The ICC at 20: Time for a New Compact

17 Jul, 2017 | Press Releases

Emma Bonino*, Rome, 17 July 2018

I recall vividly the sweltering weeks spent in Rome back in 1998, conducting intense negotiations on the Rome International Criminal Court Statute in my capacity as representative of the European Commission and camping out at the FAO Headquarters alongside my friends in the Transnational Radical Party and other fellow activists. The ICTY had just been established and alongside Marco Pannella, Robert Badinter, Ben Ferencz, Cherif Bassiouni and many others, we could see the time was ripe to move set our campaigning sights on a permanent international criminal jurisdiction for the whole world.

Now, twenty years later, it is a good time to ask ourselves “Are we now, in 2018, where we thought we would be now, back in 1998?” It is not a simple question, and it does not have a simple answer.

In some ways, yes. Did we think the adoption of the Rome Statute would suddenly mean everyone had the political will to abide by and enforce international humanitarian, human rights and criminal law? No, we didn’t think that. Did we think the existence of the International Criminal Court would end war crimes, crimes against humanity and genocide? No, we didn’t think that. Did we think that when the ICC started its work it would be smooth sailing, with defendants a-plenty facing justice and victims obtaining the redress they deserve? No, we didn’t think that.

For all the promise of the ICC, we knew and we know that by itself, the ICC cannot end war crimes, crimes against humanity and genocide, much less be the solution for even bigger issues like peace, reconciliation, rule of law and post-conflict reconstruction. So in that sense, we are where we thought we would be, with all these challenges continuing to be of critical importance and continuing to require innovative solutions.

But in some ways, no. Back in 1998, we never thought the Rome Statute could enter into force so quickly. After the Statute was signed, we knew it would be difficult to have it enter into force. But we believed it could be done, so we adjusted our campaign to focus on encouraging swift ratification, campaigning around the world to sensitise government and public opinion. We succeeded, although we never thought that hard work would pay off in less than 4 years. And we never thought we would witness the jubilant mass ratification in April 2002, with ten States coming together to be among the “first 60 to ratify”, which resulted in the Rome ICC Statute entering into force on 1 July 2002.

Fast forward to 2018 and we sense a very different mood. One State (Burundi) has withdrawn from the Rome Staute, with another (The Philippines) set to withdraw early next year. Two other States (South Africa and the Gambia) threatened to withdraw, but ultimately took it back. When States Parties meet for the annual session of their Assembly, there is talk of the importance of the ICC and its role within international peace and security, but talk inevitably gets bogged down in budget minutae and other technical matters.

In one sense, given the seemingly slow progress and recurring public relations problems of the Court’s own making, who can blame them? We want to see results for what we put in. We don’t want to see public infighting within the Court, discord and disharmony, among several other problems. These things have no place in an institution like the International Criminal Court and makes our work promoting and supporting the ICC harder. We need a new compact. The Court needs to do better. It needs to review its past performance, ask itself some hard questions and make some hard choices so it can work more effectively and efficiently. If it does that, it will have the moral high ground when it asks for what it needs and we will be in a better position to support and promote it.

At the same time, the international community needs to do better to support the ICC. The Security Council should do more to address non-cooperation in cases it has referred to the ICC itself, for example by doing something when President Al-Bashir of Sudan, an ICC fugitive, travels to ICC States Parties. The EU and its member States need to do more – the contribution of the EU, its member States and its citizens to the negotiations in Rome were outstanding. The EU should take a more active role and increase its own ability to support the ICC, including through establishing a Special Representative on International Humanitarian Law and International Justice. Aside from telling victims that the EU is on their side, it would be a fitting reinforcement of the leading role the EU has played for the ICC before, during and after the adoption of the Rome Statute 20 years ago.

Together with No Peace Without Justice and everyone else who never rested on their laurels, we stand strong to support the fundamental principles of the ICC. We continue to believe there must be no safe haven for war criminals anywhere and that nobody should feel they are able to commit these terrible crimes with impunity.

Sen. Emma Bonino, Founder of No Peace Without Justice, former Minister of Foreign Affairs and European Commissioner (former Head of the EU Delegation at the Rome Diplomatic Conference on the ICC)