An ongoing and active debate amongst virtually anyone interested in international criminal justice is whether the International Criminal Court (ICC) should or shouldn’t intervene in ongoing and active conflicts. Proponents generally maintain that the ICC can have positive impacts on bringing live conflicts to an end. Conversely, critics maintain that the Court’s interventions complicate conflict resolution and that justice should wait, at the very least, until after the conflict has concluded.
A recent discussion on Twitter touched on this debate as a number of eminent ICC scholars and observers, including Leslie Vinjamuri, David Rieff, Anthony Dworkin, David Kaye, and David Bosco, argued over the merits of an ICC intervention in Syria. Bosco ultimately suggested that “zeitgeist is moving strongly away from [international] judicial intervention in midst of conflict”. This reflects the rather widespread (and perhaps increasingly common) opinion that the potential and real costs associated with ICC interventions into active civil wars are too high. In practice, however, the ICC seems increasingly predisposed to intervening in ongoing and active conflicts. What is less clear and deserves more critical examination is why this is the case.
It Was Built For It
A central, if not the central, element of the ICC’s foundational narrative informs us that the Court is the first-ever permanent international tribunal of its kind. The International Criminal Tribunals for the former Yugoslavia (ICTY) and for Rwanda (ICTR) were ad hoc, temporary institutions set up by the United Nations Security Council. The so-called hybrid tribunals in Sierra Leone (SCSL), Cambodia (ECCC), Lebanon (STL) and elsewhere were intended to deal with a specifically defined period of violence. They were also created as specific responses to atrocities that had already been committed – although some, like the ICTY, ended up prosecuting crimes that occurred afterwards and others, like the STL, may ultimately have their jurisdictions expanded.
In contrast, the permanent ICC was built as a forward-looking and potentially universal institution which would respond to any commission of international crimes within its jurisdiction. While it cannot investigate any atrocities prior to 1 July 2002, its forward jurisdiction is limitless. In theory (if not necessarily in practice), where atrocities occur is irrelevant to the ICC; if the Court has jurisdiction over individuals alleged to have committed international crimes, it is expected to investigate them. And, it should go without saying, atrocities under the ICC’s jurisdiction are as or more likely to occur during periods of violent political conflict than during times of ‘peace’. Notably, the ICC has no jurisdiction to investigate in exceptions to this rule, such as North Korea, Burma and post-war Sri Lanka.
Lastly, the ICC is a treaty-based institution. Its viability depends on the will of states to fund its work, cooperate with its investigations and enforce its arrest warrants. The Court would be little more than a shell of itself if the international community wasn’t interested in engaging it. In this context, it is important to note that, since its creation, states have been primarily interested in how the ICC can be utilized in the context of active conflicts. It should thus come as no surprise that the vast majority of situations investigated by the ICC have constituted ongoing conflicts.
It isn’t by chance that the ICC has intervened in ongoing wars. It was built to do so.
It Is Expected To
But it isn’t just that the ICC was created to intervene in live conflicts. It is also increasingly expected to do so.
When conflicts erupt, citizens advocating for international intervention – judicial or otherwise – aren’t typically in the mood to wait. The wisdom of such heightened expectations can be debated but, generally speaking, those who suffer from atrocities are keen for action to be taken as quickly as possible. The calls by demonstrators demanding that the ICC intervene in Syria and bring Assad to The Hague weren’t requests for the Court – or the international community – to take it slow and wait until a transition had passed. Moreover, states fighting rebel armies or opposition groups combating autocratic governments also aren’t interested in waiting – they want the legitimacy bestowed to them by ICC as soon as possible.
At the same time, the swirling rhetoric around the Court from human rights groups and advocates is intended to reaffirm and reinforce the Court’s role in transforming and resolving political violence. Whether it is slogans like “there is no peace without justice”, or arguments that the Court can remove potential spoilers from peace processes and that it can have a specific deterrent effect on the conflicts in which it intervenes, the expressed role of the ICC is a reflection of its intended effects on ongoing conflicts.
It Wants To
Beyond fulfilling the expectations that it intervene in ongoing and active conflicts, the brief history of the ICC demonstrates rather clearly that the Court receives more cooperation from states when it intervenes in ongoing conflicts than once a conflict has been terminated. Consider a few examples.
Following the UN Security Council’s referral of Libya to the ICC in February 2011, state support for the Court’s work was high. The ICC’s Office of the Prosecutor consequently moved quickly in order to ‘capture’ this wave of international interest and support for the Court. UK PM David Cameron, French President Nicholas Sarkozy and US President Barack Obama unanimously voiced their support for the ICC’s role in the civil war. However, when a military conclusion to the conflict became achievable, state support for the Court’s mandate dropped precipitously. Once the civil war in Libya concluded and the country entered the post-Gaddafi era, support for the Court essentially evaporated altogether.
A similar pattern can be seen in Uganda. When the war between the Lord’s Resistance Army (LRA) and Government of Uganda was active, state support for the ICC was strong – especially from Uganda which viewed the Court as a useful rhetorical and potential military tool against the LRA. However, once the conflict was exported to neighbouring states and the ICC became less useful as a tool of warfare, support for its mandate dropped. These days, Ugandan President Yoweri Museveni is amongst the most virulent detractors of the Court.
Lastly, it is noteworthy that the single most damaging intervention for the ICC has been its investigation and cases in Kenya, where the Court intervened long after the 2007/2008 post-election violence had concluded. Today, and in particular since the election of President Uhuru Kenyatta and Deputy President William Ruto, there has been very little state support for the ICC’s Kenya cases.
Of course, there may also be other issues at play, including whether states see particular individuals as legitimate partners of the international community or not. But as a general rule of thumb, state support for the ICC tends to be higher during ongoing conflicts than once war has concluded. During periods of active political violence, the potential post-conflict politics of a transitional state are unclear. Once a certain level of clarity on what a post-conflict transitional state will look like is achieved, support for ICC interventions tends to drop. While it doesn’t always work out, intervening in live conflicts has the potential to serve the Court’s institutional self-interests.
Intervening More Not Less
Given what the Court stands for, it could easily be seen as a failure of international criminal justice if the ICC did not intervene in live conflicts. This is not to deny that the ICC complicates conflict resolution. It certainly does. But what remains unclear is precisely how it complicates efforts to end conflict and establish lasting peace – as well as whether / when it does so positively or negatively. What is clear is that the Court will continue to intervene in ongoing and active conflicts. It was built to do so. It is expected to do so. And it wants to.