Almost 15 years after the International Criminal Court (ICC) opened in The Hague, the novelty of adjudicating brutal crimes from around the world in this placid Dutch city has faded. The public gallery during that testimony was all but empty. A few elderly tourists from Spain observed for a few moments before filing out, in search of transport to the city center.
The world’s most ambitious court — with a mandate to prosecute serious crimes, even those committed by powerful leaders and military commanders — has settled into a routine. About 800 citizens from almost 100 countries labor in a striking new headquarters built in the North Sea dunes. Three trials are creeping forward, and a few other cases are being appealed. The court has already sentenced two individuals and acquitted or dismissed charges against a few others. Member states chip in funds to pay the court’s annual bill, which is approaching $150 million.
The political ground on which the court rests is less stable than it appears. More than 100 states created the court in the mid-1990s, a period of buoyant optimism about multilateralism, international law and justice across borders. (Even in that friendlier atmosphere, the ICC was a step too far for many large states; the United States shunned the court, as did China, Indonesia, India, Pakistan, Turkey and Russia.)
The current political atmosphere is far less accommodating for the court. New fissures have developed between powerful states, rendering multilateral cooperation even more complicated than usual. Populists in multiple countries rage against the excesses of globalist bureaucrats. The court faces a backlash of its own, mostly from certain African leaders. Why, they ask, have the ICC’s twenty-four defendants all been African, when hideous crimes happen around the world?
A few months ago, that kind of complaint created the young court’s most serious crisis, when three African states in quick succession announced they would abandon the ICC. South Africa’s announcement was the most devastating, and it sparked fears that a mass exodus of African states might follow. The sense of alarm has now ebbed a bit. One withdrawing state, Gambia, reversed course after a change in government. South Africa’s courts ruled that parliament had to approve any decision to leave the court, and it’s not yet clear that the government will seek legislation allowing a withdrawal.
But the essential complaint that has driven animus in parts of Africa remains very much alive: Is the ICC capable of administering impartial justice in a world of vast inequities? Some aspects of the African critique are easily dismissed. Most of the African investigations that the court has pursued were explicitly requested by the governments themselves, including in Uganda, Congo and the Central African Republic. And the court lacks jurisdiction in many non-African countries where crimes and oppression are endemic, including Iraq, Syria and North Korea. Nor has the court been completely motionless outside of Africa. In January 2016, the court launched an investigation in Georgia, although it has not yet brought any cases there.
Those realities don’t entirely absolve the court of regional or political bias. In several non-African situations where the court could investigate, it has dragged its feet. Most notable is Afghanistan, where the court has had a “preliminary examination” open for more than a decade. Any investigation there would be politically fraught, however, because Chief Prosecutor Fatou Bensouda has received information about alleged U.S. torture in the country. And a serious investigation of those crimes might lead to scrutiny of former U.S. leaders. In late October, the prosecutor declared that a decision on Afghanistan was “imminent.” Six months later, and without an explanation, no decision has been made.
Afghanistan is not the only geopolitical hot potato in the court’s queue. In 2015, Palestine asked the court to investigate alleged crimes by Israelis in the Gaza Strip and West Bank. The court is now considering a range of possible crimes by both Palestinians and Israelis, including Israel’s settlement push in the West Bank. Ukraine has requested the court to investigate possible crimes, including by Russians, on its territory. In all these situations, the court has dipped in a toe but not yet committed to a full investigation.
Taken together, Afghanistan, Palestine and Ukraine will mark an important crossroads for the court. If Bensouda moves forward on those fronts, she may eventually seek to prosecute the citizens of powerful states that have spurned the court. And that will almost certainly provoke new political turbulence. If she avoids those battles, the accusations that the court is politically hobbled will intensify. Either way, the relative calm on the North Sea coast won’t last forever.