The ICC celebrates its 20th anniversary without having acquired universal recognition

On the eve of the 20th anniversary of the ICC, on June 30, the judges issued three arrest warrants against Russian and Georgian officials, at the request of the prosecutor. In the photos indexed to these arrest warrants, Michael Mindzaev, Minister of the Interior of the self-proclaimed Republic of South Ossetia, sports two stars hung on the epaulets of his uniform. David Sanakoev, politician of this separatist province disputed by Moscow in Georgia, appears there in a classic suit and tie. And Gamlet Guchmazov, the police officer, shows a sinister face on broad shoulders.

The three men, Russians and Georgians, form a classic trilogy of international trials: the planner, the principal and the performer. But these arrest warrants above all mark a turning point for the International Criminal Court. For the first time in twenty years, the targets of the prosecutor’s office are not Africans.

Not yet universal

Created by a treaty adopted in July 1998, this Court has always dreamed of being universal. To the great surprise of the NGOs, because no one thought that everything would go so quickly, the ICC was able to open its doors on 1^er July 2002, four years after the great diplomatic conference which validated his birth certificate in Rome. Today, 123 States have joined. But it only has two of the five permanent members of the United Nations Security Council in its ranks: France and the United Kingdom. China stands at a distance. The United States has always tried to impose an à la carte policy on it to better escape it while reaping the benefits of possible legal action against its enemies, and Russia hopes to undermine it from within. In April, following the investigation opened by the prosecutor Karim Khan at the beginning of March on the war crimes committed in Ukraine, Moscow would have tried to infiltrate one of its agents there.

Investigations opened in 16 countries

If it is still not universal, the Court can today boast of having opened investigations on four continents: Africa, Asia, Europe, and Latin America. A choice imposed in part by the numerous criticisms leveled against a criminal policy deemed opportunistic. The Court’s first prosecutor, Luis Moreno Ocampo (2003-2012), believed he could conduct easy investigations in Africa, without the heavyweights of geopolitics opposing them, or even sometimes with their approval. But after having drawn the wrath of many African Heads of State, worried about seeing this Court become the instrument of policies of ” diet change “, his second prosecutor, the Gambian Fatou Bensouda (2012-2021), will rectify the situation.

Today, the prosecutor’s office has opened investigations in sixteen countries. Apart from those conducted in Africa, his investigations relate to the war in Ukraine, the flash conflict of the summer of 2008 between Russia and Georgia, some of the crimes committed by the Burmese army against the Muslim Rohingya minority, the the Philippines’ bloody war on drugs, crimes committed by the Taliban and the Islamic State organization in Afghanistan, and alleged crimes in Venezuela.

Finally, the final investigation, the most sensitive, relates to the crimes committed in the occupied Palestinian territories and in Gaza. But if the Court claims to investigate in many countries, it is still not universal enough to be able to grasp the crimes committed in Syria or Yemen. Neither of the two States has ratified its treaty, it is therefore not competent to judge crimes committed on their territories.

The United States escapes the Court

Although it has extended its action, the ICC is still perceived as the instrument of two-speed justice. Admittedly, if they were opened, the files targeting Western countries were – at least partially – closed. Thus, the former prosecutor, Fatou Bensouda, had obtained the green light from the judges in 2020 to conduct investigations into the allegations of torture committed by the American army in Afghanistan and by the CIA in its secret prisons, installed in particular in Poland. , Lithuania and Romania. But the case earned the prosecutor the wrath of the Trump administration, which imposed sanctions – usually reserved for terrorists – against the Gambian magistrate.

One of the first gestures of his successor, Karim Khan, will be to ” de-prioritize this part of the Afghanistan case to focus on the crimes committed by the Taliban and the Islamic State. Fatou Bensouda had reopened, to finally close it, another sensitive chapter in the history of the Court: that of torture allegedly committed by British soldiers in Iraq. ” Threatens by the Court, London has indeed set up a judicial inquiry to deal with numerous complaints filed by NGOs, on behalf of Iraqi victims. As the Court only intervenes as a last resort, the prosecutor had left the hand to London, which concluded with many dismissals.

The Ukrainian turn

With the war in Ukraine, the International Criminal Court lives a new turning point in its history. But its leniency on files targeting Westerners today gives Moscow weapons. During a meeting in New York on justice in Ukraine, on April 27, while the prosecutor Karim Khan invited Russia to cooperate in his investigation, which also concerns the abuses of the Ukrainian army, the Russian representative sent a salvo to London and Washington. “ Suddenly they started to support the Court. Such an attitude makes justice a farce “and the ICC” a political tool he would say.

To speed up the investigation into Ukraine, opened shortly after the start of the war, more than 40 states seized the prosecutor, breaking a taboo for the second time. For a long time, diplomats refrained from initiating proceedings directly targeting one of their peers, preferring to do so in a more roundabout way: by trying to whisper in the prosecutors’ ears and by cooperating with the Court only at will. of their national interests. In Ukraine, they provided unprecedented support.

This taboo had already been broken in September 2018, when several Latin American states, backed by Canada, seized the prosecutor of alleged crimes in Maduro’s Venezuela. In November 2021, Karim Khan opened an investigation and managed the feat of not arousing the wrath of power. Caracas has chosen to use the tools at its disposal and the rules of the Court, written by diplomats – and not by lawyers – in 1998, offer some ways out. Venezuela disputes the investigation, but does so before the ICC judges, claiming to be able to conduct the trials before its own courts. The ICC only intervenes as a last resort, when a state lacks the political will and the means to prosecute. Venezuela is not the first to challenge the Court’s investigations on the basis of this principle of ” complementarity », before him Kenya, Libya, Sudan, etc.

Globalization of the fight against impunity

It is on the basis of this principle of ” complementarity that many States hope to remain shielded from the Court. And this is perhaps its most brilliant record in the fight against impunity. Its very existence has prompted capitals to amend their penal codes, even to establish special courts on their soil, to try the alleged perpetrators of mass crimes. Thus, despite the very mixed record of five convictions in twenty years (see box), “ the ICC has had a significant impact on global justice “says Reed Brody.

” TO through its Rome statute which has been transposed into numerous national laws, says the hunter of dictators, as well as through the pressure it exerted on certain States such as Colombia “, required to initiate proceedings against the actors of a 50-year war, at the risk if not of finding its nationals before the ICC. Supporters of the institution still consider it today as the central element in the fight against impunity. She sees herself as one of the permanent pillars of the international legal system “.