The International Criminal Court: A Time for Consolidation

Commentary

Eight years ago countries across the world backed the launching of a permanent International Criminal Court to bring those who commit mass atrocities to justice. The ICC is up for review, starting on 1 June in Uganda. The biggest question on the table is: should the ICC have jurisdiction over the crime of aggression?

Eight years ago countries from across the world backed the principle of accountability for mass atrocities by launching a permanent International Criminal Court.  Since then the ICC has accumulated a strikingly lop-sided record.  It has shown itself a potent force in world affairs, by issuing an arrest warrant for a sitting head of state in Sudan, attracting debate about a possible role in Gaza, and launching a heated argument about the balance between peace and justice for the brutal Lord's Resistance Army in Uganda.  What the International Criminal Court has not yet done is to complete a criminal trial; indeed only two trials are even underway. 

It is easy to take pot-shots at international courts for the slow pace of their proceedings, and it would be inappropriate in this case.  The ICC was a new and innovative institution, set up from scratch with limited resources and no power to arrest suspects itself.  Although there have been missteps from the Prosecutor, it was always likely that the process of building cases and gaining control of the accused would take time.  Equally, the political impact the ICC has achieved is testimony to the power of the idea it represents and the radical implications of putting an independent Court enforcing individual accountability at the heart of the international system.  But there is no denying that the political repercussions of the ICC have so far outstripped its judicial accomplishments.

Now the record of the International Criminal Court is up for assessment.  In Uganda next week the states that are party to the Court will gather for its first review conference.  The agenda includes a discussion of possible amendments to the Court's statute and a stocktaking of how the Court is working.  For the ICC's supporters, this is an opportunity to help the Court with the process of building its credibility and gaining international support.  Equally, the conference should avoid anything that would weaken the institution at a critical phase of its development.

The most divisive question at the review conference will be whether to give the ICC jurisdiction over the crime of aggression.  Launching an aggressive war was recognized as an international crime in the Nuremberg Trials after World War II, but no tribunal since then has had the power to prosecute individual defendants for this charge.  The ICC's statute included the crime, but put off the difficult question of how it should be defined and how cases should be initiated.

Some countries are concerned that the work of the Court would inevitably become politicised if individual states could call on it to investigate supposed acts of aggression against them.  For this reason, a number of these countries would like the UN Security Council to act as gatekeeper, so that cases for aggression could only go ahead with its approval.  But other states, above all in Africa and the rest of the developing world, think the Security Council already has too much control over the ICC's action and would strongly oppose an increased role for it.

There are real reasons to be concerned about the effect that open and "unfiltered" jurisdiction over aggression would have on the ICC at this early stage of its development.  The rest of the Court's work could be overshadowed and its impartiality called into question. But putting all control over these inherently political cases into the hands of the Security Council would not serve the Court well either.  It would undermine the idea of the Court as an independent body that doesn't only serve the interests of the great powers.  At a time when all five of the Court's active investigations are in Africa, it would be foolhardy to take an unnecessary step that gives fuel to African charges of political bias.

The ICC was from the start a cherished European objective: Italy hosted the conference that launched it, and the Court now sits in The Hague.  European countries are more than ever the Court's most active supporters.  Now the challenge for European countries is to act together to strengthen the Court by preventing a course of action that would undermine its independence and universality.  There is no need to reach a decision on aggression at this conference, and the wisest path would be to wait until the Court's foundations are more solid and it has a more substantial record to look back on.

The European Council on Foreign Relations does not take collective positions. This commentary, like all publications of the European Council on Foreign Relations, represents only the views of its authors.

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