By Luis G. Franceschi
Truth is one of the greatest challenges of today’s hyper social information age. Gigabytes of fake news, biased perceptions, politically motivated agendas, and superficial reactions have thwarted and deformed our understanding of reality and the rule of law.
Ever since I became the Senior Director for Governance and Peace at the Commonwealth Secretariat I have been at a unique vantage point from which to appreciate the international order. My academic background gave me understanding of reality. My current position as a primary source of information helps me see how this reality is constantly under threat of manipulation for the petty immediate gains of a few in the world of power, information, and money.
In recent years, like most international organisations, the International Criminal Court (ICC) has faced undeniable challenges. Yet these challenges are not an anomaly, but rather symptomatic of the deeper difficulties the ICC faces in its efforts to reconcile its aspirational raison d’être with the realities of contemporary international relations.
The ICC is as much a child of the idealism of the post-war era as it is a modern institution. In that heady time of aspirations, it was thought that the international legal order could be developed to the point that it would eventually supersede the conventional dynamics of international relations.
The ICC did not come about for many decades, yet it was in this idealism that it laid its roots. By the time it was finally brought into being, the world was in an era of renewed optimism, the so-called “end of history”, when it was felt that the international legal order was here to stay.
The dream of international law was revitalised, and there was no greater symbol of this than the ICC. With the ICC and similar institutions, it was hoped the world would settle into a relatively placid system of international law and judicial accountability.
Sadly, this was not the case and in the ensuing years the spectre of power politics grew ever larger, to the point that hopes for the supremacy of international law faded from an almost-realised ambition back to a distant dream.
Since then the ICC has been constrained from its full potential by the decisions of major powers; the disappointing decision by the Trump administration to target not just the institution, but also its personnel, is indicative of this, but the issue runs deeper.
The ICC, like any other creature of international law, relies upon the compliance and cooperation of nations. Nations unfortunately, are barely compelled to acquiesce to the authority of any external entity. Subsequently, the ICC can at best hope that nations will simply choose to work with it, which is not a strong foundation on which to build a system of global justice.
Thus, in a world where national power is functionally synonymous with national agency, the ICC has only ever been able to have an impact in nations that tend to have, if I may overly simplify matters, less agency.
This leaves a damaging impression and has led to more than a few accusations of “imperialism” or “bias”. The solution here is clear, if not easy; the ICC needs to widen its remit and expand its focus. However, given the current pressures and constraints placed upon it, it is not clear that this will be immediately possible. From lack of political support to lack of funding, the ICC is hampered in its capacity.
Like so many international organisations, the ICC is trapped in a situation where it cannot achieve its intended outcomes due to lack of support, but subsequently has further assistance withdrawn because it has not been able to achieve its intended outcomes. In short, states are in many ways dictating the fate of the ICC, then blaming the ICC for this.
This observation is not, however, intended as a eulogy for or condemnation of the ICC. It has, under capable leadership and with the strong support of stakeholders, managed to weave its way through the labyrinth of internecine international dynamics to bring justice where it can. As such, every successful sentencing at the ICC has been, in its own way, a partial realisation of the post-war dream of a rule-based international order. Rather than be defined by the implicit rules of the contemporary international system, the ICC has managed to chart its own course and implement those post-war aspirations in the face of overwhelming challenges.
And it is in this context that we must laud the achievements of former Prosecutor Fatou Bensouda; despite severe challenges to the ICC’s functioning, her nine years in the role were defined by noteworthy milestones. In the Ntagandacase, the court pronounced itself on the crime of sexual slavery and extended the protections under international humanitarian law to also cover crimes committed by an armed group against its own members.
In the Mahdi case the court protected historic monuments and buildings and found that their violation is a serious crime under international law. These achievements are all historic, laudable, and quite honestly, no mean feat. With these cases, the court has managed to ensure that justice is done, but also further affirmed the role of law and norms in the international system.
Indeed, every success of the ICC creates ripples beyond the mere case in question; it reinforces notions of international law, builds confidence in the idea that anyone can be held accountable, and, perhaps most importantly, shows those who are oppressed and living in fear that anyone can be overcome, and that there is a chance for justice out there. The ICC acts as more than a court; it serves as a lodestone for the journey to international law, demonstrating to us what is possible if we recommit ourselves to these principles.
Thus, rather than criticising the ICC for its attempts to function in an imperfect system, stakeholders and external actors should wholeheartedly support the aspirations of the institution. We may yet be a long way from the vision that once seemed imminent; that international law would hold firm over every inch of the globe. But equally, the ICC has of late shown us that even in our current system, progress can be made, and the role of international law should not be written off.
As Karim Khan begins his tenure, he is faced by structural, jurisprudential, legal, and political challenges. Khan’s experience in the courtroom and prestige as an aggressive and intelligent litigator have lifted the bar of expectations quite high.
Anyone who believes that there is more to this world than the interminable clashing of states should watch closely, and be ready to offer their support to the ICC and the dream of a better tomorrow.
Prof Luis G. Franceschi is Senior Director ̶ Governance and Peace ̶ at the Commonwealth Secretariat, London