Making a Distinction: the Rome Statute is not the ICC; it is much more than that

A snapshot from the signing of the Rome Statute in 1998. The International Criminal Court would become a functioning reality four years 

As this piece goes to publication, dozens of events covering the International Criminal Court (ICC) and its record are taking place or are in the pipeline. It’s a veritable deluge. The reason for this onslaught is an anniversary. July 17 marks twenty years since the treaty upon which the ICC was built was voted into existence in Rome, 1998. But there is good reason to make a subtle distinction in marking the anniversary of the Rome Statute, rather than the the ICC itself. The Statute in its own right has had a curious and remarkable impact and influence that reaches far beyond the ICC’s walls. The Rome Statute made the Court but, in many ways, it is also much more than than just the ICC.

There is no doubt that some stocktaking of the ICC’s record is warranted. The Court has had a tumultuous journey since it came into existence in July 2002. There have undoubtedly been some wins. As of today, 124 states have joined the ICC.  It has secured a number of landmark convictions and managed to get a number of influential leaders in the dock, such as former Ivorian President Laurent Gbagbo. It has ensured that the voices of many victims – especially those who have chosen to participate in ICC proceedings – have been heard. It shouldn’t require an idealistic stretch of the imagination to say that it has offered a glimmer of hope for some justice in some places when there otherwise would be none. In places like Palestine and Afghanistan, where justice is regularly, repeatedly, and violently denied to victims and survivors, the ICC may represent the only option for accountability. The Court has further pushed some states, like Colombia, to place the achievement of justice and accountability at the heart of their peace processes. It has changed expectations of what justice may be possible in the wake of violence. Justice is now part of the equation. As soon as atrocities or violent conflicts erupt, observers invariably ask: how soon can the ICC become involved?

At the same time, the demand for ICC justice far outweighs its supply. Some of the Court’s most high-profile cases have collapsed or led to acquittals. Some, including Kenyan President and Deputy President Uhuru Kenyatta and William Ruto, have used the ICC’s cases against them to consolidate and expand domestic power bases. Just days after being acquitted on charges of war crimes and crimes against humanity – following a trial that took a decade, no less – Jean-Pierre Bemba was nominated as a presidential candidate in the Democratic Republic of Congo and now stands as the best challenger to President Joseph Kabila’s rule. Researchers have long observed that governments often ‘use’ the ICC in order to delegitimize their opponents and rid themselves of their adversaries. But given the Kenyatta, Ruto, and Bemba cases, one might also ask: can being targeted by the ICC sometimes help politicians?

Moreover, the ICC’s jurisdiction is severely, and frustratingly, restricted. Despite two-thirds of states joining the ICC, the vast majority of the world’s population live outside of its jurisdictional reach – and ratifications of the Statute have stalled. Major powers are, to say the least, skeptical. Russia, China, India, the United States and others have made it clear that they won’t be joining any time soon, if at all. This isn’t something that the ICC should be blamed for. But it remains worthwhile reflecting on the purchase of the ICC moving forward.

It is a challenging time for proponents of the ICC. The spread of global populism, tensions with major powers, and the persistence of austerity, often make the project of international criminal justice more of a Sisyphean task than a marathon with a clear destination. But against all of these challenges, the Rome Statute itself has had an indelible impact beyond the walls of the ICC itself – and even beyond the court’s member-states. This impact is worth praise irrespective of the what transpires in The Hague.

Again, it is worthwhile making the distinction between the Statute and the Court, similarly to how one might distinguish between a country’s constitution and the state itself. While intimately related, they’re not the same – and, indeed, the  20th anniversary of the ICC, which became a functioning entity in 2002, will be in 2022. When we de-couple the Statute from the Court, we can observe some curious but important impacts of the Rome Statute. Take two examples: India and the Democratic Republic of Congo (DRC).

Following the 2002 riots in Gujarat, western India, civil society and lawmakers strategized means to combat impunity for crimes committed by state agents and the police. The Rome Statute was used by advocates and officials in India to help shape the Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill in order to ensure that it met the highest international legal standards. The Rome Statute has also shaped debates around other legal bills as well. As Usha Ramanathan writes:

Though India refuses to join the ICC, the Rome Statute has proved very useful in pushing for law reform that would put an end to decades of impunity for state complicity in violence… in India, even though the ICC itself is a remote prospect, the Rome Statute has provided the language in which to understand, and challenge, impunity…

The International Criminal Court itself, it must be said, has not evoked this enthusiasm. Not to put too fine a point on it, it is too distant to be real, and the problems in India must be dealt with in the here and now… Nevertheless, in India, even though the ICC itself is a remote prospect, the Rome Statute has provided the language in which to understand, and challenge, impunity.

The Statute has thus had a surprising but impressive influence on the legislation of a non-member state of the ICC.

Following the rape of dozens of children, some as young as eighteen months, in Kavumu, in the eastern DRC, between 2013 – 2016, a constellation of local and international actors sought justice. The Rome Statute emerged as an indispensable tool. It was used to strip a Member of Parliament of his immunity from prosecution. Frederic Batumike had led the militia which had raped forty young girls, apparently “because a spiritual adviser told them that the blood of virgins would grant them supernatural protection.” He claimed any prosecution was unconstitutional.

The Rome Statute ensured that Batumike couldn’t hide from accountability. The provisions of Statute, which the DRC has signed and ratified, gave judges the grounds to strip Batumike of his claim to immunity. The rarest of feats was thus accomplished. A high-ranking political, along with 11 Congolese militiamen, were convicted on charges of murder and rape as crimes against humanity. They were all subsequently sentenced to life in prison. The Statute, according to Daniele Perissi and Elsa Taquet, guaranteed that “the immunities conferred by the Constitution to members of the national government or head of state are [irrelevant] when it comes to prosecutions for international crimes.”

While the Rome Statute undergirds and defines the ICC, it is also worth noting that it likewise infuses and shapes the foundations of other institutions, including hybrid courts that have been set up, or are in the process of being established, to deal with atrocities in conflict-affected contexts such as South Sudan, the Central African Republic, and Kosovo. Some of these have effectively copy-and-pasted elements of the Rome Statute into their own statutes, illustrating how the Statute acts as something of a ‘gold standard’ in international criminal law.

These down-stream, perhaps even unintended, effects do not get nearly as much attention as the dramatic goings-on in The Hague. But it seems clear that, twenty years after it was negotiated, the Statute has become an indispensable, if sometimes surprising, tool that can be wielded by advocates to achieve accountability and strengthen the rule of law. Whatever happens within the confines of the Court over the next twenty years, it will be impossible to strip that tool from those who seek justice in their communities. That is indeed worth celebrating.


About Mark Kersten

Mark Kersten is a consultant at the Wayamo Foundation, a Senior Researcher at the Munk School of Global Affairs, and a law student at McGill University Law School. He is also author of the book, 'Justice in Conflict - The Effects of the International Criminal Court's Interventions on Ending Wars and Building Peace' (Oxford University Press, 2016).
This entry was posted in International Criminal Court (ICC), International Criminal Justice, Rome Statute and tagged . Bookmark the permalink.

1 Response to Making a Distinction: the Rome Statute is not the ICC; it is much more than that

  1. Pingback: Making a Distinction: the Anniversary of the Rome Statute, Not Just the International Criminal Court – Jehtro Lewis – Blog

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