With only four convictions to its name since it began in 2003, a UNSW Canberra academic is asking the question of whether the International Criminal Court (ICC) is failing as an organisation.
Associate Professor Douglas Guilfoyle said that it is time to stop thinking about the ICC as a universal justice project and to start thinking about it like any other international organisation.
“When we look at public organisations which aren’t living up to their mandate we usually ask questions about their operating environment, structure, and leadership. For too long scholars, lawyers and activists have been reluctant to point out the obvious: The ICC is not presently working,” said Associate Professor Guilfoyle.
The International Criminal Court was established to prosecute the crimes of greatest concern to the international community including war crimes, genocide and crimes against humanity. It has jurisdiction over its 123-member states and is expected to intervene in continuing conflicts rather than deliver post-conflict justice.
“The court itself faces challenges which previous international tribunals, such as those established for the former Yugoslavia and Rwanda, did not, and it’s fair enough to say the Court cannot succeed on its own,” said Associate Professor Guilfoyle.
For one, the ICC faces a hostile political appointment with the United States actively opposing it and recently denying its prosecutor travel visas.
While the court’s job is obviously difficult, does that explain such a low number of convictions for major international crimes over 18 years? According to Associate Professor Guilfoyle, it does not. He says there is evidence that the Court’s structure does not always work.
“For example, its proceedings include a Pre-Trial Chamber level which is meant to prepare cases for trial – but rather than speed things up it seems to have slowed things down. Further, rather than weed out weak cases, several cases sent to trial have collapsed.
“It is also not clear that the court is a well-functioning working environment. The judges have accused each other of unfairness in print, one accepted an ambassadorship from their native government without resigning the bench, and a group of them have – in a rather tone deaf move – been litigating for higher pay before the International Labor Organisation. The ILO has also ruled against the Court in a slate of unfair dismissal cases.”
Associate Professor Guilfoyle says there is a way forward including a technical tidy up of the Court’s rules and procedures, but what is really needed is a change in culture and leadership.
“Everyone is looking towards the election of a group of six new judges and a new prosecutor in 2021, when a number of present terms expire,” he said.
Douglas Guilfoyle’s work on the ICC and organisational failure was published with the Melbourne Journal of International Law in May 2020.