampala. He also co-authored “The United States Perspective” on the Crime of Aggression, in which he systematically pokes holes in the crime of aggression amendments, points out their flaws, and provides a comprehensive account of why not to sign onto the amendments in their current form. It becomes clear very quickly that Professor Koh came prepared for a fight in which Wenaweser, constrained by the behavior expected of diplomats, is unable to fully defend himself. While some would see this as two men talking at a small desk in front of a half-full lecture hall in Harvard Law School, it is a heavyweight championship fight for those interested in international law and the implications of the crime of aggression.

In his opening words, Koh puts forward his argument. Why can’t diplomats stop pretending that the Kampala amendments are perfect and simply make an exception for humanitarian intervention? What guarantee, he asks, does a head of state have that he/she will not end up before the Hague for taking part in a humanitarian intervention as part of an international coalition? None. States such as Russia would not hesitate for a second to accuse Denmark (for example) of violating Syria’s sovereignty and acting without the approval of the UNSC. It’s essentially up to the Prosecutor what constitutes a “manifest violation” of the UN Charter, and that, as Koh argues, is a huge problem. In response, Wenaweser quietly states that there is no problem. A state can simply say “The jurisdiction of the crime of aggression does not apply to me,” and that’s the end of it. Wenaweser has opened himself to attack. The bloodbath begins. In the ensuing minutes, the two begin to talk over one another and repeatedly interject. The whole conversation going forward becomes all about Koh’s argument. He frames Wenaweser’s point of view in his own words: “Everything was resolved in Kampala. If you [states] don’t like it [the amendments], opt out. If you like it, you’re exposed.” Logically, no state should ever ratify the amendments so there is no chance they will be prosecuted for humanitarian intervention or other exceptional cases.

I would highly recommend that other members of this module watch this discussion and form their own points of view, as these men make their cases much more eloquently than I can replicate here. Despite the confidence with which Koh makes his cynicism known, I am sympathetic to Wenaweser’s point of view. While Koh’s perspective is informed by assuming a worst-case scenario and bad faith, Wenaweser’s analysis is much more rooted in the way the ICC currently operates. The reality is that the Court probably won’t take a case for aggression any time soon, and as far as I know, no prosecutor is currently pushing for an aggression trial just for the sake of having one. There is no real desire to do so, and an aggression trial over a contested case might damage the Court’s reputation. For the time being, the Court has other priorities. The trouble comes with the future of the ICC and the people which will compose it. Koh’s perspective urges caution and takes into consideration that a future prosecutor might have a far different agenda than those who have served already. How can it be known for certain that an anti-NATO prosecutor will never take the office? Wenaweser’s perspective assumes that the Court will stay much as it currently is, and that no state will weaponize the crime of aggression jurisdiction for its own interests in any way that would require further protections in the form of new amendments. I would be interested to see what other members of this module make of this debate and which side you find more convincing.

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Does politics make the ICC hypocritical?

November 1st, 2019 1 comment

Hola IR4567 class,  

In the news recently, Human Rights Watch have released a report containing evidence of 14 separate cases of violence against civilians in Afghanistan from 2017-2019. This includes interviews with 39 residents who are witnesses to night raids, which have increased over the last two years across the region plus evidence by local Afghan human rights groups. I have been following this with interest because I feel the clear disconnect between universal justice and politics is shocking.  

In 20 November 2017 the Prosecutor requested authorisation from the Pre-Trial Judges to begin investigations into alleged crimes against humanity and war crimes. From 7 December 2017 to 9 February 2018, the ICC Victims Participation and Reparations Section (VPRS) conveyed to the Pre-Trial Chamber a total of 699 victim representations. However, in April 2019, the Pre-Trial Chamber unanimously rejected the requested of the Prosecutor to pursue any further investigation to the crimes committed. This result came as a complete surprise to the international community because the evidence was compelling that the abuse of human rights had taken place.  

This case reminds me of a poem called Assisi, written by Norman MacCaig . It discusses the hypocrisy of the church which represents compassion and benevolence, yet right outside a beggar man is alone receiving no help from the monks. Even as tourists visit, they listen to the priest with interest about the righteousness of the monks and respect for what they preach. This resonates with me and this case because when I first read about why the judges decided not to pursue an investigation, I believed their word rather than recognise the hypocrisy surrounding it.   

On 12 April 2019, the Pre-Trial Chamber (PTC) stated that the investigation’s success was ‘limited’ due to the ‘political change of circumstances’ within Afghanistan. For them, it was not in ‘the interests of justice’ to pursue a case with such restriction in jurisdiction and admissibility. Moreover, they did not believe they could satisfy the ‘objectives’ set by the victims. Therefore, the Chamber felt an investigation could create ‘frustration’ and possibly ‘hostility vis-a-vis the Court’ which could impact the success of their other cases. This prompts the image of the beggar in the poem because the victims have gone to the place that preaches justice and while acknowledging that crimes have been committed, they are turned away.  

Similarly, to the priest talking to tourists in MacCaig’s poem, the PTC carries the same authority for international crimes and justice. When the PTC decided it was against the interest of justice to further investigate, then should we trust them like the priests? Dr Rossetti argued1 that this case in fact highlights the institutional tensions inside the ICC. For example, the denial of some incidents restricted the scope to not include some of the crimes that had the greatest impact on the affected communities. Also, this shows the disconnect between the OTP and the judges in setting criminal policy objectives of the Court. If they are not looking at the justice for the victim, then whom? 

 Amnesty International and Human Rights Watch argue that the threat of American hostility played a more influential role and the abandonment of the Afghanistan case rewards USA for their open hostility towards the ICC.  Even though the NATO mission in Afghanistan ended in 2014, CIA backed Afghan forces continued counter terrorism missions by exerting power over the locals.  Therefore, the Court should consider, prosecuting American special forces as well. One diplomat reported that American military continues to recruit, arm, train and deploy paramilitary groups to tackle militants across the country which are referred to by locals as ‘death squads’. While I recognise the challenges with investigating and prosecuting Americans, the evidence conveys crimes committed by Afghan nationals also.  In the PTC’s statement (paragraph 18) it acknowledges the support from humanitarian organisations within Afghanistan in providing evidence, therefore surely it is in the interest of justice to look at Taliban crimes?  

This links back to MacCaig’s poem where the church is hypocritical by speaking of benevolence but not showing it in action. If the ICC represents what is the interest of justice then they should act when a case, like Afghanistan, shows clear violation of international law.  These severe delays to justice and decades of impunity have left Afghan victims at the ‘mercy of killers’ and shows how politics has made the Court, in my opinion, hypocritical.  I guess I question if justice could ever be universal if politics are so involved? 

 

If interested, here are some links for anyone who wants to read more:  

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Is ICC’s Punishment Method Enough?

November 1st, 2019 3 comments

Hello everyone,

For the short essay, I wrote on “Is justice universal?” and writing this essay got me thinking about to what extent the existence of ICC prosecution or punishment means to the victims of atrocious crimes. Whilst reading various literature on Northern Uganda and Rwanda Genocide, I was in a way shocked at how numerous victims said that they do not care much about ICC’s role in bringing justice. In fact, one woman who has her child abducted claimed that giving Kony and his people guarantee of amnesty is an insignificant price if she can have her child back (Branch, 2004: 24). So I thought it would be nice for me to write a blog on what other roles the Court should perform that will optimise their goals of ending impunity and better accommodate victim’s interests.

Before I get into the main content, I want to stress that I am a strong believer of victim-focus approach. The need for ‘justice’ only exists because there are victims of atrocious crimes and the Court with an authority bring justice for them and to the society as a whole.

According to the Rome Statute’s Article 77, ICC has two ways of bringing ‘justice’. First, is imprisonment and second, fine or forfeiture of property. The money and assets confiscated by the Court can be transferred to the ‘Trust Fund’ that ICC established to benefit the victims of crimes. As ICC is a court, its main priority is to prosecute the criminals through legal procedures. However, unlike the domestic level courts, it is an international organisation with a universal aim and hence, I think ICC should consider expanding its scope of applying penalties to better accommodate the various context of crimes and victim’s interests. Imprisoning high-profile individuals may not always be the best solution.

As ICC is a young organisation, I will use the Tokyo International Military Tribunal (IMT) case to discuss the effect of focusing on bringing justice through sentencing high-profile individuals in depth. The Tokyo IMT first took place in May 1946 and ended on January in the following year. Leaving the debate of whether the Tokyo IMT was a “victor’s justice” or not, to the victims of Japan’s “crimes against peace” and “crimes against humanity, the outcome of the trial was rather disappointing and this dissatisfaction of the IMT’s way of justice is still demonstrated by Chinese and South Koreans. The criminals were classified into Class A, Class B and Class C depending on the gravity of their crimes and numerous high-profile Japanese soldiers and politicians were imprisoned.

However, the need for ‘justice’ only grew bigger since the Tokyo IMT in 1946 to a point that it led to several diplomatic crisis incidents between Japan and South Korea, and China and Japan. Amongst various reasons, Japanese politician’s visit to Yasukuni temple, where numerous Class A criminals are buried anger a lot of Chinese and South Koreans. Should the criminals that have been convicted of heinous crimes under international law be cherished by the state figures?

Another issue that is in the way of reconciliation between Japan, South Korea and China is the ‘comfort women system’. As we know, a crime against humanity did not include sexual slavery and hence, no one was found guilty of rape. But, even if the high-profile individuals were sentenced for raping, do you think that would satisfy of making the victims less angry? I do not think there would have been any difference because, for years and years, China and South Korea have been asking for a sincere apology. Interviews and documentaries based on comfort women claim that instead of contrition, all they want is a sincere apology by the Japanese government admitting their atrocious actions.

Remember in the movie The Prosecutors (2018) we watched in Week 5, what the rape victims in Sudan most wanted were to have their story be told. They wanted the world to know about their traumatising experience and hope that this does not happen in the future.

Reading various works that focus on the victim’s voice made me realise how to them, having their story heard and let the world know about their resentment serves their interest more than high-profile individuals getting sentenced. This finding really made me question the role of ICC in bringing justice. I think instead of having only two ways of applying penalties, the Court should adopt a more flexible approach that better accommodates unique case and victim’s interests.

Do you think it is possible for ICC to have a flexible approach to applying penalties?

[Suggested reading list on the topic]

  • Branch, A. (2004). International Justice, Local Injustice. Dissent, [online] (51). Available at: https://www.dissentmagazine.org/article/international-justice-local-injustice [Accessed 8 Oct. 2019].
  • Hong, S. (2016). The Effects of ‘apology-backlash’ Recurrence on Korea–Japan Relations. Korean Social Science Journal, 43(2), pp.45-61.
  • Kimura, K. (2014). The Burden of the Past: Problems of Historical Perception in Japan-Korea Relations.Ann Arbor: University of Michigan Press.
  • Lind, J. (2008). Sorry States: Apologies in International Politics. London: Cornell University Press.
  • Totani, Y. (2008). The Tokyo War Crimes Trial: The Pursuit of Justice in the Wake of World War II
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Can NGOs help solve the ICC’s issues with its budget and with state non-cooperation?

November 1st, 2019 1 comment

After discussing how difficult it is solve to the ICC’s problems relating to its budget and state non-cooperation, I wondered if examining the strategies that led to the successful negotiation of the Rome Statute might provide us with some ideas. If the ‘like-minded’ group’s use of information sharing and persuasion during PrepCom and the Rome negotiations created a momentum that led to the idea of a stronger international court becoming the popular position, perhaps these strategies can be employed to strengthen the legitimacy of the ICC.

A Foreign Affairs article (available from: https://www.foreignaffairs.com/articles/2016-11-04/icc-ice) highlights several of the challenges the court faces in achieving justice for victims of atrocities. Most prominent is the ICC’s need to rely on state cooperation for the gathering of evidence and the arrest of suspects. As we all know, several states have failed to fulfill the expectation, per the Rome Statute that they are party to, that they will fully cooperate with the Court’s investigation and prosecutions by allowing Omar al-Bashir within their territory and not arresting him. However, when states are criticized by the court for this behavior, they simply ignore it or, as in the case of South Africa, threaten to withdraw from the ICC. The author emphasizes that if states abandon the ICC, they betray the victims of atrocities everywhere. I believe the only lasting solution to this non-cooperation is gaining legitimacy.

The fulfillment of justice for these victims is also threatened by the budget of the ICC. The CICC emphases that the Court’s budget should be developed based on the needs of the world’s victims (http://www.coalitionfortheicc.org/fight/state-support/sufficient-budget). However, the budget can prevent the ICC from delivering justice by not growing with the workload of the ICC (http://www.coalitionfortheicc.org/country/united-states). Additionally, the Court’s reliance on these resources means they are beholden to the largest contributors—suggesting the Court to be influenced by these states.

I think NGOs have an important role to serve in preventing these threats to the court’s success. There are several opportunities for NGOs to influence the behavior of states in the Assembly of States Parties (ASP). The CICC highlights how by attending the ASP’s Committee on Budget and Finance sessions, as well as the Hague Working Group meetings related to budget issues, civil society is able to learn states’ positions, contribute to the development of the budget, and urge states to provide the resources that would allow the ICC to do meaningful work (http://www.coalitionfortheicc.org/fight/state-support/sufficient-budget).

I believe that if NGOs, and like-minded states, worked to more actively persuade the international community of the potential a more truly independent and respected court, issues of non-cooperation and shareholders would be less constraining upon the ICC. The CICC already provides the ASP with objective input and encourages the election of qualified officials through “the most independent and transparent election process”, which helps protect the court from being influenced by individual states’ interests (http://www.coalitionfortheicc.org/about/what-we-do). If, as during PrepCom, NGOs can shift states’ opinions on the right course of action, like by persuading through various arguments, including that the ICC’s needs are much less costly than militaries and just as promising for securing peace and that delivering justice based on victims’ interests is the right thing to do, more states parties will be more cooperative and more states will join. The more widely accepted the court is—specifically, the more states are committed members of the court—the more social pressures countries will feel to support the court’s mission and actions.

This increased acceptance means increased legitimacy, which I believe has a couple helpful consequences. First, states will feel more uncomfortable refusing to cooperate (i.e. not complying with an arrest warrant) with the court because they are more likely to face pressure and backlash from the greater international community and because states often don’t like being the odd man out. Additionally, the more states that are party to the Rome Statute, the more are expected to contribute resources. Though state contributions will never be equal, the larger number of members means that the biggest contributors will provide a smaller percentage of total resources than they would if there were fewer members. Chances of these larger ‘shareholders’ politically swaying the court are slimmer when they control a smaller percentage of the court’s resources—plus with more members, these wealthy states can be outnumbered in negotiations. These two results would ensure that the court could focus on the interests of victims, instead of politics.

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