Marco Bocchese joins JiC for this piece exploring why state leaders renege on their commitments to the International Criminal Court (ICC) and, especially, why they do so after joining the ICC. Marco is currently a visiting assistant professor at the University of Illinois at Chicago (UIC), Department of Political Science. His academic article on this subject, After Ratification: Predicting State Compliance with ICC Treaty Obligations, can be found here. 

Rodrigo Duterte, President of the Philippines (Photo: Aaron Favila / AP)

This is not a good moment in time for international law, let alone for human rights. Leaders of developed and developing nations alike are increasingly pushing back against legal obligations which, while often enshrined in international treaties their very governments ratified, now assertedly hinder the adoption of bold measures and policies aimed to address serious domestic issues.

To give but one example, Filipino president Rodrigo Duterte must have seen international laws as unnecessary hurdles in the way of his signature ‘war on drugs’ when in March 2018 he announced the decision to withdraw his country from the Rome Statute of the International Criminal Court (ICC). According to official figures, Duterte’s‘war on drugs’has resulted in 6.600 people killed since his election to the presidency in 2016, although human rights activists claim the death toll is much higher, at 27.000 casualties.  Unfortunately for the ICC and its remaining—but unwavering—supporters, Duterte was neither the first nor the only to bail out of the international criminal justice system established in Rome twenty-one years ago.

Just like Duterte, other heads of state who allegedly ordered or were otherwise implicated in the commission of serious crimes have either withdrawn or threatened to withdraw their country from the Rome Statute. The list includes former Gambian president Yahya Jammeh, former South African president Jacob Zuma, and current Burundian president Pierre Nkurunziza, though only the latter was  eventually able to withdraw his country from the Rome Statute. Legal and ethical considerations aside, the decision to leave the Rome Statute systems prompts a question which is not just theoretically intriguing, but also rich with policy implications: Why do countries that leave the ICC ratify a treaty like the Rome Statute in the first place?

In my latest study, published in the International Criminal Law Review, I carried out the first survey of diplomats from over 190 permanent missions to the United Nations headquarters in New York City. These are foreign policy experts—many, but not all, with legal expertise—whose responsibilities include advising their respective capitals on international law issues and negotiate the content and precise wording of treaties and other international law instruments. These diplomats, along with their predecessors, were the main actors in drafting the Rome Statute before its text was finalized in Rome in the summer of 1998; but their active involvement in the ICC never stopped. Today, permanent missions are involved in the vetting of judges, budget discussions and earmarks, advocacy and public diplomacy initiatives, and the monitoring of country situations whose gravity may warrant a UN Security Council referral to the Court—as happened in the past with Sudan-Darfur (2005) and Libya (2011). Most notably, many of these missions have worked tirelessly alongside NGOs to persuade non-state parties to ratify the Rome Statute and join the ambitious international criminal justice enterprise.

My study reveals that diplomats see state motives for ratification as a reliable predictor of future compliance with treaty obligations. In other words, they do not trust countries whose ratification was either pressured or rewarded to comply with Rome Statute provisions or cooperate with international investigations or prosecutions. While it is theoretically possible for state authorities to change attitudes towards the ICC after ratification, diplomats remain skeptical that governments who ratify the Rome Statute for interest-driven reasons will later come around and uphold the values underpinning said treaty. If states join the ICC for reasons other than to be good stewards of human rights and international criminal justice, they won’t become such stewards just by becoming part of the Rome Statute system. In all, the mere ratification of a treaty no longer warrants expectations of future compliance.

But (dis)trust in future state compliance is not evenly distributed among survey respondents. European and American diplomats claim that their own governments ratified because of the values underpinning the Rome Statute and trust that neighboring countries did the same. By contrast, they proved skeptical of faraway developing countries, whose commitment to the Rome Statute is often deemed insincere and interest-driven. African respondents are generally less trusting than their European and American colleagues. Still, many of them maintain that values, rather than political calculations or economic incentives, provided the overarching reason for opting in the international criminal justice system. Lastly, Asian diplomats were by far the most pessimistic about state motives and willingness to comply with treaty obligations in the future. However, their skepticism applies almost evenly to their own governments, regional partners, and faraway developing countries. Bearing in mind that China, India, and most Southeast Asian countries have thus far declined to ratify the Rome Statute, this last finding in not entirely unexpected.

Where do we go from here? First of all, that diplomats tend to trust neighboring countries more than distant ones may embolden regional organizations to play a more prominent role in the diffusion of international criminal law norms. Relatedly, they prefer future diplomatic and advocacy initiatives aimed to expanded membership in the Rome Statute to be conceived and implemented at either the continental or sub-continental level, instead of using a ‘traditional’ top-down approach whereby Western democracies appear to leverage economic incentives in exchange for ratification. Second, it is crucial to distinguish between the moment of ratification and that of actual obligation. In the Philippines, for example, it was Benigno Aquino III, Duterte’s predecessor, who opted for the ratification of the Rome Statute in 2011. In The Gambia, a new government changed course and reaffirmed the country’s commitment to the ICC. Change of government, whether democratic or not, does not have any legal effects on one country’s international obligations, but it clearly matters as far as state attitudes toward the ICC and willingness to comply are concerned. Finally, every new ratifications deserve to be unpacked and assessed in light of the real underlying motives and prospects of compliance, rather than hastily celebrated as an achievement in itself. On this point, El Salvador’s ratification of the Rome Statute in March 2016 is widely regarded as a success story as it reflected the government’s decision to consolidate democracy and willingness to work alongside prominent international NGOs in the process.

Persuasion may not always be viable, but it is the only way forward as many ICC supporters are now unwilling to spend political and financial resources to co-opt other countries into the Rome Statute  . That said, this policy shift is not necessarily a turn for the worse. On one hand, past attempts by Western democracies to leverage foreign aid or trade incentives in return for additional ratifications of the Rome Statute have not always borne fruit, as the case of Indonesia aptly demonstrates. On the other hand, much work remains to be done to dispel common misconceptions of what the ICC is and how it operates before persuasion can effectively alter state attitudes towards international criminal justice. The Malaysian government’s recent decision not to accede the Rome Statute perfectly exemplifies the importance of addressing and refuting false myths what ICC membership entails for state sovereignty.

But to end on a high note, study participants tend to agree that, as governmental and non-governmental actors continue to tirelessly promote an informed understanding of the Rome Statute system, more states are expected to drop their reservations and join the ICC.