The International Criminal Court: A Time for Consolidation

Eight years
ago countries from across the world backed the principle of accountability for
mass atrocities by launching a permanent International Criminal Court.  Since then the ICC has accumulated a
strikingly lop-sided record.  It has shown
itself a potent force in world affairs, by issuing an arrest warrant for a
sitting head of state in Sudan, attracting debate about a possible role in
Gaza, and launching a heated argument about the balance between peace and
justice for the brutal Lord’s Resistance Army in Uganda.  What the International Criminal Court has not
yet done is to complete a criminal trial; indeed only two trials are even underway. 

It is easy
to take pot-shots at international courts for the slow pace of their
proceedings, and it would be inappropriate in this case.  The ICC was a new and innovative institution,
set up from scratch with limited resources and no power to arrest suspects
itself.  Although there have been
missteps from the Prosecutor, it was always likely that the process of building
cases and gaining control of the accused would take time.  Equally, the political impact the ICC has
achieved is testimony to the power of the idea it represents and the radical
implications of putting an independent Court enforcing individual
accountability at the heart of the international system.  But there is no denying that the political
repercussions of the ICC have so far outstripped its judicial accomplishments.

Now the
record of the International Criminal Court is up for assessment.  In Uganda next week the states that are party
to the Court will gather for its first review conference.  The agenda includes a discussion of possible amendments
to the Court’s statute and a stocktaking of how the Court is working.  For the ICC’s supporters, this is an
opportunity to help the Court with the process of building its credibility and
gaining international support.  Equally,
the conference should avoid anything that would weaken the institution at a
critical phase of its development.

The most
divisive question at the review conference will be whether to give the ICC
jurisdiction over the crime of aggression. 
Launching an aggressive war was recognized as an international crime in
the Nuremberg Trials after World War II, but no tribunal since then has had the
power to prosecute individual defendants for this charge.  The ICC’s statute included the crime, but put
off the difficult question of how it should be defined and how cases should be
initiated.

Some
countries are concerned that the work of the Court would inevitably become
politicised if individual states could call on it to investigate supposed acts
of aggression against them.  For this reason,
a number of these countries would like the UN Security Council to act as
gatekeeper, so that cases for aggression could only go ahead with its
approval.  But other states, above all in
Africa and the rest of the developing world, think the Security Council already
has too much control over the ICC’s action and would strongly oppose an
increased role for it.

There are
real reasons to be concerned about the effect that open and “unfiltered”
jurisdiction over aggression would have on the ICC at this early stage of its
development.  The rest of the Court’s
work could be overshadowed and its impartiality called into question. But
putting all control over these inherently political cases into the hands of the
Security Council would not serve the Court well either.  It would undermine the idea of the Court as
an independent body that doesn’t only serve the interests of the great
powers.  At a time when all five of the
Court’s active investigations are in Africa, it would be foolhardy to take an
unnecessary step that gives fuel to African charges of political bias.

The ICC was
from the start a cherished European objective: Italy hosted the conference that
launched it, and the Court now sits in The Hague.  European countries are more than ever the
Court’s most active supporters.  Now the
challenge for European countries is to act together to strengthen the Court by
preventing a course of action that would undermine its independence and
universality.  There is no need to reach
a decision on aggression at this conference, and the wisest path would be to
wait until the Court’s foundations are more solid and it has a more substantial
record to look back on.