Grim rules of engagement after ten years with the ICC

Published: March 12, 2013

Picture the ceiling swirling, dense with grand ideas expressed that day. Sorrowful, urgent, and ambitious: the words that delivered the first permanent International Criminal Court were a mural of life under universal law…

Picture the ceiling swirling, dense with grand ideas expressed that day. Sorrowful, urgent, and ambitious: the words that delivered the first permanent International Criminal Court were a mural of life under universal law.

The inauguration of the ICC, held in the ancient Ridderzaal in The Hague on 11 March 2003, marks its first decade this month. The Court was created to end impunity for the worst known crimes: genocide, crimes against humanity, war crimes, and aggression. Ten years on, the mural of justice and lasting peace remains an aspiration.

The opening lines of the Court’s founding document, the Rome Statute, have unintentionally proved idealistic. Together, 121 state parties “resolved to guarantee lasting respect for and the enforcement of international justice.”

It took Plato several books of The Republic to prelude, but finally, Socrates captures justice as the result of a “well-ordered” society where just rules are followed. Creating the ICC did not guide governments to follow a set of just rules. Instead, the last decade witnessed chaotic engagement in the global war on terror, and uninterrupted civilian murder and bodily violation of gross magnitude. Governments unwound rules that international lawyers understood were settled.

On one important count, the ICC vision is fulfilled. Ten years ago, eighteen judges became “the embodiment of our collective conscience,” in the words of former United Nations General Secretary Kofi Annan. The bench has since been spotlessly decision-making, manifest in its first and widely praised conviction of Congolese war criminal Thomas Lubanga. Success is also evident in the first referral by the UN Security Council to the ICC in 2005, a feat for the Court’s credibility. Other successes are that the first Chief Prosecutor retired in grace after a long and colourful term, and that he showed an arrest warrant issued mid-conflict – as sought for three top Libyans during the 2011 civil war – is compatible with, in Annan’s words, “the delicate process of dismantling tyrannies.”

In short, the ICC was a milestone in firmly legitimating the international community’s prerogative to deliver justice. It was not, however, a compass of any strong function for guiding rules-based conduct by governments. The major failures that followed the inauguration revealed that when they prefer, governments are willfully blind to the legal pathways they help to chart.

First and most shameful, just as “never again” after the Holocaust was no end (it’s been “never again, never again, never again …” as the world watched genocide in Cambodia, Rwanda, Bosnia, etc.), the international community is still watching mass crimes against humanity. In the Rome Statute, states vowed they were “determined to put an end to impunity.” It took too long to intervene as conflict tore open Sudan and Côte d’Ivoire, and the world still watches Congo and Syria burn. Imagine a family’s grieving for the violent death of one young child, the bloodied corpse of one grown son, the rape of one mother. This is likely all we can imagine. The horror in Syria and Congo is beyond empathy.

Leaders in these countries ought to agonize, anticipating an arrest warrant. One autocrat cannot allow the rape of nearly 1,700 women and girls – in the first half of 2012 alone in just two of Congo’s Eastern provinces, nor can one tyrant oversee 70,000Syrians slaughtered, without also violating humanity. The failure is precisely that prosecution awaits because, once begun, carnage thrives on inaction.

In a second remarkable failure, the international community sustained an illegal extraordinary rendition program for nearly a decade under direction of the United States Central Intelligence Agency. Canadians are familiar with the consequences, the damage to one individual and his family, through the experience of Maher Arar. The Canadian engineer was sent to Syria by the US Government in collusion with Canadian authorities, detained for close to a year and tortured. A report from the Open Society Justice Initiative on the global program found 54 countries, including Canada, facilitated the CIA’s secret detention, rendition and interrogation program following September 2001.

Like Arar, many prisoners were tortured although the practice is banned by international law. This law is not the sort one state can opt to ignore, as easy as North Korea ending a peace pact. Instead, jurists call it binding: torture is universally unlawful. Again defying the Rome Statute and its call to respect and enforce international justice, dozens of states, even parties to the Convention against Torture, broke fundamental shared rules.

Habeas corpus is still unrestored. This is clear in the dismal treatment of extraordinary rendition victims. According to the Open Society Justice Initiative, only four countries have issued compensation, and just one, Italy, has convicted officials for their involvement. It is likewise clear in the continuing life of the detention camp at Guantanamo Bay used by the US military and CIA to detain without trial and interrogate prisoners since 2002, despite earlyevidence of torture.

Third, there is no code of conduct for targeted killing by drones. In February, President Barack Obama’s Administration ended its silence by acknowledging a policy that allows the President to authorize the killing of virtually any national, including Americans, without due process. The policy is criticized as both strategically disastrous and a flagrant breach of rule of law. It’s contagious too, with an estimated 680 drone programs worldwide, up from 195 in 2005.

Another recent estimate pegs killing by the American drone program at 4,700. Outside the combat zones of Libya, Iraq and Afghanistan, the killing happens in Pakistan, Yemen, Somalia, and possibly Philippines. The word ‘possibly’ is a characteristic label for the secret and extrajudicial killings, for instance, on which laws of war and human rights the US Government applies to the program. Possibly all, or possibly none, according to the cryptic White House response to a UN review that “targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles, comply with all applicable law.” Beyond awhite paper leaked in February, all legal reasoning is classified. The deaths of 4,700 people, by a secret decision without a judge, signal that national interest still crudely trumps universal rules.

To peg agreement on the Rome Statute as a breakthrough for ending impunity is to miss the bigger picture, that the ICC authors oriented global relations towards rule of law. But ten years show the pivot didn’t last. The indicators are enduring, mass crimes against humanity without intervention, a globally executed extraordinary rendition program, and another illegal but consensual program, non-battlefield killing by drone.

The decision to put Nazi war criminals on trial in 1945 was, as Chief Prosecutor Justice Robert Jackson phrased, “the greatest tribute that power has ever paid to reason.” The ICC continues that tribute, but in disunity with leading foreign policy.