The International Criminal Court (ICC) was created to put an end to the presumption of impunity for the powerful. But in practice, the court’s ability to deliver justice free of politics has been limited, and its reach is not universal. Atrocities that occur on the territory of states that haven’t joined the ICC remain an extremely tough case for the pursuit of accountability, especially when committed by state actors.
It is a truism that perpetrators of mass atrocities don’t prosecute themselves. For states that have joined the ICC’s treaty regime, the chance of justice for international crimes, even when perpetrated by state actors, is potentially improved. The court can initiate its own prosecutions or use the threat of action to incentivize the state to act domestically. But for states that have not signed the treaty, a UN Security Council resolution referring the situation to the ICC is required to engage either of these mechanisms. And because such a resolution requires the support (or abstention) of all five veto members, referrals are rare.
If governments that have committed atrocities won’t prosecute themselves, and ICC action isn’t on the table, is impunity in these cases a foregone conclusion? Does this mean efforts to pursue justice in these cases are a lost cause? This question is not academic. While 123 states have signed on to the ICC, a significant percentage of the world’s territory remains exempt from the court’s jurisdiction. Not coincidentally, the holdouts include numerous states that have unleashed devastating violence against civilian populations. If governments that have committed atrocities won’t prosecute themselves, and ICC action isn’t on the table, is impunity in these cases a foregone conclusion? What can advocates of accountability do?
