Hira Bahadur Thapa

Created in 1998, the International Criminal Court (ICC) is the world’s first permanent court of its kind. The holds those responsible for their crimes and helps prevent such crimes from happening again. It investigates gravest crimes of concern for humanity.
This is why former UN Secretary-General Kofi Annan declared that the ICC is a gift to future generations. Genocide, war crimes, crimes against humanity and crime of aggression are being investigated by this international court.

Governing treaty
In order to bring the perpetrators involved in the aforementioned crimes of grave concern to book, the UN member countries adopted the Rome Statute, the sole treaty that governs ICC. Since July 2002, ICC has become operational having obtained required ratifications. However, its records of almost two decades have hardly been up to members’ expectations.
Despite the need for global efforts to render the court effective in achieving its goals of making all those perpetrators of crimes responsible and face convictions, narrow national interests have hindered the court’s membership.
Majority of members of the UN have ratified the Rome Statute. But some very powerful and populous nations have yet to endorse the treaty. The US, Russia, China, and India are among them. Their parochial interests are the hindrances to become members.
Interestingly, the US had been deeply interested in the permanent criminal court in the beginning when it was active in the negotiations of the court’s rules and procedures. These rules and procedures are uniquely drafted. As per them, ICC can only investigate acts committed by Americans within the territory of an ICC member state, if the US authorities decline to investigate and prosecute those acts.
In fact, the US benefits from its leading role in developing and complying with international law and from the institutions that help enforce that law. This conviction should have prodded the American leadership to support international tribunals that came into being in the wake of Cold War.
The examples are the international tribunals in Rwanda and former Yugoslavia which would hardly have been effective without the US’s cooperation. The difference between these tribunals and ICC is that the tribunals’ investigations and prosecutions were confined to their territories, whereas the latter’s jurisdiction is worldwide. Nevertheless, the tribunals played important roles in punishing the criminals in Rwanda and former Yugoslavia for crimes committed in ethnic conflicts that occurred in the mid-1990s.
Built on the precedents of trials of German and Japanese leaders after World War II, the Rwanda and former Yugoslavia independent tribunals justified their establishment with due support from the US. Their success signaled to the world community that taking the law seriously ensures that there are consequences for its gross violations.
There are allegations that the ICC prosecutor has been sometimes intimidated to influence the court’s investigative acts against the American servicemen engaged in Afghanistan. The US government’s sanctions against some court personnel, including the chief prosecutor Fatou Bensouda, whose US visa has been revoked, are seen as an attempt to prevent the ICC authorisation for launching the investigation in Afghanistan.
The rejection of a prosecutor’s request by the 2019 April ICC judges to launch an investigation into alleged war crimes, and crimes against humanity committed primarily in Afghanistan in 2003 and 2004 by the Taliban, Afghan government forces and the US soldiers, is considered as a concession to Washington’s pressure.
Based on some evidences, the criticism of the US behaviour towards ICC is not altogether unjustified. The court’s strengthened role can help ensure the successful fight against impunity. Nonetheless, we cannot ignore the reality on the ground that exposes the court’s lack of desirable achievements. Disappointingly, ICC has produced three convictions for war crimes and crimes against humanity that have survived appellate review so far.
Beyond a poor record at trial, the ICC proceedings take an unduly long time. Before requesting authorisation to launch an investigation, the prosecutor had been engaged in a preliminary examination of alleged crimes in Afghanistan for more than a decade. Similarly, the 2014 war in Gaza and the situation in the Israeli-occupied Palestinian territories have been the subject of ICC inquiry. The investigation of criminality into the 2008 conflict between Georgia and Russia has been underway since 2016 with little to demonstrate.
The delayed investigation and prosecution do not mean that ICC has been a misplaced priority. Indeed, it was born in the heyday of post-Cold War optimism that swept the world in the 1990s. Had it not been for ICC, there would have been no conviction for perpetrators like the Sudanese, former president Omar al-Bashir, and former Congolese vice president Jean-Pierre Bemba for crimes his troops had committed in the Central African Republic.

Cooperation
We should not forget that the ICC needs member states’ due cooperation in facilitating the investigation and collection of evidences. Even ICC member states have offered only tepid and inconsistent support. Some members have accused ICC of being pro-Western imposing double standards. Their dissatisfaction is understandable.
Notwithstanding this, as a court of last resort where cases are prosecuted and states are unwilling or unable to do so themselves, ICC may be the only available process for holding perpetrators of crimes to justice. Conspicuously, ICC upholds the principle that “no individual or government is above the law”.
Letting this institution die for lack of member states’ support would weaken our efforts to fight impunity. All the UN member states should join hands to make it effective so that it becomes a boon to humanity by delivering a message that law prevails over brute force.

(Thapa is a former foreign policy advisor to the Prime Minister from 2008 to 09. thapahira17@gmail.com)