Legitimizing the International Criminal Court

By Luis Bravo
Luis Bravo is a sophomore at the University of Pennsylvania studying Sociology.

Tags: ICC, War Crimes, International Relations

In November 2017, the International Criminal Court (ICC) made headlines by deciding to investigate the United States for war crimes and potential crimes against humanity in Afghanistan. A report by the ICC’s Chief Prosecutor, Fatou Bensouda, alleges there is reasonable basis to believe the United States’ army tortured at least 61 prisoners. The report also  states that the CIA carried out similar actions with at least 27 other detainees. [1] This latest move comes amidst allegations that the ICC fails to prosecute wealthy, industrial nations, instead focusing its efforts on African countries. While the investigation is not expected to yield charges, a more assertive International Criminal Court has the potential to bolster the failing institutions’ legitimacy and establish the ICC as a powerful deterrent against war.

The ICC is an international court that prosecutes crimes against the international community like genocide, war crimes, and crimes against humanity. [2] It was established in July 2002 after the adoption of the 1998 Rome Statute, which outlines the ICC’s jurisdiction as well as its rules and procedures. [3] The ICC is not meant to replace national courts. Instead, it is designed take action on crimes that the country in question has supposedly failed to reasonably address. While over 120 countries have signed the treaty, the United States has not yet ratified it. During the Clinton administration, the treaty received a considerable amount of support from the president. This changed during the Bush administration, which refused to support the institution. Though the Obama administration demonstrated a greater commitment to support the court, neither Clinton nor Obama were able to pass the Rome Statute through Congress, allowing the United States to comply with the ICC’s requests at will. [4]

The lack of support is only one of the multiple challenges the ICC has faced throughout the years. Critics of the ICC argue the institution promotes neocolonialism by serving as an extension of Western influence, much like the United Nations. Many cite the disproportionate number of African autocracies prosecuted as evidence of this notion. While recent hirings have attempted to counter this trend, many feel that cases against countries like the United States are long overdue. Moreover, others criticize the structure of the ICC, which lacks an appeals process and prevents more widespread action. In fact, since its establishment (and nearly 1 billion dollars in funding) only 23 cases have been prosecuted. But perhaps the greatest concerns stem from the existence of the court itself. Many countries have been hesitant to support an external international judiciary system because of the perceived threat to state sovereignty. [5]

Even though many large countries have failed to ratify the Rome Statute, it is clear there is widespread support for a  international peacekeeping system to prevent war and secure peace. In spite of its  many disagreements with the United Nations, the United States will undoubtedly continue supporting the institution for  years to come. While the investigation into war crimes in Afghanistan committed by the US might hinder support for the organization, this could bolster the ICC’s legitimacy overall by proving that it is truly an independent organization, free from the influence of Western countries. This could be especially reassuring for many African nations who have led the opposition and in many instances, even threatened to withdraw their support from the court. However, for the ICC to be viewed as a truly vital organization it must demonstrate its power in the international community as a broker for peace. To do so, it must take a more assertive stance in investigating and prosecuting crimes outlined in the Rome Statute. While this process will be facilitated once the court’s powers are expanded with the adoption of Article 8 which outlines “crimes of aggression,” being more transparent about its procedures and conducting wider investigations could be beneficial in garnering support in the short term. Only by establishing itself as a vital component in achieving global stability will the International Criminal Court convince countries like the United States to support its existence. Until then, the ICC should do everything in its power to continue surviving and hope advanced industrialized countries recognize its important purpose in the future.

​[1] Kennedy, Merrit. “ICC Prosecutor Calls For Afghanistan War Crimes Investigation.” NPR.org. Accessed February 13, 2018. https://www.npr.org/sections/thetwo-way/2017/11/03/561842662/icc-prosecutor-calls-for-afghanistan-war-crimes-investigation
[2] Human Rights Watch. “International Criminal Court.” Human Rights Watch. Accessed February 7, 2018. https://www.hrw.org/topic/international-justice/international-criminal-court
[3] Advanced Training Program on Humanitarian Action at Harvard University. “Understanding the International Criminal Court.” Text. ATHA, September 16, 2012. http://www.atha.se/content/icc-understanding-international-criminal-court-may-2011
[4] Global Policy Forum. “US Opposition to the International Criminal Court.” Accessed February 7, 2018. https://www.globalpolicy.org/international-justice/the-international-criminal-court/us-opposition-to-the-icc.html
[5] World Beyond War. “Strengthen the International Criminal Court,” March 8, 2015. http://worldbeyondwar.org/strengthen-international-criminal-court/
Photo Credit: Flickr User pilot_micha

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