The International Criminal Court (ICC) will hear important cases related to war crimes in Uganda and the Congo in January, but is the court itself caught in a global backlash?
The ICC needs the support of its members
In October, South Africa, Burundi and Gambia exited the ICC, raising new challenges for the relatively young war crimes court. A month later, Russia, which had signed — but not ratified — the initial 1998 Rome Statute that established the ICC, also withdrew, after the ICC issued a report labeling Russia’s actions in Crimea an “occupation.”
With no police force of its own, the ICC depends on the support and cooperation of member states to investigate, arrest and prosecute criminals. And with limited jurisdiction to investigate cases in nonmember states, the court needs countries to submit voluntarily to its jurisdiction.
Our previous research on global membership patterns suggests that the ICC has been successful in getting countries that already respect human rights to join. The ICC currently has 124 members. But nondemocratic countries and countries with a history of civil violence have generally been reluctant to join.
Some sub-Saharan African countries were important exceptions to this overall trend. New or unstable democracies in the region, countries with nascent and fragile rule of law and violent histories, were among the earliest parties to the Rome Statute. Early ICC cases, including its first successfully completed case, involved crimes in this region.
Membership and cases in this region helped allay fears that the ICC was just another example of “shallow cooperation”: where countries agree only to international legal rules by which they would have abided anyway. That the ICC backlash is taking place in the primary region that would signify “deep cooperation” makes these latest departures all the more important.
The ICC now has a PR problem
According to Lord Mark Malloch-Brown, a former U.N. Deputy Secretary-General, the ICC has “found itself on the wrong side of a PR and political campaign.” Political leaders may support the court but face obstacles when their citizens distrust the meddling of international courts spearheaded by Western powers. At the same time, leaders themselves might stoke public opposition to the court to serve their own goals.
Kenyan candidate Uhuru Kenyatta adopted this strategy, campaigning on an anti-ICC platform in his successful bid for the presidency in 2013. The court had indicted Kenyatta and his running mate, William Ruto, for their alleged roles in violence following the 2007-2008 Kenyan elections. As candidates, they stoked opposition to the court by casting it as a tool of Western imperialism.
The tide of public opinion sometimes emerges bottom up, as a grass-roots backlash against perceived Western imperialism. Or it can be an elite-led strategy, coming from leaders who originally thought they could manipulate the ICC to prosecute rebels and political opponents.
But what do we really know about public attitudes about the ICC? Initial evidence was optimistic that international law spurs public support for compliance with international institutions. Researchers found that telling citizens that torture or drone strikes violated international law made citizens more opposed to those policies.
Such findings are difficult to square with the court’s recent experiences. In Kenya, support for the court was high at the outset of the ICC’s investigation but decreased substantially as the court began to target popular politicians.
We found that support for international law and the ICC doesn’t mean support for ICC investigations at home
We fielded a nationwide survey in the central Asian country of Kyrgyzstan, a newly democratized country with some recent history of civil conflict — exactly the type of country the ICC is designed to benefit. In 2010, Kyrgyz militias allegedly targeted Uzbeks, carrying out ethnic pogroms concentrated in the cities of Osh and Jalal-Abad — and possibly with the complicity of the Kyrgyz government.
By randomly assigning respondents to a “control” and a “treatment” group, we used our survey to compare Kyrgyz citizens’ support for hypothetical ICC investigations abroad to their support for investigations into these 2010 events — this helped reveal which regions and types of citizens would be most likely to backlash against an ICC investigation. We wanted our survey to mimic what happens when citizens first learn about an ICC investigation into their country.
The way Kyrgyz citizens responded looked much like the court’s experience in Kenya. We found citizens were in favor of investigations in other countries but much less supportive of local ICC investigations. This pattern held across a number of statistical analyses.
These findings contrast with some of the research noted above showing that international law tends to mobilize “pro-compliance” constituencies. Instead, reactions to international law tend to be highly context specific.
Notably, the citizens most likely to benefit from transnational justice efforts — ethnic Uzbeks living close to where the violence occurred — were among the least likely to support investigations, possibly for fear of upsetting a peaceful status quo or being targeted in reprisals. Even citizens who indicated that they were familiar the ICC had these negative reactions.
This phenomenon is also not simply a reaction of countries with less developed democratic institutions. We conducted the same type of survey in the United States and found similar patterns. Americans claim to support international law, but their support drops significantly when they are told that the law might target the United States.
This tells us that populations often express support for international institutions like the ICC in the abstract but object to its application to their own countries and leaders. This appears to be the same dynamic we see unfolding in Africa.
Understanding why people feel the court is legitimate — or not — will be key to the ICC’s success
Although this analysis may not paint the most optimistic picture of the ICC’s future, it does point to a need to better understand the dynamics of the Court’s popular legitimacy in countries that might be most affected. As with courts in many other settings, the ICC’s ability to deter war crimes and prosecute those who have committed atrocities rests on perceptions of its legitimacy, as this shapes the willingness of political actors to cooperate with and enforce its decisions.
Our research suggests potential investigations often cause concern and trepidation among local populations (a finding echoed in Burundi — one of the countries withdrawing from the ICC). A better understanding of the conditions under which international legal interventions prompt a backlash vs. acceptance would do much to improve the court’s ability to survive the current crisis and have a successful future. This understanding would help orient the court and its advocates toward persuading publics of its many virtues.
Terrence Chapman is an associate professor of government at The University of Texas in Austin.
Stephen Chaudoin is an assistant professor of political science at the University of Illinois in Urbana-Champaign.