By Emily Cody
On 17 July 2024, the world commemorated the 26th anniversary of the adoption of the Rome Statute of the International Criminal Court (ICC). Despite the establishment of the ICC, justice remains elusive for victims of mass atrocity crimes across the world.
International Criminal Justice Day 2024 gives time to pause and reflect on the evolution of international justice and how it can fully live up to its potential and effectively deliver accountability. Despite valid criticisms of the ICC, civil society continues to work tirelessly for a better functioning court that can reduce impunity for the most serious crimes globally.
There have been significant gains: to date, the ICC has initiated 32 cases and convicted ten individuals. The Rome Statute establishing the ICC also codified conflict-related sexual violence as a crime against humanity, building upon the historical precedent set by the International Criminal Tribunals for Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR). Universal norms surrounding crimes against humanity were established through the Rome Statute, and have formed the basis of ongoing negotiations between UN member states on drafting a convention solely defining their scope.
The ICC has been complemented by regional mechanisms for response, such as the Malabo Protocol, and increasing use of universal jurisdiction. A number of fugitives from justice have been arrested and tried abroad, such as Syrians tried in European courts. These positive developments at the regional level could be further encouraged by bolstering national and regional institutions, particularly in instances where the work of the ICC is highly politicised and states might be more amenable to cooperating with regional bodies. Domestication of provisions of the Rome Statute into national law can pave the way for greater national action. States have also engaged with the International Court of Justice (ICJ), with South Africa bringing a case before the ICJ for Israeli violations of the Genocide Convention in the Occupied Palestinian Territories and several states petitioning to join the case.
Despite these promising developments, serious concerns remain. Member States and others have raised concern of double standards. The ICC has been accused of bias in the selection of cases, focusing on Africa, while failing to bring cases against powerful states implicated in mass atrocity crimes, such as the US and UK. The Ukraine case, while very much welcome and deserving of ICC attention, increased the perception of double standards with an outpouring of voluntary contributions by ICC States Parties that facilitated the rapid issuance of arrest warrants, suggesting an elevation of Ukrainian victims over others globally. The US eventually cooperated with the ICC on the Ukraine case, only to congressionally sanction the ICC in June 2024 after ICC prosecutor Karim Khan announced that there were “reasonable grounds” to believe that Israel had committed war crimes and crimes against humanity in Gaza.
In many cases, victims’ hopes for accountability have been dashed: in a vignette from Darfur in 2008, an observer noted that several children born in internally displaced persons (IDP) camps had been named “Ocampo” after ICC Prosecutor Luis Moreno Ocampo. Nearly twenty years later, only one suspect, Ali Muhammad Ali Abd-Al-Rahman, commonly known as Ali Kushayb, has faced trial after voluntarily turning himself over to the ICC in 2020. Other indictees, including the former President of Sudan, Omar al-Bashir, remain at large. Perpetrators of international crimes in the current crisis have been enabled by the culture of impunity in Sudan, with both leaders of the belligerents, Abdel Fattah al-Burhan of the Sudanese Armed Forces and Mohamed Hamdan Dagalo (“Hemedti”) of the Rapid Support Forces, implicated in mass atrocities committed in Darfur in the early 2000s. While the obligation of State parties to cooperate with the ICC is clear within the Rome Statute, enforcement of cooperation has been problematic, with mechanisms for findings of non-compliance through either referral to the ICC’s Assembly of States Parties (ASP) or to the UN Security Council often not being fully utilised.
Notably, though the ICC already had the mandate to investigate crimes in Darfur through the UNSC referral on the situation in 2005, the ICC was silent for three months following the outbreak of widespread conflict in Sudan in April 2023, until the Prosecutor announced renewed investigations in a briefing to the UNSC, and acknowledged ongoing impunity by stating that “the disregard for international legal obligations, and the connected absence of any meaningful justice for the serious crimes committed in Darfur twenty years ago, have sown the seeds for this latest cycle of violence and suffering”. Despite calls from Sudanese civil society to extend the mandate of the ICC to the entirety of the country, the focus of the investigation remains solely on Darfur.
While acknowledging these legitimate criticisms, it is important to remember the potential of the ICC and in particular, acknowledge the contributions made by civil society in rectifying them. There is a need to clarify what double standards are and understand how they can be addressed: as one key informant to research by Atrocities Watch Africa put it, invoking perceptions of double standards is not “a very sophisticated argument” without exploring what that actually means and what reform would actually entail. For example, the perception of lack of support for the ICC by African states needs to be critically examined. African states were initially some of the loudest voices calling for the establishment of the ICC, and despite a 2017 African Union resolution threatening en masse withdrawal from the ICC, this never materialised.
Efforts at reform have also happened institutionally, with an Independent Expert Review (IER) established in 2019 and findings issued in 2020 providing recommendations on the selection of cases, ensuring adequate budgetary allocations, recruitment of high-calibre staff, cooperation with “intermediaries” to cases, and legal aid to indigent indictees, amongst others. African states, led by Sierra Leone, made significant contributions to the IER by collating all AU decisions and resolutions made regarding the ICC since 2002. At present, the IER has moved towards implementation, and there has been greater collaboration by the ICC with civil society following criticisms that the current Prosecutor does not engage to the same level as his predecessor, Fatou Bensouda, and that the ICC traditionally engages with “big organisations that have a seat at the table”. Nonetheless, more consultations should take place to establish stronger avenues for engagement and acknowledge the indispensable role civil society plays. Guidelines have also been established on ensuring the security of intermediaries, who facilitate access to witnesses or other key actors, and a toolkit has been launched with practical guidelines on documentation for mass atrocity crimes aimed at strengthening the collection and preservation of evidence. Additionally, the IER noted the dual entity nature of the ICC as the Court and as an international organisation (IO) comprised of the Assembly of States Parties (ASP) as prescribed in the Rome Statute. Stakeholders and representatives of the ICC Court/IO generally understood the vision of the ICC operating as “One Court”, a principle that details close cooperation while still maintaining the judicial independence of the ICC. The ASP performs a valuable management oversight and legislative function, and to enhance these contributions, the ASP adopted a 2023 “Omnibus” resolution which includes practical measures to ensure the “consistent implementation of the Court’s mandate across the situations and cases under its jurisdiction in the interests of justice and the victims’ right of access to justice”.
Civil society has valiantly and tirelessly striven to deliver meaningful justice to victims of mass atrocities, documenting crimes, advocating for victims in domestic courts, regional mechanisms, international tribunals, and the ICC, and engaging in initiatives to strengthen the work of these institutions. International Criminal Justice Day provides an opportunity to celebrate their victories and contributions,and mobilise support for sustained engagement of advocates and victims to contribute to areas of improvement for the ICC and deliver the accountability that victims so desperately want.
