‘An International Criminal Court […] is Hereby Established’
Introducing the Symposium on the 20th Anniversary of the Entry into Force of the Rome Statute of the International Criminal Court
Benjamin Berell Ferencz, former prosecutor at the Nuremburg tribunal, once said ‘There can be no peace without justice, no justice without law and no meaningful law without a Court to decide what is just and lawful under any given circumstance.’ On 17 July 1998, the ‘United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court’ adopted the Rome Statute of the International Criminal Court (ICC), which entered into force twenty years ago on 1 July 2002, marking a step towards Ferencz’ understanding of the relationship between peace and justice. Throughout its operations, the ICC has since faced several challenges, limitations and critique, but it has also made a number of achievements.
At the time of the adoption of the Rome Statute, the ICC enjoyed support from the international community, even though some States raised concerns, mainly related to sovereignty as well as the ICC’s prosecutorial discretion. Fast forward to recent years, criticism towards the Court has grown significantly. Relations between the ICC and African States have become increasingly tense. One of the accusations is that the Court is applying double standards, considering that the majority of situations under investigation are located in Africa. The African Union (AU) has also criticised the ICC regarding ‘the unfortunate consequences’ of the indictment against former President Al Bashir on the peace processes in Sudan, while also releasing a withdrawal strategy document. Indeed, in 2017 Burundi, Gambia and South Africa announced their intention to withdraw, with Burundi’s withdrawal taking effect in October 2017. A similar step was taken by the Philippines, whose withdrawal became effective in March 2019. Lastly, the United States adopted a hostile approach towards the ICC during the Trump administration, imposing sanctions on the Court’s personnel.
The relationship between the ICC and the United Nations Security Council (UNSC) has also come under scrutiny. The ICC has been impeded from investigating the crimes committed, among others, in Syria and Myanmar owing to the (threat of the) use of the veto powers by UNSC permanent members. This, in combination with the subsequent establishment of the International Investigative Mechanisms (IIIM, IIMM) as an alternative means of ensuring accountability, have sparked several discussions including on the necessity of international criminal proceedings before domestic courts. The situation in Ukraine presents the most recent example of the challenges faced by the ICC due to the powers afforded to the UNSC. The Court has been unable to investigate into Russia’s crime of aggression against Ukraine, as none of the two States are parties to the Rome Statute, which would permit a proprio motu investigation or a State party referral. Due to the unavoidable use of the veto by Russia in case of an attempt for a UNSC referral, there are no realistic prospects of an ICC investigation into the crime of aggression.
Despite these challenges and critiques, the ICC has made several achievements. First of all, the Court has afforded an unprecedented role for victims through their participation in judicial proceedings. The ICC has established the ‘Victims and Witnesses Unit’, which provides protective measures and security arrangements, as well as counselling and other forms of appropriate assistance for victims and witnesses. Furthermore, the Court has developed jurisprudence on the destruction of cultural heritage as a war crime, as seen in the Al Mahdi case; a crime which has come to the spotlight in the last decade due to crimes committed, for instance, against the Uyghur minorities in Xinjiang resulting in the destruction of mosques and in Syria and Iraq as part of the crimes committed by ISIS. The ICC has also shown prosecutorial creativity in its attempts to ensure accountability for the commission of core international crimes, as seen in the case of Bangladesh/Myanmar (for an analysis on the reasoning of the ICC see here).
Considering that the ICC is far from perfect, the anniversary of the entry into force of the Rome Statute invites for reflections regarding the way forward in international criminal justice and the ways of reducing impunity for core international crimes, both within and outside the Court. Ultimately, as noted by Stahn, ‘the future of international criminal law is thus neither fully international nor fully national.’ Adding to this, issues such as new crimes that could be introduced to the Rome Statute, new types of evidence and fairness of international criminal proceedings deserve reflection when considering the way forward.
With this introductory note, we are thrilled to commence our blog-symposium. The aim is to discuss, in light of the 20th anniversary of the entry into force of the Rome Statute, selected topics, including the limits on the Court’s jurisdiction over recent crises and the domestic prosecution of core international crimes, the prosecution of conflict-related sexual violence, evidentiary issues, and perpetrators’ perspectives regarding ICC’s proceedings.
For this symposium, we have gathered a group of distinguished scholars who have done extensive research in the field of international criminal law before international and domestic courts. The line-up includes, although not in the order they will appear: Harmen van der Wilt (University of Amsterdam), Kim Thuy Seelinger (Washington University in St. Louis, Special Adviser on Sexual Violence in Conflict to the International Criminal Court Prosecutor), Yvonne McDermott (Swansea University), Damien Scalia (Université Libre de Bruxelles), Tom Dannenbaum (Fletcher School of Law & Diplomacy), Ingrid Mitgutsch (JKU Linz), Michael Lysander Fremuth (University of Vienna), Gabriel Lentner (Donau-Universität Krems), Lukas Müller (University of Vienna).
Without further ado, we yield the floor to our authors and wish the readers an inspiring week ahead!