The enigma of the International Criminal Court’s success

William Schabas
17 February 2006

Almost eight years since it was established with the adoption of the Rome Statute, the International Criminal Court continues to gain inexorable momentum, surpassing the expectations of even its keenest supporters. In November 2005 it reached the important threshold of one hundred member states. Back in 1998, when the Statute was adopted following a dramatic and unprecedented diplomatic conference, it was thought it would take a decade to reach the magic number of sixty member states required for the court to actually begin to operate. Now it is a thriving institution, with arrest warrants for suspects in Uganda, and ongoing investigations in Darfur and eastern Congo.

In this article William Schabas is reviewing Marlies Glasius, The International Criminal Court: A Global Civil Society Achievement, Routledge, 2006

Surprisingly, even what looked like the biggest obstacle to the court's success, the opposition of the United States, seems to have withered. In March 2005, the US actually handed the ICC its biggest case, when it abstained in the Security Council vote to refer the Darfur situation. Washington's initial roar of protest is now only a whimper. A new study by Marlies Glasius into the enormous contribution made to the Rome Statute's development by the NGOs, social movements, pressure groups and other non-state actors that constitute "global civil society", touches on important clues to the institution's mysterious success.

The story of the Rome Statute begins with a draft of the document that was submitted to the United Nations general assembly in 1994. It looked rather like a permanent version of the Yugoslavia war crimes tribunal. If that text had been adopted without major change, the US would probably be a member of the ICC today. But global civil society, together with a dynamic cluster of states from various parts of the world known as the "like-minded", thought it could be improved. In many respects they succeeded in improving it, somehow making the court a much more exciting proposition for many countries (which explains its phenomenal growth) and at the same time utterly unpalatable to the Americans.

Marlies Glasius's study takes in four clusters of issues around which NGOs and other civil-society participants mobilised: the independent prosecutor, universal jurisdiction, gender and forced pregnancy, and prohibited weapons. It really stops in 1998, making the whole account a bit dated. But it accurately conveys the tremendous energy that global civil society gave to the process. It also may partially explain the unanticipated successes of the years that followed, although that is not its intent. In any event, this was a story waiting to be told. The account is readable and fascinating, relying principally on interviews with participants and a combing through the NGO publications and other documents that circulated at the 1998 Rome conference.

Glasius gives the title "the victory" to her chapter on the independent prosecutor. The original 1994 draft of the Statute contemplated a prosecutor who was subservient to the UN Security Council. This constituted unacceptable political involvement in a judicial process, argued the critics. It was also a deal-breaker for the Americans, who invoked the spectre of the "Dr Strangelove prosecutor" (after the legal investigations into Bill Clinton's affairs, they started to talk of a dreaded "Kenneth Starr prosecutor").

Intriguingly, after almost three years in office, the independent prosecutor who was eventually elected – Argentinean lawyer Luis Moreno Ocampo – has yet to use his independent powers, and shows little inclination to do so. Instead, he has developed a technique of launching cases that were never anticipated by those who pushed the idea of an independent prosecutor. So were all those of us who backed it barking up the wrong tree at Rome? Global civil society built a case around an issue that has thus far proved to be of little importance. Certainly, Ocampo seems to have shown that the court can operate without a prosecutor endowed with the right of initiative. It is probably unfair, of course, to expect Glasius to explain this mystery, because that is not the purpose of her study.

There may have also been misjudgment on another core issue for global civil society, which is the subject of her next chapter, entitled "the defeat". It deals with universal jurisdiction, a concept familiar enough to specialists and insiders, but which probably needs more explanation than we get here, given the broad audience targeted by the book. A state acting under universal jurisdiction can prosecute a crime even if it has no territorial or other link with the offence or the offender. Spain's attempt to bring Pinochet to book was an exercise of universal jurisdiction, as was the famous trial of Eichmann in Jerusalem. There has been more talk than action about universal jurisdiction, because national justice systems are loathe to invest precious resources where they have no perceivable benefit for the taxpayer, not to mention potentially severe political consequences.

Also in openDemocracy on international criminal justice:

Geoffrey Bindman, Juan Garces, Isabel Hilton, "Justice in the world's light" (June 2001)

Anthony Dworkin, "The trial of Milosevic: global law or war? "
(February 2002)

Anthony Dworkin, "The trials of global justice" (June 2005)

Hanny Megally & Veerle Opgenhaffen, "Algeria's past needs opening, not closing"
(September 2005)

Hanny Megally & Veerle Opgenhaffen, "Saddam's trial: the needs of justice" (October 2005)

Robert Cawston, "Nuremberg and the legacy of law" (November 2005)

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But the legality of exercising universal jurisdiction over genocide, crimes against humanity and war crimes is not seriously questioned. And it was around this premise that global civil society built the claim that the ICC should be endowed with universal jurisdiction. If individual states could prosecute foreign nationals for crimes committed in far away places, why couldn't they endow an international institution with the same sort of authority? The argument was seductive and, as Glasius points out, it garnered broad support, only to be dropped at the last minute in somewhat secretive negotiations.

Here too there is a bit of an enigma that cannot really be understood without looking at post-1998 developments. The final version of the Rome Statute gives the court jurisdiction over the territory of a member state, and over nationals of a member state. That means it can prosecute a British soldier for violations of international humanitarian law committed in Iraq, but not an American soldier or, for that matter, an Iraqi insurgent. Britain ratified the Rome Statute, giving the court jurisdiction over its nationals, but neither the United States nor Iraq have done so. So the court only applies to crimes committed in Iraq if the perpetrators carry the passport of a member state.

But what seems like an imperfect and inadequate approach may actually help explain the success of the court. In 1998, most observers, including the loudest voices of the like-minded and global civil society, claimed that universal jurisdiction was necessary for an effective court because states confronted with civil disturbances and political unrest would never join. Their undeclared vision was of a court with a relatively small number of members, essentially "good guys" from the north, rendering justice for the less stable countries of the south.

Then a strange thing began to happen. The very states that nobody expected to join the court started sending their ratifications in to New York: Sierra Leone, Fiji, Macedonia, Colombia, Uganda, Burundi and so on. Why they did it is a story still waiting to be told. But there are enough of them to know that this is not a mere anomaly.

My own theory is that these states see the ICC as an innovative mechanism that may help to resolve or prevent conflict, and to protect their own territories from foreign threat. They may be right. It is too early to tell whether the court can actually deliver such precious goods. They have joined the court not because they are international altruists, a role that probably explains the participation of many states in the north, but because they think the court can actually deliver some benefit to themselves.

A court with universal jurisdiction offered such states no real incentive to join the institution. That is because a court with universal jurisdiction would be free to operate, at least in theory, anywhere in the world. If, then, Sierra Leone thought the court could protect its territory, this result was accomplished automatically without any need for Sierra Leone to actually join the court. Jurisdiction based primarily on territory, as is now the case, means that if a state wants to protect its own territory it must join the court. In other words, far from being the defeat that Glasius describes, the rejection of universal jurisdiction may actually have been the key to the court's success.

I hope this will not be the last fascinating account of the contribution of global civil society to international lawmaking. There are new episodes to be written. It is a great disappointment that global civil society has not yet seized the initiative in reform of the United Nations. In March 2005, at about the time the Security Council was referring the Darfur situation to the ICC, UN secretary-general Kofi Annan advanced a range of proposals that would dramatically realign the architecture of the organisation.

One of Annan's goals was to put the protection of human rights at the centre of UN operations, rather than on the periphery, where it has lingered since San Francisco. Or rather, Annan wanted the organisational structures to reflect the reality of the importance of human rights in UN activities. Global civil society has yet to pick up the ball. Its involvement in the process has been lacklustre and uninspired. Glasius's important study should remind global civil society that it has new and daunting challenges to face. It remains to be seen whether the feat can be repeated, or whether the International Criminal Court was just a one-off.

A final comment: £55 is an awful lot of money to pay for a 131-page monograph. The gold standard here is the Oxford University Press commentary, which costs £325. But you get more than 2,000 pages for your spend!

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