In yesterday’s post on the Atlantic Council website, several prominent individuals argued that the International Criminal Court (“ICC”, “Court”) needs fixing. Citing the Afghanistan decision as an example of the Court’s inability to operate as it should, they argued that there is a “growing gap between the unique vision captured in the Rome Statute, the Court’s founding document, and some of the daily work of the Court” and that an independent assessment is needed. Elsewhere, it has been argued that the Court has produced a “paucity of concrete results”, as there have not been many convictions, which has also been cited as a challenge to its legitimacy. However, is the ICC’s track record in convicting people really a fair indicator of its weakness? Or even of its strength? While it is clear that there should be an independent assessment, the indicators must be clearly evaluated for their fairness, especially in a highly politicized context such as that in which the ICC operates.
Former ICTY and ICTR prosecutor Richard Goldstone has previously addressed this point, arguing that using the number of convictions at the ICC as an indicator of its success or failure is not fair. Mr. Goldstone makes a critical point: “I have often cavilled at criticisms of acquittals in international criminal courts. I have said on many occasions that the fairness of any criminal justice system must be judged by its acquittals and not by convictions. As a former chief prosecutor of the ICTY and ICTR, I welcomed acquittals that helped establish the credibility of those courts.” Mr. Goldstone is right: a court – especially an international criminal court – cannot and should not be judged to be a failure or inept because of its number of convictions. This is not to say that the ICC has not stumbled or made mistakes along the path, but it is neither fair nor appropriate to level criticisms of failure or illegitimacy against the Court because it has not convicted more people. It is worth remembering that the Court’s job is not to deliver convictions to the public or to anyone else, but to deliver fair and impartial trials. If it were to fail in this respect, it should be held to account, and it should be constantly monitored and scrutinized to ensure that this does not happen. However, monitoring and scrutinizing the fairness of Court proceedings is fundamentally different from using its attempts to uphold fair trial rights and the consequently low number of convictions as evidence of its failure or weakness as an institution. To this end, it is unequivocally preferable to have a Court that acquits rather than convicts when in doubt.
If there is an independent assessment of the Court’s structures, it is important to contextualize the analysis and to make the political context in which the Court operates and its limitations a central feature, rather than honing in on conviction rates. The political problems that are and have been hindering the ICC’s performance are macro issues, and the micro issues that are symptomatic of deeper problems should not be confused with foundational weaknesses. It is undeniable that the Court needs more political support, and allowing it to function – even when it does not suit state political or financial goals – is imperative for its long-term survival, especially considering that in some cases the Court cannot act due to political and structural limitations that have been in place from the beginning. This was perfectly illustrated in 2014, when Russia and China blocked a Security Council referral of Syria to the ICC, displaying the Court’s utter reliance on international political will. Independent, impartial judicial action has been the aim and objective of international justice from the beginning, but the international community has not yet succeeded in achieving this goal. When will it?