The International Criminal Court (ICC) officially began its work ten years ago on July 1, 2002. While it has come to include over 120 member states from around the globe, the Court’s expansive geographical ambit has been less than obvious from its caseload. Until now, the ICC has exercised its jurisdiction in only one particular part of the globe, Africa, raising concerns that its work is guided by political, rather than legal, considerations.

The ICC’s recent adventures in the Middle East and North Africa have furthered criticisms about its biased political tendencies. With cases currently pending against Libyan and Sudanese officials, the ICC’s involvement in the Arab World has occurred through the most political of all mechanisms – UN Security Council referral.  At the same time, the Court’s recent decision to withhold membership from the Palestinian Authority has further undermined its reputation as a neutral arbiter of justice.

The revolutions of the Arab Spring provide a prime opportunity for the ICC to carry through on its mission to end impunity for the worst international crimes. Perceptions about its political biases, however, undermine the Court’s chance to have a positive impact on the ongoing transitional processes in the Middle East and North Africa. To ensure this opportunity is not squandered, the Court must address criticisms about its politicization.

The UN Security Council lies at the centre of this controversy. Under its governing statute, the ICC can assume jurisdiction only in cases involving member states, either upon referral by the UN Security Council, or where a country voluntarily accedes to its jurisdiction.

Other than Jordan and Tunisia, which respectively joined the ICC in April 2002 and June 2011, no Arab country has successfully taken up membership in the tribunal. At the same time, since the Court first opened its doors, it has received two Security Council referrals, Sudan in 2006 and Libya in 2011. As the only ICC cases from the Middle East and North Africa, the Security Council referral system has substantially shaped the region’s relationship with the Court.

Transitional justice is an implicitly politicized discipline, arising during times of immense political turmoil. Involving the UN Security Council in its work creates additional political dimensions that cut against the pursuit of justice in several ways.

First, it impacts the Court’s reputation. Most obviously, the Security Council is driven by the interests and agendas of its five permanent members. As such, referrals to the ICC carry the Council’s politicized edge and potentially transform the Court into a political tool in inter-state power struggles. There is, however, also more at play. The Council’s referral powers hinge on the existence of a threat to international peace and security, pursuant to Chapter VII of the UN Charter. As such, cases referred to the ICC will typically involve large-scale ongoing violence. The ICC’s effectiveness in these situations will, as a result, be highly contingent on the development and outcomes of these conflicts. Given the unstable and unpredictable nature of these situations, the ICC may be unable ultimately to make substantial progress in these cases, a circumstance that undermines the Court’s authority and impacts on perceptions about its effectiveness.

Finally, by impacting on the Court’s reputation as an institution, Security Council referral undermines the pursuit of individual accountability more generally. As long as realpolitik motivates international affairs, Security Council involvement will affect matters the Court can consider, further skewing its already unbalanced caseload. This undermines the pursuit of individual accountability by arbitrarily narrowing the range of cases the Court can undertake.

The ICC’s involvement in Sudan and Libya underscores these realities. The Security Council’s Sudan referral came in response to the crisis in the Darfur region. Ultimately, the Court decided to issue indictments against several Sudanese defendants, including the country’s president, Omar Al Bashir. While the Bashir indictment came on July 14, 2008 (followed by a second indictment, for genocide, in July 2010), the Sudanese president has yet to be arrested or transferred to the Court.

There are two reasons for this failure. First, there has been general hostility toward the indictment from regional leaders and countries. The African Union (AU), and a number of Arab governments, have refused to arrest Bashir or otherwise cooperate with the ICC. Most recently, in early June 2012, the AU called upon the Court to drop its case against the Sudanese leader.

Second, western governments, including the United States, have been unwilling to push for enforcement of the outstanding ICC indictments, giving priority to the political and diplomatic processes involved in resolving the Darfur crisis. Most recently, the UN itself provided a helicopter ride to another indicted official, Ahmed Haroun, governor of the Sudanese state of South Kordofan, to facilitate his attendance at a meeting to resolve a local conflict within his governorate. 

The Security Council’s involvement in the Libya case created similar complications for the ICC. The Council’s February 2011 referral came shortly before its decision to authorize a no-fly zone to protect civilians in Libya against government attack. The ICC referral eventually resulted in indictments against Muammar Qaddafi, his son Seif al-Islam, and former intelligence chief, Abdullah Senussi.  

As the no-fly zone turned into more direct military intervention, international response to the Security Council’s involvement, the ICC referral included, became increasingly critical. The Council’s unwillingness to act in Syria further exacerbated these concerns, bringing increased accusations about the political nature of the Libya case.

Meanwhile, death and politics have prevented the ICC from taking custody over the indicted Libyans. Muammar Qaddafi was killed in fighting inside the country in late October 2011. Senussi continues to face an uncertain future awaiting extradition from Mauritania, and Libyan officials have rejected an ICC order to hand over Seif al Islam, who they are currently holding for trial in Libya.

In light of the Sudan and Libya cases, the ICC has been criticized by many in the region as irrelevant, impotent, and subject to the will of powerful western states. The ICC’s recent decision to bar the Palestinians from joining the Court has added further fuel to this fire.

In January 2009, the Palestinian Authority lodged a declaration with the Court voluntarily acceding to the ICC’s jurisdiction for events occurring in the Palestinian Territories after July 1, 2002.

Over three years later, on April 3, 2012, the Office of the Prosecutor issued a decision on Palestine’s membership bid. Relying on its lack of member state status within the UN, the ICC Prosecutor barred Palestine from joining the Court. While noting that over 130 governments and international institutions had recognized Palestine as a state, the Prosecutor found its status as “observer,” rather than “Non-Member State,” in the UN to be sufficient to foreclose ICC membership for the time being.

A number of legal experts and NGOs condemned the decision as reflecting political bias and violating the ICC’s Statute, which reserves questions of jurisdiction exclusively to the Court’s judges.

These criticisms aside, the Palestine case may also present a potential strategy for addressing the political effects of Security Council referral to the ICC. Rather than merely rubber-stamping Palestinian membership, the Court took pains to consider whether jurisdiction over Palestine would be appropriate. In cases involving the Security Council, the Court could make a similar point of addressing the validity of its jurisdiction under Chapter VII.  Courts regularly consider issues of jurisdiction on their own motion, that is, without having the issue raised by any party to the matter. In cases referred by the Security Council, the ICC could make the effort to genuinely consider whether the requirements of Chapter VII have been met.

A similar circumstance is currently unfolding in another legal institution mired in regional controversy, the Special Tribunal for Lebanon (STL). Established in 2007, the STL is a specialized international court investigating the assassination of Lebanese Prime Minister Rafik Hariri and several other Lebanese nationals between October 2004 and December 2005.

Most recently, defense attorneys brought a case challenging the STL’s very existence. Among the arguments presented, defendants claimed that the Security Council abused its powers in invoking Chapter VII to pass Resolution 1757, which paved the way for the STL. According to defendants, the assassination of Rafik Hariri, and the other Lebanese nationals, did not constitute a threat to international peace and security. As a result, because its establishment was unlawful, the STL cannot, in defendants’ view, provide a fair trial to the accused.

A decision in this case is expected to issue toward the end of July. Nevertheless, together with the ICC’s approach to Palestinian membership, it presents a possible means of dealing with concerns about the Court’s biased, political behavior. As long as the Court engages in a credible and authentic inquiry into the jurisdictional question, it may help counteract the harmful political effects of Security Council referral and go a long way to rehabilitating the ICC’s reputation in the Middle East and North Africa, as well as the world at large.