The coming choice for the ICC (and its member states)

Australian academic Douglas Guilfoyle has an insightful recent post at the European Journal of International Law’s blog. Drawing on several developments, Guilfoyle offers this perspective on the International Criminal Court’s trajectory:

[T]wo broad visions of the Court are available. First, a vision of the Court as de facto a universal institution, hampered somewhat by the fact that not all states have yet joined it, but legitimated principally by the overriding importance of its mission (i.e. ending impunity for the most serious crimes) (“the universalist view”). The alternative is that it is an international organisation founded in member state consent, embodying standards to which they have collectively subscribed (“the positivist view”). If one takes the positivist view of the Court, then its core mission is holding its club of member states to account and everything else – even if entirely within the realm of legality – is peripheral to that mandate.

After a very cautious first decade-plus, in which the court avoided or slow-walked investigations involving non-member states, the institution has set a much more aggressive course. Signs of that approach include the Afghanistan investigation (and, in particular, the inclusion in the investigation of allegations against U.S. personnel), the Bangladesh/Myanmar investigation (with its innovative approach to jurisdiction), and likely soon a Palestine investigation (involving complex questions of statehood). As Guilfoyle points out, advocates are picking up on the court’s cues and seeking to place matters before the court that would at first glance appear well beyond its jurisdiction (notably Chinese treatment of its Muslim population).

I think this path leads nowhere good for the court. My reading is that the world’s major powers are at this point either hostile to the court (the United States), deeply skeptical about its value (China, India, Russia), or quietly concerned about its trajectory (Brazil, Britain, France, Japan). This state of play, I realize, is a feature and not a bug for many international justice advocates, who see the court as a vital challenge to sovereign authority. But I’m enough of a realist to think that an international organization dependent on the cooperation and good will of states cannot succeed in this environment.

The decisive question is therefore whether and how a course correction is possible. I see two main possibilities: internal and external. An internal correction would likely involve some combination of prosecutorial discretion and revised jurisprudence from the judges. This strikes me as possible, particularly the prosecutorial discretion element. But recent precedent is boxing the court into a corner, and the influential activist community will alway push for an assertive court that pushes the limits of its jurisdiction. That pressure may not be easy for future prosecutors to resist.

What about some kind of external adjustment? The Security Council itself is perhaps the simplest option for external adjustment, given that the Rome Statute already accords it the power to freeze ICC investigations. Employing that power broadly, the Council could attempt to put some kind of blanket freeze on investigations of non-member state nationals, absent explicit Council permission. But any attempt by that exclusive body to effectively rewrite the court’s jurisdictional rules would encounter severe pushback just as a matter of institutional prerogatives.

That leaves some kind of broader negotiation as the most likely route to external adjustment. Might there be a meeting of the minds between the court’s most important member states that facilitates a new negotiating session? The diplomacy that surrounded activation of the crime of aggression could be a model, with influential non-members teaming up with a bloc of pragmatic member states to push a narrower view of jurisdiction. That narrower approach could be effectuated through some kind of implementing agreement or other instrument. (I’ve been immersed in law of the sea research recently, and it’s notable that there were two implementing agreements negotiated a decade after the UN Convention on the Law of the Sea was finalized. A third is being considered now.)

Skeptics will no doubt argue that there is zero chance of rewriting the court’s basic jurisdictional rules, which were the subject of such intense debate during the Rome Conference. They may be right. But we are now more than twenty years from Rome and a million miles in terms of the political environment surrounding the court. My impression is that a new realism (or perhaps just lethargy) has set in with many of the court’s members, and particularly its biggest funders. They are not seeing a major return on their investment in terms of conflict management or deterrence. Meanwhile, the diplomatic complications of free-floating international justice are evident. If the Biden campaign prevails, a newly competent U.S. administration might come to office just as the Palestine situation reaches full boil. The timing could be propitious for charting a path forward that recognizes both the importance of the ICC and the serious reservations of countries that have chosen not to join it.