Paul Bradfield

The International Criminal Court is at a crossroads. It seeks a new chief prosecutor to succeed the incumbent, Fatou Bensouda. For her successor, huge challenges – both legal and political – lie ahead. The court is about to embark upon a new and difficult era, and the outcome of a crucial appeal hearing this week will shape its legacy for years to come.

Earlier this year, a panel of three judges rejected an application by the prosecutor to investigate alleged crimes by the Taliban, Afghan forces and US/CIA personnel in Afghanistan, because they considered an investigation would be unfeasible, and as such, would not be in “the interests of justice”. The decision led observers to question the role of the ICC within the international legal order. Appeal judges have convened a hearing this week to decide whether this decision was correct or if it should be overturned. The outcome will determine whether the court can truly rise to the challenge of its mandate.

Since the ICC became operational in 2002, it has endured a turbulent two decades, enjoying successes and incurring setbacks. The first chief prosecutor, Luis Moreno-Ocampo, adopted a public and highly unorthodox approach, issuing warrants for high-profile suspects, such as the former president of Sudan, Omar al-Bashir. Historic convictions of Congolese rebels for crimes such as conscripting child soldiers were later offset by unsuccessful prosecutions arising from conflict in Kenya and Ivory Coast, and a number of acquittals. Hard lessons were learned.

Ocampo’s successor, Fatou Bensouda, has sought to expand the court’s work both geographically and thematically, bringing new charges such as forced marriage. Importantly, she has opened the court’s first investigations outside of Africa, in Georgia and most recently in Bangladesh/Myanmar, focusing on the plight of the displaced Rohingya.

The principal challenges facing the ICC today are threefold: geography, co-operation and interference.

First, the ICC has long been criticised for having trials emanating only from Africa and for not going after more powerful, western states. However, being a treaty-based body, the ICC can only exercise its jurisdiction in the territory of states that are members, or where the nationals of member states commit crimes elsewhere.

Some 123 states are currently members. It should be noted that a number of African states requested ICC intervention. Exceptionally, the UN Security Council, voting unanimously, can refer a non-member state to the ICC, as occurred with Libya, although it has declined to refer other conflict-riven states like Syria. But, Afghanistan is a member, as is Palestine, which recently requested ICC intervention. Geographical expansion will be the court’s defining challenge. In the absence of domestic action for serious crimes, the court should act on its mandate, irrespective of the location.

Second, on the topic of co-operation, the reality is that the ICC is an independent judicial body that operates in the face of realpolitik. It has been described as a legal fish swimming in a political sea. The court has no police force – it is entirely dependent on state co-operation to arrest and surrender suspects. As such, the ICC will only ever be as successful as the level of co-operation it receives.

This was a key factor in the decision to reject the Afghanistan investigation. Essentially, the judges considered that an investigation would not be viable, as state co-operation would not be forthcoming. The judges were of the view that an investigation would also be resource-intensive and would raise victims’ expectations with little hope of success.

This questionable and arguably flawed interpretation of the “interests of justice” was arrived at in the face of open hostility from the US administration, which included threats of sanctions against judges and staff. It fuels the perception that the ICC is a biased institution. It sends a message to powerful states that if you threaten a campaign of obstruction, the court will leave you alone.

Others say the court is simply being realistic in what it can achieve and must incrementally build its “soft power”. This view is understandable and pragmatic. However, it runs contrary to the ICC’s statutory goal: to end impunity for the most serious crimes, no matter who is responsible. “Difficulty” is not a criterion contained in the Rome Statute.

While co-operation is a key ingredient of the court’s work, it should not be a precondition to beginning an investigation, or to issuing arrest warrants where crimes have been committed. It should be recalled that the early work of the tribunal for the former Yugoslavia was slowed by non-co-operation, low-profile cases and cries of illegitimacy. In time, the tribunal eventually convicted senior political and military officials from all sides in the conflict.

Third, almost every case before the ICC has experienced varying levels of interference, bribery and threats against victims and witnesses, which has atrophied evidence at trial. While acquitted of war crimes charges, Jean-Pierre Bemba was nevertheless convicted of coaching and bribing witnesses in concert with members of his legal team. This important conviction sends a message that interference will not be tolerated. This has been a big challenge for the court, but one that it is tackling.

The international community, particularly the governing body of the court, the Assembly of States Parties, which holds its annual meeting this week in The Hague, needs to meet these challenges head-on. Left unaddressed, the court will not be able to truly fulfil its mandate: to deliver justice and reparations for the victims of the most serious crimes. ICC member states need to decide if they really want the court to work. If they do, it needs to be properly resourced and politically supported, so the court can feel confident enough to proceed with difficult investigations like those in Afghanistan. If not now, when? The court was made to do the hard cases, not easy ones.

• Paul Bradfield teaches at University of Limerick School of Law and was a lawyer in the Office of the Prosecutor at the International Criminal Court from 2013 to 2018. This article first appeared in The Irish Times.