August 12, 2020

Do Not Criple The International Criminal Court

By Steven van Hoogstraten.

There is a tendency amongst opinion leaders in this country to publicly distance themselves from the International Criminal Court. The ICC would be too slow in its proceedings, and the lack of involvement by the superpowers like China, Russia and the USA makes the whole operation rather meaningless. High time to admit it.  I listened to a radio broadcast the other day on Dutch station BNR , with 3 serious names from the Dutch public scene, including a well known lawyer in criminal matters, on the fortunes and misfortunes of the ICC. They all concluded that the case for the ICC had failed. In their view the road of international criminal justice had not led anywhere, and it was time to find  alternative solutions to re-establish peace and justice after conflict. 

I was more than baffled by that finding.  Surely, one can critisize certain features of the ICC, and notably that it is pretty slow to come to its verdicts.  But to conclude that international criminal justice can no longer be part of  the answer to conflict – whether international, or within the borders of a state – is absolutely beyond me.

This court, the International Criminal Court,  is the expression of the will of the world’s nations  (minus a few) that there should be no safe havens and no impunity for the worst crimes one can imagine: war crimes, crimes against humanity, and genocide. That common thinking is clearly laid down in the preamble to the Rome Statute of 17 July 1998, as can be highlighted by the following sentences. First comes the recognition “that such grave crimes threaten the peace , security and well being of the world” , and then the preamble states 

Affirming that the most serious crimes of concern to the international community must not go unpunished and that their effective prosecution must be ensured by taking measures at the national  level and by enhancing international cooperation, 

Determined to put an end to impunity for the perpetrators of these crimes …

The International Criminal Court now has the backing of 123 state-parties, including all the european nations, many african nations,  South America, , and a good part of Asia- Pacific.   It is highly regrettable that the major powers in the world (China, USA, Russia) have not signed up to the ICC, and it is even more regrettable that our western allies in the USA have decided to actively campaign against the Court, based on the fear that the ICC will one day come to judge the behaviour of the american military and its leadership.  But to conclude from that situation that the whole idea of international criminal law is flawed, is unfounded and too easy. A lot has been achieved in this field – look at the ICTY –  and a lot has still to come. The ICC has 28 cases sofar, and there are 9 preliminary examinations (including Palestine, Colombia and Ukraine).  I note that Omar Bashir is more or less on his way from the Sudan to the Hague, the Sudanese government at last following up the request of the Security Council.  

Hashim Thaci, instituut Clingendael.(Den Haag 23-04-18) Foto:Frank Jansen

Kosovo Chambers

It is of particular interest to note that – surprisingly – the USA recently applauded the prosecution of the current president of Kosovo Hashim Thaci for crimes committed in the years 1998-1999 before the Kosovo specialist chambers in the Hague. According to the british newspaper The Guardian of 24 June 2020 the US secretary of State Mike Pompeo wrote in March to Thaci that he supported the work of the Kosovo Court. The obstruction of the work of the court, Pompeo said “would leave a permanent spot on Kosovo, its commitment to the rule of law would be under question, justice for victims would be denied, and Kosovo’s furture would be blurred.”

This is the text of someone who gives the impression to believe in the role of criminal justice.  Very interesting to note that this comment – positive about the function of an international, if hybrid criminal court – comes from the same country that actively seeks to undermine the work of the International Criminal Court. I find that not easy to reconcile. My view is that the objections are purely politically inspired , and could  be withdrawn at a later moment and under a different administration. Would the preamble I cited from the Rome Statute not appeal to everyone ? 

City of Peace and Justice 

The Hague is proud to be the international city of peace and justice, and was even given the title of “the legal capital of the world, the epicentre of justice and accountability” (words spoken by UN SG Ban Ki Moon in the Peace Palace in 2013).  If that is the case, and I think it is, we should be ready to make our voices heard in matters like these, and reflect on them in public.

I was happy to read the president of the Assembly of State Parties, the South Korean O Gon Kwon , brought out a stiffly worded statement in relation to the new measures by the USA against the ICC “These measures are unprecedented. They undermine our common endeavor to fight impunity and to ensure accountability for mass atrocities. I deeply regret mesures targeting Court officials, staff and their families “( Press release ASP, 11 June 2020) .

About the author: Steven van Hoogstraten, is a Former Director of the Carnegie Foundation.

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