The ICC in State Participation

Team Members: G. Chavez, C. Kasper, and C. Wetzel*

*Note: The team members contributed equally and are listed in alphabetical order.

Blog Post

INTRODUCTION TO THE INTERNATIONAL CRIMINAL COURT

The International Criminal Court (ICC) is a permanent international criminal court founded in 2002 to prosecute individuals charged with serious crimes involving the international community concerning genocide, war crimes, crimes against humanity, and the crime of aggression. The ICC has issued 35 arrest warrants, 10 convictions, 4 acquittals, 9 summonses, and detained 17 people. 

HOW THE PROBLEM FORMS

Currently, 123 State Parties have ratified or acceded to the Rome Statute, the ICC’s governing document. However, 42 States have neither signed nor become parties to the treaty including the influential powers US, China, and Russia. Of the five permanent members of the Security Council, only the United Kingdom and France are currently parties and actively participate with the ICC. 

African dissent of the Court led to multiple African countries threatening to leave in 2017, and as seen in Figure 1, the African Union has adopted a non-binding ICC withdrawal strategy as of 2017, showing the amount of dissatisfaction with the ICC.

PROBLEM OF STATE PARTICIPATION

The United States withdrew from the Rome Statute under Bush because of fears that the Court and the international community would target American soldiers because of US foreign policy. However, it has previously helped the Court by sharing information and intelligence about fugitives.

Russia withdrew in 2016 following the ICC lead prosecutor commenting on the situation in Ukraine. Further, they were accused of war crimes in their intervention in Syria. The Minister of Foreign Affairs, Sergey Lavrov, noted that the ICC did not live up to the expectations of independence and believed it to be “one sided and inefficient.”

The PRC has never signed the Rome Statute or cooperated fully with the ICC. Their foreign affairs are oftentimes controversial, especially concerning Syria and the ongoing civil war there. President Xi Jinping is often willing to assist the ICC when their cooperation does not conflict directly with China’s foreign policy or interests abroad. They also believe the agreement weakens the role of the Security Council.

The Agreement on Privileges and Immunities of the ICC (APIC) is an international treaty designed to facilitate State cooperation. However, as seen in Figure 2, only 74 states have ratified it.

POSSIBLE SOLUTIONS

The ICC has attempted to address the participation problem. In the past, the ICC hosted regional cooperation seminars, technical events to enhance cooperation, and events with focus on the legal profession. In addition, in 2016 the United Nations issued a “Best Practices Manual for United Nations-International Criminal Court Cooperation.”  The Manual provides practical guidance in implementation of the Relationship Agreement between the UN and the ICC. Even though the Court may exercise its jurisdiction on a non-party state after earning permission through a declaration, the ICC could improve participation among the international board with more party states. 

We suggest the ICC gradually increase the level of state participation. The levels of participation based on the extent of involvement: party states which ratified the Rome Statute, states that signed but never ratified the Rome Statute, and states not signing the Statute. Although non-party states could also cooperate with the ICC in some cases, including the provision of political and technical support, more party states can improve the depth of cooperation and subsequently boost the effectiveness of the ICC. By embracing the interests and addressing the concerns of non-party actors, and effectively carrying out its value, the ICC would attract States to sign the Rome Statute including African Countries. 

Facilitate justice everywhere in every area of the world without targeting Africa. Guarantee members to work towards the same cause. Be held accountable for decisions made and transparent in the reasons and scope of investigations ongoing. Cooperation between international organizations and NGOs could be a solution. Ensure better cooperation with the UN Security Council and ICC to address China’s concerns: back up ICC referrals, follow up on findings of non-cooperation, engage in dialogue with ICC - improve cooperative efforts between the ICC and the UNSC rather than a power struggle. The  veto mechanism in the UNSC could respect the US’  willingness in information and intelligence sharing.