International Court in Crisis

My last blog highlighted a crisis in international law relating to peace and security. The International Criminal Court (ICC) is the newest instrument in the peace and security toolbox. Twelve years ago I opened its doors as head of the ICC Advance Team and it’s now 10 years ago since I left the Court. There can be no doubt that it is also part the crisis.

The idea itself is still vulnerable: that peace and security will be more likely and lasting with the knowledge that you will be punished if you commit or actively support atrocities crime (the preventative effect) and, secondly, that victims and societies will be healed because truth is established and the perpetrators are punished. Both assumptions feel intuitively right but they are as yet unproven and we don’t know yet how it works. There are correlations, but the lines are never straight or continuous. The sales pitch that the ICC is there to ‘put an end to impunity’ is a dangerous case of oversell that can only backfire. It is doing just that: 12 years into the life of the court, in the age of ‘never again’ and ‘ending impunity’ we have had the likes of Sri Lanka, Iraq, Gaza, Syria, and IS. There are sound technical legal-jurisdictional reasons that the ICC is not everywhere but that lawyerly stuff does not stop the erosion of the grand justice visions of 2002.

Its track record also raises questions. The amount of convictions by the ICC stands at 2. That’s not much in 12 years. The geographical distribution of investigations uneven: a Martian coming from outer space who looks at the Court’s website will be forgiven from thinking that all bad people come from Africa. Some data from the ICC’s website:

  • The ICC has a docket of 21 cases from 9 situations in 8 countries (the Court does not equal ‘situations’ with ‘countries’). All these countries are African.
  • 4 of those are so-called self-referral cases, meaning that the government of the country in question referred the case to the Court: Uganda, the Democratic Republic of Congo, the Central African Republic, and Mali.
  • 3 of those are referrals by the Security Council: Sudan, Darfur, and Libya.
  • Only 2 are investigations started by the ICC Prosecutor himself (after authorization of the pre-trial chamber): Kenya and Cote d’Ivoire.
  • The 2015 budget document tells us that the Prosecutor has 4 situations under preliminary examination on subject-mater issues: the Mavi Marmara incident, Honduras and, more recently, Ukraine and Iraq. She has 5 situations under analysis focusing on the examination of admissibility/ complementarity: the situations in Afghanistan, Colombia, Georgia, Guinea, and Nigeria.

The criticism (mainly from African leaders) that the ICC Prosecutor is selective towards that continent clearly does not tell the whole story. African choice at two levels has had a clear role in focussing the Prosecutor’s attention: firstly, at the level of ratifying the ICC Statute – 34 African ratifications, more than any other geographical area – and secondly at the level of referrals. The most that can be said is that the Prosecutor (or Pre-Trial Chamber) should, more often, have concluded not to indict anybody after referral of a situation or that the Prosecutor should do more investigation of her own accord outside Africa.

Going deeper, the record is mixed. Of the total of 31 persons who have encountered the Court there are 2 convictions, 12 in custody awaiting trial on trial or, 1 pending execution of arrest, 3 released, 1 off the hook pending national trial, 3 people confirmed dead, and 9 fugitives. The deaths and the fugitives (a total of 11) are beyond the court’s control. As I said: the ICC does not have a police force and is entirely dependent on States Parties for arrests. 3 releases is not brilliant, but also not a dismal track record for a prosecution service.

The length of the proceedings and time things take is an issue: 3-4 years is normal. The ICC’s dreams and assumptions have been wrapped with heavy and complex procedures – designed by the States Parties. Normally, one would innovate procedures to better fit the mission. Innovating justice procedures is already very challenging at the national level. Within the ICC system it is like getting to peace in the Middle East. The Court itself can only change and innovate to a degree (mainly administratively, below the level of the Statute and the Rule of Procedure and Evidence). The main parameters are set by the States Parties and it is difficult, if not impossible, to innovate anything there: a fragmented group of 122 countries must agree on that.

The budget also tells a story, although one must always be careful here. Justice is not a business, comparisons are difficult to make (the ICC has 122 places of work, the Rwanda tribunal only had one; the Special Court for Sierra Leone was funded by voluntary contributions, etc.) and conclusions not easy to draw. With that caveat, some data nonetheless: the ICC’s proposed budget for 2015 is €135.39 million – in increase of 11% over the 2014 budget. That may seem a lot but by comparison to UN specialized agencies it not. The 2014 – 2015 budget of the International Labour Organisation is around €620 million. The World Health Organisation’s is around 5 times that. The annual ICTY budget for 2012-2013 was higher: the equivalent of around €195 million. The total costs of ICTY and ICTR are not easy to pull together (there is no ‘costs to date’ page on their websites), but have been estimated at just over 2 and just over 1 billion US dollars respectively during roughly 20 years. The ICTY has been described US$14 million per conviction and the ICTR as US$11 million per conviction. The Special Court for Sierra Leone was a relative bargain: 11 years, 9 convictions, US$ 300 million. Justice is clearly not cheap.

In short, the badly needed justice component of the world’s peace and justice architecture needs a lot more work. Some radical ideas that came to me on a Saturday morning: (1) States Parties: set up a Global Justice Research Fund to support a well directed and sustained quest for multidisciplinary knowledge about the core idea of a justice component and how it can be achieved: what are the components of justice connected to atrocities, what is connected with what, what tools can be developed to measure and learn, and how can we make better use of technology. (2) States Parties and Court: create innovation space to enhance effectiveness and efficiency, so procedures can be continuously be innovated based on what the Research Fund is able to unearth; (3) Court: develop and maintain Google and Apple-like innovation capacity. Smart, creative, critical teams that are constantly working to innovate, to be better, to offer more. (4) Court: improve your communication and outreach. Throw out your challenges to others. Involve them. Speak the language of those you serve. And work on your website: it’s not very good for somebody who wants to write a column like this.

* I thank Dominique Vleeskens for helping me with the data research.


  1. Skeptic of justice business-men

    Mistakes in your piece:

    5 situations are referrals by States Parties, not 4. CAR has 2 referrals, just because there is still hope.
    2 (not 3 situations) are Security Council referrals. You know that Darfur is in Sudan so that makes it one situation, right?

    Your bottom line:
    The ICC had at is inception tons of bureaucrats and diplomats, who blocked any progress on outreach and designed a really bad website that has taken almost a decade to migrate. You might know a few of those in the “advance team” who worked on “communications”. Now that they are out they feel it easy to do a bit of “website research” to trash an institution they actually never understood, and they now want to make a living from that, calling for “research funds” to suggest the Court to get iphones.

  2. Another excellent column Sam. Ian Brownlie came to the same conclusion: “Political considerations, power, and patronage will continue to determine who is to be tried for international crimes and who [is] not” in Principles of Public International Law 604 (7th ed. 2008) his last book, before his untimely death. As you predicted the African nations are now subject as before to might is right or as others might say: victor’s justice. To paraphrase George Carlin – it is best to experience dreams of international law when asleep.