Marieke Wierda joins us for this fifth installation in our ongoing joint symposium with EJIL:Talk! on the ICC and its impacts on national prosecutions. Marieke is a PhD candidate at Leiden University and is an expert on transitional justice working at the Dutch Ministry of Foreign Affairs.

In this piece, Marieke Wierda asks whether the ICC’s impact on national justice is a “pressure point” or a “tipping point”. (Illustration: iStock)

The Human Rights Watch report Pressure Point: The ICC’s Impact on National Justice describes an aspiration that many of the supporters of the International Criminal Court continue to harbor 20 years after the Rome Statute came into force. The report could be renamed “Tipping Point”: the aspiration of Human Rights Watch and others is that the existence, and actions of the ICC will decisively tip the scales of justice in favor of accountability for the world’s worst crimes at the international or domestic level.

Increasingly, the focus of advocates of the ICC has been fixed on the ICC’s impact at the domestic level. Long after its creation, the courtrooms in The Hague remain dramatically underutilized. As of 2018, the ICC had issued only four convictions: Thomas Lubanga Diyolo, convicted on 14 March 2012; Germain Katanga, convicted on 7 March 2014; Jean-Pierre Bemba, convicted on 21 March 2016; and Ahmed al-Farqi al-Mahdi, convicted on 27 September 2016 (pursuant to a guilty plea).

The Court faced many problems during these trials. In a major setback to the Office of the Prosecutor, on 8 June 2018 the Appeals Chamber acquitted Jean-Pierre Bemba. With only three convictions since 2002 (including a guilty plea), comparisons are inevitably made with the ICTY, which concluded proceedings against roughly 140 accused in 20 years with 18 were acquitted. In the age of austerity, where questions about cost versus impact of international interventions abound, this raises questions about the 1.5 billion Euro investment in the Court, and whether it really is the only road to the noble intentions that prevailed in Rome.

Hence the focus by HRW and others on the domestic level: “positive” complementarity through strengthening domestic legal systems gradually assumed such prominence amongst the ASP and supporters of the ICC that it was retroactively coined as perhaps the main impact of the Rome Statute. In the words of Burke-White: “encouraging national prosecutions within the “Rome System of Justice” and shifting burdens back to national governments offers the best and perhaps the only way for the ICC to meet its mandate and help end impunity.”

The question is what is the impact of the ICC, and how can it be measured? Is the existence of the ICC a game-changer in prompting domestic investigations and prosecutions? However, as this carefully researched report indicates, hope burns eternal. In fact, pressure exerted from the Office of the Prosecutor has yet to lead to significantly more prosecutions in the countries highlighted in the report. It appears that the existence of the ICC alone is not the magic bullet that advocates for the fight against impunity had imagined.

This is for several reasons. Crimes of the magnitude to fit the definitions of the Rome Statute are often committed in complex political conflicts in countries that suffer from a breakdown in the rule of law. The Court alone is not well placed to address these broader rule of law challenges, and with its current resources and the many situations under its purview, the Court is not even particularly well placed to analyze and decisively influence the political context.

Additionally, the Court’s current policies on case selection and prioritization mean that its focus will rest on a limited number of cases. In situations where national authorities lack political will, they can play a careful game of complicating admissibility of specific cases, rather than pursuing genuine accountability. Investigations of these crimes can be highly complex, and creating a game of fog and mirrors, at which some national authorities excel. This is particularly the case where state agents may be involved, as is the case in Colombia, Georgia and the UK. The Court’s interactions with national authorities have been more adversarial than amicable.

The Court’s quest is further complicated by the fact that it lacks enforcement powers, thus it is ultimately dependent on those very national authorities for matters such as security, witness protection, and enforcement of arrest warrants if inside their territory. Rather than complementarity, as I have argued in my doctoral thesis – The Local Impact of a Global Court – this leads to parallelism.Because of its dependency on national authorities, the Court is hampered by the same weaknesses that manifest in those authorities. If national authorities cannot (or will not) effectively protect witnesses, as in Kenya, neither can the Court. If they cannot enforce arrest warrants, as was the case with Uganda and the LRA, the Court faces similar difficulties. Where political will is lacking, the Court is hamstrung. All of these are significant barriers to the positive complementarity that HRW seeks to promote.

Of course, pressure from the Court may be a contributing factor to incentivizing investigations by national authorities, but is not likely in and of itselfto result in more prosecutions. Much more is needed. HRW recognizes this when it concludes that “it is unlikely that the OTP, on its own, can fundamentally alter political dynamics.” The Court is not set up for that.

Nonetheless, the Human Rights Watch report is full of wisdoms on possible OTP strategies to further advance domestic investigations and prosecutions, including building strategic alliances with domestic counterparts in civil society and the media, and in identifying clear benchmarks for progress.

At the same time, the OTP should certainly not rush to open many new investigations. Much as the invasion of Iraq in 2003 demonstrated the real limitations of US military prowess, investigations by the ICC often demonstrate the limitations of the Court’s reach by touching on only a handful of individuals. The shadow cast by preliminary examinations is a longer one, and pressure during that phase can perhaps yield more results, as has arguably been the case in Colombia. The Court’s own track record on its investigations is poor, and it should certainly not embark on too many situations at the same time, further stretching its limited resources and credibility.

Preliminary examinations are a Catch-22 for the Court. On the one hand, lengthy preliminary examinations can cause national authorities to “grow less concerned about an ICC intervention”, as observed by HRW. On the other hand, opening investigations has the potential to result in noncooperation, which also undermine concern about an ICC intervention, and further erode its authority. More transparency, as called for by HRW, means that the OTP has to share more information on its own targets, which can lead to more willful obstruction.

Certainly the OTP’s involvement does result in more domestic pressure for accountability. But the HRW report lacks insight into the priorities of victims in these situations. In the case of Georgia, HRW was told that “victims, especially those who were displaced, were more concerned with returning home.” In Colombia, victims participated directly the peace negotiations at Havana and the comprehensive transitional justice measures included in the agreement include their rights to truth and reparations. Certainly the needs and interests of victims should remain central to any actions taken by the Prosecutor.

A singular focus on criminal investigations or prosecutions can distract from, or complicate, other measures that can improve the lives of victims and that provide forms of redress, as can be seen in situations such as in Kenya. In the words of the (former) High Commissioner for Peace in Colombia, Sergio Jaramillo: “Impunity is necessarily measured according to the degree to which the rights of the victims are satisfied.” Aggressive lobbying for criminal investigations and prosecutions raises security concerns for local NGO’s, victim organizations and potential witnesses. In Afghanistan, lobbying for prosecutions of warlords by HRW and others even led to the passage of a new amnesty law in 2007. The risks of a singular focus on criminal justice become starkly apparent in the Bemba acquittal. Acquittals are inherently part of the criminal process, but what recourse will there be for the victims of sexual violence in the CAR? Will they get their redress from the Trust Fund for Victims even if there will be no reparations? It would be useful if HRW would extend its analysis to include the interests of victims.