PERMANENT IS BETTER THAN TEMPORARY

In the wake of the latest chaos at the International Criminal Court over the Laurent Gbagbo decision by the Trial Chamber, it seems a good time to revisit the old debate on the efficacy of the permanent international justice system created by the ICC. Several excellent posts have appeared in the last few days that indicate that the ICC is in crisis. But really, has there ever been a point in the Court’s history that it has NOT been in crisis?

Starting from a crippling democratic deficit, the ICC now has a robust membership – granted; but the meaning of this membership is deeply complex. Cases like Ruto in the Trial Chamber and the Appeal by Jordan in the case regarding the arrest of Omar Al Bashir are only two in a large list of instances where being a State party to the Rome Statute has apparently no meaning – since the member states in question – Kenya and the Hashemite Kingdom of Jordan refused to co-operate with the Court.

Contrast this with the clear co-operation and membership mandates of the ad hoc tribunals, now a source of legacy and jurisprudence in international criminal law. They had a clear mandate to co-operate that was the basis of founding the jurisdiction of the tribunal. With the way clear for the concerned states to forge a consensus on the jurisdiction of the tribunal, very little time and effort was expended on requesting co-operation in the framework of the ad hocs. Of course, the hybrid tribunals such as the UNAKRT / ECCC are a separate story of foiled attempts at co-operation despite a consensus. While co-operation of member states is the hallmark of a permanent institution, the ICC has not had much success with its current set of members.

The track record of the two ad hocs remains in impressive contrast with that of the ICC – during its active life from 1995 to 2017, the ICTY indicted 161 individuals of whom 99 were sentenced, 19 acquitted and 13 referred to domestic courts.  The ICTR, during its period of activity, indicted 96 individuals of whom 62 were sentenced, 14 acquitted and 10 referred to domestic courts.  Both of these are now succeeded by the UN MICT, in a complex passage of institutional history – that has inherited important pending trials at both tribunals and is also responsible for the fugitives yet to be apprehended by the prosecutorial and investigative mechanism of both tribunals.  In contrast, since its entry into force in July 2002, the ICC has had 28 cases, with 34 warrants of arrest issued, 24 acquittals, 8 cases closed, and 4 convictions pending final decisions. In addition the ICC has 11 situations under ongoing investigation. These numbers speak volumes about the co-operation of states parties to the UN and to the ICC. The co-operation of member states used to translate into consensus in the establishment of ad hocs with a clear mandate and an uncontentious founding basis of their jurisdiction – trials moved rapidly to admissibility. Whereas, in this permanent institution, we find stalemate after stalemate – showing that political co-operation cannot be counted on when the institution created by the member states turns around and requests their co-operation in investigations and indictments that might destabilize their own political capital.

The question remains open – is permanent better than ad hoc, really?

My arguments for Fallacies Two and Three follow…