“We hope it will deter future war criminals and bring nearer the day when no ruler, no state, no junta and no army anywhere will be able to abuse human rights with impunity.” On the surface, Kofi Annan’s optimistic speech at the opening of the International Criminal Court on 1^st July 2002 rings hollow. In the twenty years since its establishment, the ICC has successfully convicted only ten individuals; many more have either been acquitted, had the charges against them dismissed, or remain fugitives unlikely to ever be brought before the Court. Progress is often slow, and accusations of a Euro-centric outlook have damaged the Court’s relationships with other continents. Few observers would doubt that much needs to be done to improve both the Court’s effectiveness and its public image.

And yet, the establishment of the ICC remains one of this century’s most consequential moments in geopolitics. It is the only international organisation with the ability to hold individuals accountable for charges such as crimes against humanity, war crimes, and genocide. This is a major advancement in international law, considering other courts (such as the UN’s International Court of Justice) only deal with states rather than individuals. By separating leaders from the countries they rule, the Court emphasises personal responsibility in a way that has not been done before. Also, the Court’s demonstrated determination to prosecute has been noted by some scholars as contributing towards a reduction in violence against civilians. In the 21^st century, no one, including heads of state, are above the law.

To say the ICC’s relationship with Africa has been rocky would be an understatement. Initially, many African states were supportive of the Court’s aims and actively engaged with the negotiations that led to the Rome Statute (the charter on which the ICC was founded). The Central African Republic, the Democratic Republic of the Congo, and Uganda even self-referred themselves once the Court was up and running. However, many African states began to take exception with the Court’s apparent focus on the continent at the expense of other investigations. Indeed, of the eleven cases currently being investigated by the ICC, ten are in Africa. (It should be noted, however, that preliminary investigations are taking place elsewhere, including Afghanistan, Palestine, and Venezuela.) 2009 marked a defining moment both for the ICC and its relationship with Africa: Omar al-Bashir, then-President of Sudan, became the first incumbent head of state to be indicted. According to Christopher Stephen, the event ‘split the international community.’

The indictment of al-Bashir was controversial for several reasons. Sudan was not a member of the Court because it had not signed the Rome Statute. However, even if a state is not a signatory, the ICC can still conduct an investigation if the United Nations Security Council asks them to. The UNSC’s power to refer cases to the Court has been fiercely criticised; in essence, it has the power to make a nation subject to the terms of a treaty it did not agree to. The manner in which al-Bashir was indicted understandably raised concerns that Sudanese sovereignty had been violated, and the African Union openly accused the Court of being biased against them.

The power held by the UNSC raises another valid criticism of the Court. In their capacity as members of the Security Council, China, Russia, and the United States have the power to refer cases to the Court – and yet, none of them are members. China has never signed the Rome Statute, and Russia and the U.S. subsequently withdrew their signatures. When the South African government announced its intention to withdraw from the Court in 2016, it specifically mentioned this contradiction and accused the world’s major powers of refusing to obey the rules of a game they themselves had created. It is vital that these nations ratify the Rome Statute and become full members of the Court; otherwise, the ICC will continue to struggle to justify its legitimacy.

Evidently, the International Criminal Court has faced difficulties which are unlikely to vanish any time soon. Work needs to be done to counter accusations of bias, some of the world’s major powers need to be convinced to join, and the Court’s prosecutor needs to work more efficiently so that cases can be pursued as quickly as possible. However, these are all achievable aims and the international community should work together to ensure they are implemented. Those responsible for crimes against humanity, war crimes, genocide, and crimes of aggression must be held accountable. The ICC provides the only route where that can happen, making it an invaluable factor in 21^st century geopolitics.

Bibliography

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Clifford, Cayley, ‘Justice Beyond the International Criminal Court: Toward a Regional Framework in Africa’, South African Institute of International Affairs, 2019, 1-24.

International Criminal Court [online], ‘About the Court.’ Available at: https://www.icc-cpi.int/about/the-court. [Accessed 11/6/22].

Jo, Hyeran and Simmons, Beth A., ‘Can the International Criminal Court Deter Atrocity?’, International Organization, 70 (3), 2016, 443-475.

Moffett, Luke, ‘Elaborating Justice for Victims at the International Criminal Court’, Journal of International Criminal Justice, 13 (2), 2015, 281-311.

Simons, Marlise, ‘Without Fanfare or Cases, International Court Sets Up’, The New York Times, 1^st July 2002.

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