Over the past twenty-five years, there has been remarkable headway in bringing to justice people accused of mass slaughter, rape as a weapon of war, and crimes against humanity.
Joseph Kony, leader of Uganda’s Lord’s Resistance Army, a group known for its use of child soldiers, was charged by the International Criminal Court in 2005. Thomas Lubanga Dyilo, from the Democratic Republic of the Congo, was convicted in 2012 for conscripting and enlisting children and sentenced to fourteen years in prison. Lubanga’s verdict broke new ground in criminalizing the use of child soldiers.
Founded by the 1998 Rome Statute, the International Criminal Court investigates and tries those charged with the gravest crimes: genocide, war crimes, crimes against humanity and the crime of aggression. Currently, there are 123 countries “party” to the Rome Statute and so members of the ICC. So far twenty-six cases have come before the court; people have been convicted and one acquitted.
But international justice faces immense challenges today, especially with an alarming increase in international crimes over the past five years, especially in countries that haven’t joined the ICC.
Our modern international system of accountability was created following the end of the Cold War, when some were declaring the triumph of democracy and market capitalism—“the end of history”—and, as then President George H.W. Bush pronounced, a “new world order.”
These ideas appear absolutely antique when looking at today’s landscape of human rights, the rule of law, and accountability.
For one thing, the workload of the International Criminal Court—a court of “last resort” for when national authorities fail to prosecute atrocity crimes—far exceeds its founders’ expectations. At the same time, there is diminishing political and financial support from member countries. But states have an opportunity to reverse that message this year, the twentieth anniversary of the completion of the ICC’s “constitution”—the Rome Statute. Greater public back up for the arrest of suspects and other forms of government help is needed from member states in all regions: Africa, the Americas, Asia, and Europe.
An even greater challenge is structural—the Court’s authority can only be triggered if either the country where the crimes occurred, or a suspect’s home country, have joined the International Criminal Court. The exception to these requirements is the UN Security Council “referring” the situation to the Court. So while the ICC has a basis to open an investigation into alleged crimes by U.S. military and intelligence personnel in Afghanistan, which is a member, it cannot in Iraq, Yemen, South Sudan, Myanmar, and Syria –– countries in which civilians have suffered horrific crimes but are not members of the Court.
The difficult circumstances are compelling innovative steps towards prosecution. These are now being used for several countries in Asia and Middle East.
Frustrated by paralysis on Syria, in late 2016, 105 countries at the United Nations General Assembly, spearheaded by the Principality of Liechtenstein, voted to create a special mechanism for Syria, to compile files for future cases of genocide, crimes against humanity, and war crimes before their national courts.
Prosecutors in Sweden, Germany, and France are using domestic law to bring charges against people living in their countries believed to have committed grave crimes in Syria. These potential prosecutions have limits, for sure, since suspects have to be in the investigating countries. In the case of Syria, many suspects who are a part of the government have never left the country.
Two years ago the Committee of Experts for North Korea, created by the U.N. Human Rights Council in Geneva, added criminal investigators to the human rights fact-finding office in Seoul. It also set up another fact-finding panel last year, to document the ethnic cleansing of 700,000 Muslim Rohingya in Myanmar.
Meanwhile, the International Criminal Court needs resources for its cases so it can, in effect, be the court of last resort when all other avenues to justice are blocked.
With no police force to execute its arrest warrants or other judicial orders, the court has to rely on the governments of the nations where the individual suspect resides for their arrest or to assemble needed evidence and witnesses. For example, the court has been unable to arrest President Omar al Bashir of Sudan over charges of crimes against humanity in Darfur and has struggled to get arrests of even lower-level suspects in countries such as Libya.
The court’s expenses are a relative pittance compared to military or peacekeeping actions, and its biggest contributing countries should step up as the demand for justice grows. Several “deep pocket” member states have limited increases in the budget to ”zero nominal growth,“ that is no more than inflation. These countries include the United Kingdom, France, Germany, Canada, Italy, and Japan. At the same time, the court’s docket has grown enormously.
Their approach could threaten the court’s independence as a judicial institution free from political interference.
If properly funded and supported, the work of the Court could send a powerful message to those responsible for crimes, and to victims alike, that justice may become a reality.
Richard Dicker is international justice director at Human Rights Watch.