“The ICC’s Best Bet: Look to Regional Systems”: UNHR Executive Director’s Critique of the ICC

Originally published in the ICC Forum

Summary:

The International Criminal Court (ICC) has much to learn from other human rights systems—non-Western and Western alike. The lessons, though, are less about tensions between Western and non-Western approaches to law and more about the role of prosecution in response to mass atrocity. We argue that the ICC has overemphasized prosecution and underemphasized complementarity. Regional mechanisms, by contrast, have struck a much more effective balance, especially those in the Americas and Europe. The approach of these mechanisms may have been influenced by non-Western understandings of societal goals after mass atrocity. We counsel the ICC to learn from these bodies and move beyond its excessive focus on prosecution.

Argument:

The ICC has faced, and continues to face, a devastating array of critiques, many legitimate, others less so. With an annual budget approaching $200 million,1 and total expenditures to date of well over $2 billion dollars, the Court has managed to successfully prosecute only a half dozen defendants in two decades of existence. To be fair, the Office of the Prosecutor (OTP) has opened some seventeen preliminary investigations in as many countries (virtually all of them in the Global South).2 But even those numbers make the ICC a costly investment with little concrete return.

Critiques that focus on the Western bias of the ICC—for example, that, to date, only African nationals have been brought to trial and the vast majority of investigations concern situations in Africa—constitute a significant subset of the universe of commentary on the Court. These critiques, while sometimes valid, can distract from the most important challenges the institution faces. Our research and analysis finds that these are tied to the fundamentally mistaken understanding that criminal prosecution by the ICC should be the Court’s primary means for advancing its objectives.3 To be sure, the Court on the whole has more rigorously investigated and prosecuted of individuals from less powerful countries (Global South, primarily African) than more powerful states (European countries, the United States and their close allies). Even after Biden succeeded Trump in office, new Prosecutor Khan seems to have accepted the limits of his position, opting to continue the exclusion of possible U.S. war crimes from the OTP’s Afghan investigation.4 By contrast, the rapid—and justified—response to Russia’s criminal invasion of Ukraine provides fodder for claims that the ICC serves the interests of the powerful at the expense of the weak. While Russia, with its vast nuclear arsenal, is certainly more powerful than the African states whose nationals comprise the bulk of the ICC docket, the ongoing war in Ukraine has demonstrated the former super-power’s weakness. The ICC appears to have assessed as much. And Russia is the lone state outside the Global South among the OTP’s investigations. But all this is a topic for another essay.

Although the ICC purports to be a purely legal entity that engages only in the realm of law, it is in fact a body embedded in an international legal system that is highly unequal and deferential to the interests of powerful actors. The consequence to date has been a docket of investigations and prosecutions that has focused on peripheral states (mostly African) and which provides little or no oversight of powerful states. As Morehouse Professor Oumar Ba has argued, even referrals involving African nationals conform to regional and subregional power politics: in many cases, these referrals, rather than involving other states, have involved political opponents or guerrilla groups within the very states that have referred situations against their enemies.5 Thus, within the African continent, situations investigated reflect power dynamics on the continent and within particular states. On the whole, the caseload of the ICC has responded to global and regional hierarchies in which Western states remain at the top of the pyramid.

It is valuable to ask if these problems might be resolved, or at least mitigated in substantial measure, by ensuring greater representation of non-Western laws, traditions, principles, rules, and practices in the legal structure and system of the ICC. Our inclination is to believe that diversifying the personnel and practices of the ICC are likely to be valuable goals,6 but these measures are unlikely to bring about the kind of significant change the Court needs.

Nonetheless, we will endeavor to engage this question on its terms. To do so, we suggest dividing the possible non-Western-inspired changes into two broad categories: first, changes to the ICC’s rules and legal practices and, second, changes to the Court’s broader understanding of how political and social change work and what role it can play in those processes. We will say relatively little about rules and legal practices. First, neither of us is an expert in substantive or procedural international criminal law. More importantly, in our view, what ails the ICC is not fundamentally a matter of legal procedure.

Our critique is more profound and involves the institution’s understanding of itself and its role—the second category of possible changes. The ills which we believe must be addressed concern the Court’s selection of situations to investigate, the nature and extent of its efforts to promote national-level prosecution and political and social change, and the ICC’s excessive focus on its own prosecutions. The problems the Court faces are about its priorities, in particular its overemphasis on its own investigation and prosecution of individual cases. Relatively little would be gained by modifying the laws or rules of procedure in those prosecutions, including the incorporation of non-Western elements.

However, depending on what one understands to be non-Western understandings of social and political change, and the possible role of an international court in it, those might well improve the Court’s effectiveness. We would wish to tread cautiously in generalizing about “non-Western” societies, concerned about effacing the vast diversity among billions of people spread across most of the world. At the same time, we recognize that common historical experiences—such as under Western colonial rule—may have created some similarities. We thus see efforts (such as this forum) to explore such questions as invaluable. Some analysts have argued that centering criminal investigation and prosecution as a means to respond to mass atrocity is a distinctively “Western” approach. If that is true—a question we feel underqualified to judge—then incorporating non-Western approaches into transitional justice might de-center investigation and prosecution. That approach would dovetail somewhat with our analysis of how the ICC has gone wrong, although it would diverge as well, as we generally support national level investigation and prosecution of crimes within the ICC’s jurisdiction. Non-Western approaches might also overlap with the methods of regional human rights institutions, such as the Inter-American Commission on Human Rights and the European Court of Human Rights. Those bodies are not fundamentally concerned with individual criminal responsibility, but instead with the overall human rights situation in countries over which they exercise jurisdiction.

We have written about these issues relatively recently in the Yale Journal of International Law (YJIL).7 Below, we summarize our essential findings and analysis.

We suggested that the ICC could learn from regional human rights systems. We focused on two of the ICC’s many goals: securing criminal accountability for mass atrocity and preventing its recurrence. We comprehensively surveyed and analyzed research on the effectiveness of the ICC and of regional human rights institutions—the European Court of Human Rights, the Inter-American Court and Commission on Human Rights, and the African Court and Commission on Human and Peoples’ Rights—in advancing those two goals.8 We concluded that the accumulated experience of regional systems provides a roadmap that the ICC might adopt and adapt to enhance its effectiveness. In terms of the question presented in this dialogue, by embracing the traditions, principles, and practices of other human rights systems, we contend the ICC could advance this agenda. In particular, we argued that the ICC has understood its role in a limited and legalistic fashion. Of course, the International Criminal Court is a court and exercises judicial functions. But the Court has the potential to do much more—to stimulate processes in countries around the world by taking its complementary role much more seriously. This, we explained, is what regional rights bodies have done—applying traditions, principles, and practices that focus less on accountability through individual prosecution and more on policy, engagement with civil society, media, and social movements, as well as by working with some authorities.

The ICC […] has focused narrowly on choosing cases and investigating, prosecuting, and judging them—and compiled a record of many failures and few successes. While the International Criminal Court’s prosecutors and judges should improve their performance of these core judicial tasks, they—along with the ICC’sState Parties, who oversee and guide its priorities—also must rethink the Court’s strategy for pursuing its goals. The methods developed by the regional bodies provide invaluable guidance. We contend that the ICC should devote less attention and fewer resources to directly investigating and prosecuting cases and more to catalyzing and supporting actions within States—by investigators, prosecutors, judges, executive-branch actors, and civil society—that yield criminal accountability for perpetrators and reduce the chances that mass atrocity will occur.9

The question posed in this debate seeks to remedy the limitations and failures of the Court through consideration of possible legal flaws derived from an excessively Western legal approach. To the extent that one considers the Court’s excessive focus on prosecution to be Western in nature and non-prosecutorial approaches to be non-Western, then integrating non-legal approaches could help transform the ICC. But we believe that such an approach would be tangential. As we diagnosed in YJIL:

The Court’s leaders and staff have succumbed to a lawyerly temptation to view their role as narrowly judicial and technical, detached from complicated, often politicized, processes on the ground. The ICC must reconceive its place in the multilevel legal and political realm, as a player that exercises influence through a variety of political and legal channels and whose impact depends on its interaction with others.10

Our contention that the Court sees itself as a body focused nearly exclusively on prosecutions is supported by the data. In particular, the priorities of the OTP (until recently, at least) have manifested this priority:

The OTP Situation Analysis Section, which conducts preliminary examinations, had just five to six staff members until 2011—and devoted half its time to work on investigation-stage situations. [Former Prosecutor Fatou] Bensouda has improved matters: by 2018 the unit had thirteen staff who appeared to be focused almost entirely on preliminary examinations. However, Human Rights Watch’s analysis of their workload concluded that this was too few even for the research and analysis tasks necessary in that stage—such as determining whether crimes within the Court’s jurisdiction had been committed—“let alone the steps that may be necessary to engage national authorities in a way that can catalyze national prosecutions.” For 2019, the OTP requested approximately one-fifteenth as much funding for preliminary examinations as for investigations and prosecutions.11

A central element of the approach of regional bodies has been a multi-dimensional view of the role of law in political and social change and a creative and sophisticated understanding of how the bodies themselves can advance such change. The Inter-American Court and Commission, the European Court, and to some degree the African Commission and Court approach their respective mandates with a clearer sense of the political nature of their engagement. This leads them to engage in a far more expansive set of actions, extending far beyond promoting criminal prosecution. To be fair, these bodies are not empowered to prosecute individuals directly. But they could take a narrow view of their function as essentially to adjudicate state responsibility for human rights violations and order a narrow range of remedies. Instead, they have used their powers more creatively to promote accountability and prevent mass atrocity in the future. The Inter-American human rights system and its African counterpart retain Commissions with broad mandates and extensive competencies beyond adjudicating cases. The Inter-American system has been particularly adept at leveraging its many competencies to advance prosecutions in states themselves, as well as truth commissions, reparations programs, museums and other sites of historical memory, and other measures designed to foster truth-telling, accountability, and to create barriers to recurrence of mass violence. The European Court has begun to order a similarly wide range of remedies and has for decades carefully built its authority and influence over states, to the point where the latter have embedded respect for human rights throughout their executive, legislative, and judicial processes to a striking—if still incomplete—extent.

Even if we were to consider the success rate on the dimension of promoting successful prosecutions alone, the regional systems far outpace the ICC on a cost-per-case basis. Alexandra Huneeus has examined the effect of decisions of the Inter-American system, for example, analyzing the connection between sentences ordering investigation and prosecution and subsequent domestic investigations and prosecutions. A comparison of the impact of these Court sentences demonstrates that they have resulted in nearly as many prosecutions as carried out by the ICC, the ICTY and ICTR combined, though with a far more limited budget. Huneeus wrote in 2013:

[T]he Inter-American Court of Human Rights has made national prosecution of gross, state-sponsored crimes a centerpiece of its regional agenda. The Court […] regularly orders states to investigate, try, and punish those responsible for gross human rights violations as a form of equitable relief. Then, through another interpretive twist, it supervises states’ implementation of its orders: it holds mandatory hearings and issues compliance reports that aspire to hasten and guide the progress of national criminal processes. The Court has decreed and is actively monitoring prosecutions of international crimes in roughly fifty-one cases across fifteen states. Pursuant to its orders in these cases, states have launched new criminal investigations, exhumed mass graves, moved cases from military to civil jurisdiction, overturned amnesties, bypassed statutes of limitations, and created new institutions and working methods to facilitate prosecution of such crimes. Indeed, at least thirty-nine prosecutions launched pursuant to the Court’s orders have yielded convictions.12

Far from undermining their work, this appreciation of the politics inherent in international law has led the Inter-American human rights system and other regional bodies to develop processes that seek to leverage their limited power by engaging a broad range of actors in the countries in which they operate as well as in their broader regions.13 Our analysis in YJIL goes into some detail on their successes.14

In fact, as we have noted, the ICC has, in some instances, taken measures to promote accountability through means other than prosecutions. When it has done so, we argue, it has been most effective:

The ICC’s greatest potential impact is indirect, through its support of and pressure on national-level actors who gather evidence of crimes, prosecute perpetrators in national courts, and punish them at the domestic level, and other contributions to dynamics that reduce atrocity or increase accountability. Less promising is the Court’s conventional judicial work of direct investigation and prosecution of particular perpetrators. Its indirect exercise of influence resembles the process by which regional human rights systems work, and matches the philosophy of complementarity that guided the ICC’s creators.15

The kinds of changes the ICC should make are less about non-Western understandings of law and more about understanding—from a Western or non-Western perspective—the role of Courts and the dynamics of change in societies that have experienced mass atrocity. Indeed, in a few rare but important situations, the OTP has engaged in this way with significant success. As we observed in YJIL, in the case of the conflict in Colombia, engagement by the OTP followed this logic to great success.

The ICC’s role in Colombia’s peace negotiations with right-wing paramilitaries and the Fuerzas Armadas Revolucionarias de Colombia—Ejército del Pueblo (FARC) illustrates how ICC activities other than building and prosecuting individual cases can contribute to reducing atrocities and achieving criminal accountability. The ICCProsecutor has kept the Court’s examination of Colombia in the preliminary examination stage for fifteen years, since 2004, rather than upgrading it to an investigation and issuing indictments. Moreno Ocampo, then Bensouda, and their staff have engaged regularly in public and private with the Colombian government, judiciary, and civil society, and modulated their positions as the peace talks have progressed. This flexible, strategic approach has allowed the ICC some influence in a complex, high-stakes peace process. The Court has supported the conclusion of a landmark agreement that could end a four-decade civil war characterized by rampant atrocities, while preserving the possibility of criminal accountability in Colombian courts. As Courtney Hillebrecht and Alexandra Huneeus conclude in their exceptionally subtle study, the ICC’s and Inter-American Court’s effect on the Colombian peace process suggests that “ ‘shadow effects’ [may be] the most important way courts exert influence,” rather than through indicting and prosecuting individual cases.16

The blueprint for successful engagement exists. It requires less emphasis on prosecution and far more on complementarity, incorporating as much as possible, the lessons from regional mechanisms.