Interview: Is the International Criminal Court Losing Its Grip?
The ICC has been part of the international infrastructure since beginning operation in 2002. Russia, never a full member, has recently indicated that it is formally withdrawing its signature from the founding statute of the ICC. Three full members – Burundi, Gambia and Namibia have stated that they are considering rescinding their memberships.
Barrister Toby Cadman, an International law specialist in the field of war crimes, human rights, terrorism and extradition and Jack Rice, a criminal defense trial lawyer in St Paul, Minnesota and former CIA officer join this program and share their valuable insight into the workings of the ICC.
Toby Cadman depicts the ICC as being the first international court mandated to deal with international crimes, war crimes, genocide, and crimes against humanity. But, as Toby points out, it operates in a limited way as it only has power on the territories of those countries which ratified the statutes, and only deals with cases that have been referred to it by the U.N. Security Council. Syria, for example would thus fall outside of its jurisdiction.
Jack Rice points out that the ICC has not really been involved with challenging sovereignty, as it was designed to run alongside existing laws within countries. If individuals or groups cannot be prosecuted within their own countries, then and only then does the ICC step in. The fact that Russia, the US, China and India never became full members meant that the ICC has never become a world force, thus its jurisdiction and real power is severely limited.
Thus the ICC has problems implementing its rulings, which is one reason why only two people have been convicted in the fourteen years of the court’s existence. Toby Cadman points out the example of the President of Sudan who was indicted but has not been brought to justice because the ICC doesn’t have a global police force, and the ICC doesn’t have an enforcement mechanism. As Jack points out; the question is: who goes after him?
The ICC does not come cheap; the budget for 2015 alone was some $152 million. Toby Cadman points out that this is not a huge amount of money in terms of what they are being asked to do. In fact, Toby says, the ICC is limited by a lack of investigators to go out into the field because of lack of funding.
Host John Harrison suggests that the whole philosophy behind the ICC is perhaps inappropriate. He suggests that the ICC is biased, and a continuation of the idea of international transitional justice, first used at the Nuremberg and Tokyo war crimes tribunals. One Indian judge who served on the Tokyo tribunal described the processes as being an imperialistic ‘victor’s charter’ where the Allies excluded themselves from all crimes. John Harrison also quoted Duncan McCargo, a professor in politics at the University of Leeds, who talks about the concept of transitional justice is rooted in an ideology of ‘legalism,’ which regards justice as superior to politics — as ‘somehow suprapolitical and even beyond criticism.’
Toby Cadman dismissed both of these suggestions, saying that war crimes, genocide, crimes against humanity are political by their very nature. No international lawyer, Toby says, would disagree that the Nuremberg tribunals were political, and in most conflicts you have the winners prosecuting the losers, and it is never fair. But, Toby says, the reason why you have a permanent international court is to deal with these issues. The idea that it is a biased imperialistic court are completely unjustified, he says. Jack Rice says that there has to be an international body which points out that when a country or an individual goes beyond the line, it has to be called to justice. The main idea is to stop impunity Toby Cadman says.
When discussing Russia withdrawing its signature form the founding documents of the ICC, Toby says it is a bit like refusing to go to party which you haven’t been invited to, and that’s why this really is a non-issue. Jack Rice points out that because it is not a world force, any criticism of Russia is perhaps nonapplicable because the Americans have also faced the same sort of accusations which the Russians are facing. The Americans, Jack says are keeping quiet because they are not a member of the ICC either.
A clear verdict about the ICC was not reached, however the court does seem to be losing power in the international order today.
This interview was originally published at Sputnik on 8th December 2016.