World leaders gathered in Rome 20 years ago to draft a treaty to establish the first permanent International Criminal Court (ICC). On July 17, 1998, after difficult and uncertain negotiations, states approved the Rome Statute for signature and ratification.
But the ICC steered clear of administering “victor’s justice” — in which those who win a war administer justice in its aftermath — to try those most responsible on all sides of a conflict. The ICC’s mandate would never expire, allowing it to address past crimes and deter future ones.
This would be a permanent court located in The Hague, but with a global jurisdiction, serving countries either unable or unwilling to hold their own to account.
NGOs worked to build consensus for the ICC
My research for my new book reveals the critical role of nongovernmental organizations (NGOs) and civil society in building and supporting the ICC. These actors, made up of individuals and citizen groups, work to advance a broader public interest without ties to governments or corporations.
At the Rome treaty negotiations, thousands of Amnesty International supporters held a mass “lie-down” and blocked the streets surrounding the Colosseum as the statute was debated. The protesters lay like corpses to represent the victims of abuses that the court would fight to end.
Meanwhile, the NGO Coalition for the ICC, a group representing hundreds of human rights organizations, collaborated to bring about the agreement. Their teams worked on every issue to build consensus when none seemed possible, protect key provisions and assist small states that would prove crucial in the final vote.
Lawyers and scholars hailed the Rome Statute as a great civil society achievement. It was. But it was only the beginning of civil society efforts.
Over the past 20 years, NGOs have defended the Rome Statute — much like conservation groups try to protect rain forests or whales. The ICC is their child, and NGOs have supported it with a parent-like vigilance.
William Pace, the convener for the NGO Coalition for the ICC, described the passion behind this protection: “Just as with a child, the birth and youth of a new international organization are crucial, especially formative, extremely vulnerable periods. It will take years, probably one or two decades, for the ICC to reach maturity — and it will need all that parents, family and community must give to survive and thrive.”
In 2002, four years after the writing of the Rome Statute, civil society groups celebrated the simultaneous ratification of 10 states — bringing the number of ratifications to six past the required 60. This lay the groundwork for the ICC to begin its work.
The quick succession of ratifications was a surprise to many legal experts, who thought it would take generations for the ICC to be established. Again, NGOs played a key role. The NGO Coalition for the ICC and Parliamentarians for Global Action cajoled, coerced and assisted states to ratify. They capitalized on previous relationships with state diplomats, provided legal aid on impediments to ratification, publicly shamed states and generated local civil society pressure.
NGOs claim to have directly contributed to the ratification of 77 states. To date, 123 countries have joined.
Supporting the operational ICC
NGOs then took on a broader outreach role. The first investigations, into alleged war crimes in Uganda and Congo, highlighted the information chasm between the court in The Hague and affected communities. Few in those countries knew of the court or how it worked, or the status of investigations.
The ICC had no budget for outreach. Domestic and international NGOs then took to the radio, set up workshops village by village and translated court information into local languages. NGOs also demanded funding from states for court-led outreach.
In 2009, a crucial test for the nascent court came when the U.N. Security Council referred the situation in Darfur to the ICC. The ICC issued an arrest warrant for Sudanese President Omar al-Bashir for genocide and war crimes.
Bashir’s case cut to the core of the international justice project: Would states arrest a sitting head of state? Would states support a case where the country hadn’t agreed to the court’s jurisdiction? Many states, even those obligated to do so by the Rome Statute, declined.
The International Criminal Court convicted a war criminal. And that revealed one of the ICC’s weaknesses.
NGOs pressured states to step up and arrest him. In 2015, Bashir narrowly evaded arrest in South Africa after a federal court issued an emergency order to arrest him, at the behest of a local NGO. They continue to condemn states for allowing or inviting Bashir to travel. Bashir remains free.
Pressure from the Women’s Initiatives for Gender Justice, an NGO based in The Hague, helped bring about justice for victims of sexual violence. The ICC was slow to hand down sexual violence indictments, so the NGO lobbied the prosecution and filed a third-party, “friend of the court” brief asking the judges to request that the prosecution add such charges.
In 2012, incoming Prosecutor Fatou Bensouda fully incorporated the NGO’s demands. The Gambian lawyer appointed the NGO’s former executive director to be the ICC’s special gender adviser to the prosecution. Multiple indictments for crimes of rape and sexual slavery followed. In 2016, Jean-Pierre Bemba Gombo’s conviction was the first ICC case to prosecute crimes of sexual violence.
The future relationship
The ICC to date has 11 situations under investigation, five trials in progress, and nine completed or closed cases — resulting in two convictions and one guilty plea. And it faces immense challenges: Its first case not on the African continent, the withdrawal of or threats to withdraw from several states, and the recent overturning of the conviction against Bemba on appeal.
What’s next for the ICC — and its NGO stewards? It remains to be seen, much like any parent and child, how the relationship will evolve with age. The ICC could forge its own way and fix its deficiencies. It is also possible that civil society groups will continuously hover like the parent that is ready to step back in, ever watchful for failures to remedy.
Heidi Nichols Haddad is an assistant professor of politics at Pomona College and author of “The Hidden Hands of Justice: NGOs, Human Rights, and International Courts” (Cambridge University Press, 2018).