Twenty Years On: The ICC and the Politicization of its Mechanisms

The Chief Prosecutor of the ICC, Fatou Bensouda, addressing the Assembly of States Parties to the Rome Statute. (UN Photo/Eskinder Debebe)

Twenty years ago, 120 states adopted the Rome Statute of the International Criminal Court (ICC). The Rome Statute allows for the prosecution of individuals for their involvement in genocide, crimes against humanity, war crimes, and the crime of aggression. The court has been criticized and supported by many governments, and many on both sides have recognized its potential as a tool in achieving political ends. At this twenty-year mark, an examination of the ways in which the court’s work has been politicized points to what can be done to make it a more effective institution.

Over the course of its existence, the referral mechanism has been used by various governments, triggering investigations of the court. Referrals are often used as a way to buttress domestic accountability efforts, for example, the referrals by Uganda, the Democratic Republic of the Congo  (DRC), the Central African Republic, Mali, the Union of the Comoros, and Gabon. In some of these cases, however, the court’s efforts were significantly tainted by politics.

In Uganda, for example, the government of president Yoweri Museveni referred the conflict with the Lord’s Resistance Army (LRA), a rebel movement, to the court—rather than the conflict as a whole. Then-ICC Prosecutor Luis Moreno-Ocampo attracted sharp criticism for taking part in the political game. Critics pointed out that the Ugandan army has committed grave crimes as well and that the ICC Prosecutor should not have aligned himself with Museveni, who seems to have used the referral to send a message to his adversaries.

No case exemplifies the politicized approach to ICC referrals more than the Israeli-Palestinian conflict. Most recently, on May 22, the Foreign Minister of Palestine, Riyad al-Maliki, personally delivered a file to the ICC containing an 18-page document that asked the prosecutor to open an investigation into crimes committed on Palestinian territory. Al-Maliki said at a press conference after the meeting in The Hague, that the referral is an “important and historic step towards justice for the Palestinian people who continue to suffer ongoing, widespread and systematic crimes.”

The recent referral argues that war crimes and crimes against humanity have been committed by Israel and asks for an investigation of “matters related to the Israeli settlement regime,” forcible transfer, murder, torture, persecution, “crimes involving the establishment of a system of apartheid” among others.

The step by the Palestinian government is widely viewed as a measure to increase pressure on Israel, and also on the ICC and the international community to act, in light of an increasingly desperate situation. Palestine became a party to the Rome Statute in 2015 and allowed the court to investigate crimes retroactively dating back to June 13, 2014. Thus, some argue that the self-referral adds little legal value apart from potentially speeding up the process.

In spite of Israel not being a member of the court, since Palestine is a member the ICC can look into crimes that were committed by Palestinian nationals or those committed on Palestinian territory, including alleged crimes by Israeli soldiers. The Israeli government has consistently rejected the ICC’s involvement, even in cases on Palestinian territory. The Israel Ministry of Foreign Affairs characterized the recent referral attempt as “legally invalid.”

Situations such as this make the work of the ICC far more delicate and have the potential to taint its effort with bias. The activities of the court so far in the Israeli-Palestinian situation, for example, have been limited to a preliminary examination, which means no perpetrators have been identified and the prosecutors establish only whether the legal requirements for a full investigation are met. ICC Prosecutor Fatou Bensouda stressed that a referral by a government “does not automatically lead to the opening of an investigation.” In July, however, the judges ordered the court’s administrative body to start its outreach and communications activities with the Palestinian people—a decision that is seen as a sign the ICC is stepping up its engagement in the region.

Given the timeline of recent events in the Israeli-Palestinian situation, allowing an investigation into crimes committed after June 13, 2014, could be viewed as creating bias. On June 12, for example, Israeli teenagers were abducted and killed by Hamas, while on June 13, Israel started a wave of house searches and arrests, and several days later launched Operation Protective Edge.

No matter the way in which the referral mechanism is used, the ICC Prosecutor acts independently and chooses the focus of any investigation. Prosecutors are not bound by the list of crimes a government mentions in a referral. Therefore, they can also decide to investigate additional crimes committed by state authorities, which creates a risk that referrals would backfire. However, since the court is dependent on the cooperation of states, for example when it comes to accessing crime scenes or carrying out arrest warrants, governments still have a lot of power to decide when to cooperate and which side of a conflict they want to see prosecuted.

The various situations demonstrate the fundamental dilemma of the court: that of the difference between its legal mandate and the politicized reality. While the ICC was established as an impartial court, its possibilities to act are in reality limited and shaped by political interests. The court has navigated this dilemma by carefully balancing the ideal—an apolitical approach merely based on the law—and a more realistic approach, thus, accommodating the interests of the governments involved. In Ivory Coast, for example, the ICC started with issuing indictments against members of the opposition and later moved to also investigate crimes allegedly committed by persons linked to the sitting government. The expansion of the investigation has not yet resulted in new indictments. Thus, so far there has been no situation where the ICC was given the ability to function completely independently and which led to concrete results. In cases where the prosecution tried to emancipate itself from the interests of those in power—like in Sudan and Kenya—it failed.

While the ICC continues to reiterate that it is a legal body, basing its decisions on nothing but the law, it should acknowledge more plainly that it operates in highly political contexts. This would reflect the realities more accurately and increase understanding of the functioning and limitations of the court.

Benjamin Duerr is an international criminal law analyst based in The Hague. He tweets at @benjaminduerr.