International Criminal Justice, what’s it good for?

By Poonam Sandhu

The views expressed in this blog are my own.

This year marked the 20th anniversary of the entry into force of the Rome Statute, the International Criminal Court’s (ICC) founding treaty. The anniversary was celebrated during my time working for Human Rights Watch (HRW), which inspired a different kind of reflection on my part as I learned about International Criminal Law (ICL).

The project of global accountability for the gravest crimes is a tremendous project and a work in progress that must continue in order to promote justice and reconciliation. Working in this field, however, it is hard to not sometimes feel discouraged and disheartened by long delays owing to factors such as outstanding arrest warrants or the ICC’s budgetary constraints.  At the same time, accountability has been unevenly addressed with certain situations being allocated more media attention, and ultimately more resources, while other investigations have been stalled.

The politicization of responses to atrocity crimes and double standards was something that I found frustrating while learning about the international criminal justice regime. For example, the situation in Ukraine was referred to the ICC Prosecutor’s office between March and April 2022 by 43 states parties to the Rome Statute. An investigations was opened almost immediately on March 2, 2022 and shortly after, the ICC deployed its largest ever team of experts (42 investigators) to Ukraine to investigate alleged war crimes. This has been accompanied by various states making donations to the ICC following a call for voluntary contributions by the Court’s Prosecutor. Although these contributions are to be used to support the work of the Office of the Prosecutor across all situations, the messaging around them has often been misleading, with some states linking them to the investigation in Ukraine.[1] Civil society groups vocally denounced this approach. Contrast this with other situations, such as Afghanistan, for example, where a request to open an investigation into alleged war crimes and crimes against humanity committed since 2003 was only made by the ICC Prosecutor in 2017 and the situation has faced various challenges, including strong politicized opposition by the United States, and prolonged delays.

The problem of double standards in international justice is an issue that many civil society organizations, including HRW, have been active in exposing and denouncing. It is not just a matter of principle but also an issue that has serious implications for public confidence in the Rome Statute system and in turn, has implications for victims’ access to justice. It goes without saying that international justice cannot be achieved unless it is evenly applied to all situations and contexts where allegations of serious crimes are raised.

Notwithstanding the issue of double standards, it is important to remember that the Rome Statute system is still relatively new and continues to develop. Many of my colleagues at HRW and other organizations working on international justice emphasized to me that when they started their careers, the concept of ICL did not exist on the scale that it does now; in the last 20 years the justice landscape has radically transformed in a way that they could not have imagined.

The growth of hybrid and domestic accountability mechanisms has been something that I have learned about this summer that has given me renewed hope in the international justice project. One particularly inspiring example was the first trial at the Special Criminal Court in Central African Republic, which I followed closely this summer.

The case concerns three accused who are facing war crimes and crimes against humanity charges in relation to the 2019 massacre of civilians in the villages of Lemouna and Koundjili, Central African Republic. Regardless of the outcome of the forthcoming verdict, the existence of a domestic court to prosecute serious crimes with closer proximity to victims, and its ability to foster trust between the public and state institutions, is an achievement that must not be understated.

This leads me to one of the key takeaways from this summer, which is the fact that ‘international justice’ can be a somewhat misleading term as domestic justice developments are just as important, if not more so, than developments at the international level. Being an effective practitioner in international justice requires a nuanced understanding of domestic judicial systems, capacities, and socio-political and cultural contexts. Working at HRW has solidified my understanding of human rights as a continuum between the domestic and international levels, which is a lesson I will center in my future professional endeavours.

[1] See e.g. German Embassy The Hague, Germany voluntarily contributes one Million Euro to Prosecutor’s Khan’s indispensable effort to fight impunity in #Ukraine and other ICC situations. We need to support the rule of law NOW.” (28 June 28 2022 at 11:08am EST), online: Twitter: <twitter.com/GermanyinNL/status/1541800819355533312>; AP News Wire, “UK to contribute money, experts to ICC’s Ukraine probe” (24 March 2022), online: The Independent <www.independent.co.uk/news/ukraine-ap-icc-dominic-raab-netherlands-b2042911.html>.

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