The ICC celebrated its ten year anniversary recently. The very existence of the ICC today is commendable; given the hostility it faced from the United States and other powers. The ICC has contributed a space that supports global justice and human rights. Protesters often call for dictators to be referred to the ICC- a testimony to the powerful appeal of the court. While the ICC some distance to go to achieve impartiality, the author of this article lauds the ICC for its accomplishments in a complex world.
By Mark Kersten
The ICC recently celebrated its tenth anniversary amidst heavy criticism of its international role and impact. Some of the criticism is valid, a lot of it misrepresents the mandate and role of the ICC. Regardless, in this context, after some time mulling over what the ICC has achieved in the first few years of its existence, I’ve come up with a list of three largely neglected achievements of the Court. I have a feeling they won’t be to everyone’s fancy, but while the ICC is very far from perfect, hopefully this post can highlight or bring to the fore a few issues which, in my mind, make the ICC – as an idea, institution and, above all, project – remarkable.
1. It Exists
It is all too easy to forget that it wasn’t a given that, ten years after it was created, the ICC would actually still be around. I remember the Court’s President Judge Sang-Hyun Song declaring that when he was sworn in, he and other judges did privately expressed their skepticism that the Court could survive the political climate of international relations.
There was every chance that states would rip this novel institution apart before it could get a hold on its place on the global stage. But the ICC managed to withstand political forces pulling it in a multitude of directions. Most dramatically, the Court survived the outright and active hostility from the world’s most powerful nation. Throughout the ICC’s formative years, the US creatively and consistently sought to undermine the prospects of the ICC being effective by pressing states into signing Bilateral Immunity Agreements and by passing the ‘Hague Invasion Act‘. Surviving such aggression and trucking on in the face of opponents like John Bolton is a pretty sweet feather in the ICC’s cap.
Somewhat ironically, the demand that the ICC have an impact on [insert pet project here] and have [insert ICTY's caseload] number of cases concluded is a testament to just how far the Court has come. Today more typical demands courts can be made of the ICC in terms of conviction rates and international influence. It wasn’t always the case. The Court’s most consistent and vehement critics emphatically claim that the ICC needs to have more cases – whether outside Africa or in places it can’t go, like Syria – yet it wasn’t always clear that ICC judges would ever see any cases.
Importantly, I don’t believe reminding observers that the Court’s existence as a functioning international judicial institution wasn’t a foregone conclusion is grasping at straws. It’s a reminder. The Court, as a project, needs to be judged within the context, and against the record, of its lifespan, not in a cross-section of time, ten years on or whatever it may be.
2. It Shapes People’s Demands
Not only does the ICC exist – it appears to be at the vanguard of global and regional human rights and democracy movements. It is not just that demands for justice, human rights and accountability have been particularly pervasive in recent months and years – it’s that these demands are coming from places few imagined they would. I don’t think anyone could have predicted pre-2011 that protesters across the Middle East and North African would take to the streets demanding that their autocratic despots be sent to the The Hague. Yet that’s exactly what’s happened.
In a recent op-ed, Richard Dicker of Human Rights Watch observed that:
“Today the signs carried by Syrian protesters demanding “Assad to The Hague” are powerful testimony that the court is making its presence felt.”
Similarly, Lydia Polgreen noted that:
“protesters in Yemen, Bahrain, Libya and Syria have demanded that their leaders be sent to The Hague for trial, testimony to the court’s wide resonance.”
Of course, this isn’t to say that the provision of ICC justice is all hunky dory. Indeed, both Dicker’s and Polgreen’s pieces have the word “flawed” in them. Moreover, the political controversies enveloping the Court have been covered many times in posts at JiC. But still, it is impossible to deny the extent to which international criminal justice has shaped how oppressed citizens communicate their grievances and express their vision of how to do away with repressive governance.
3. Talking about Justice
In my view, perhaps the greatest achievement of the ICC is that it has been instrumental in creating a global discussion on justice in the wake of massive human rights violations and atrocities. This is what has drawn so many, including myself, to the Court and its mission. In JiC’s first-ever post, indeed, its first ever sentence, I quoted Karl Marx’s insight that
“the criminal produces not only crimes, but also criminal law, and with this the professor who gives lectures on criminal law.”
Extending this observation, the international criminal has also created a permanent international criminal court, this very blog and a global conversation about the limits and scope of justice.
Moreover, international relations today is, to a significant extent, about how to achieve justice, for whom and when. Increasingly, peacebuilding and conflict resolution processes are interwoven with those of post-atrocity justice. The permanency of the ICC appears to be making this process itself permanent.
This doesn’t mean, of course, that international commitment to justice and accountability is always sincere. There are seemingly as many abuses of the term justice as there are examples of where it is achieved; as many injustices ignored as addressed.
Nevertheless, regions that have suffered under years of repression and violence are often now at the forefront of conversations about post-atrocity justice. Take, for example, the case of northern Uganda, whose citizens have an incredibly sophisticated knowledge of transitional justice, a knowledge that has not only shaped the region but the world’s understanding of international and local justice. The people of northern Uganda engage in a sophisticated discourse about what justice is possible to achieve in transitional states and how transitional justice mechanisms fit – and don’t fit – together.
Of course, just being in existence isn’t enough. Neither is simply shaping the demands and grievances of oppressed peoples. The Court will be judged, to a large extent, on the expectations it has created for itself: that it would be universal, that it would be impartial, that it would not tether itself to power politics. One could argue it is none of those things. Not yet. But it’s still early days.