Since it began operations in 2002, the International Criminal Court has secured just four convictions, fueling the perception that it has been largely ineffectual as a tribunal of last resort for the world’s worst criminals. Making matters worse, Gambia, Burundi and South Africa have announced their intention to leave the court, which some African leaders see as a vestige of colonialism because it has so far tried cases only from their continent.
At a time when President Bashar al-Assad of Syria and President Omar Hassan al-Bashir of Sudan are eluding accountability for a litany of war crimes, these defections have called into question the long-term viability of the court and the world’s commitment to the principles it was created to uphold. Instead of allowing it to wither, the international community should redouble efforts to strengthen the court’s mandate and its mission — no easy task given its complex history.
World leaders explored the possibility of establishing an international criminal court after War World I. But it became diplomatically feasible only when the Cold War ended and the United Nations saw the need to establish special tribunals to bring to justice the perpetrators of atrocities in the Balkans and Rwanda during the 1990s.
There were 120 votes in favor of the statute, seven against and 21 abstentions. Among the opponents, shamefully, was the United States, which feared irrationally that the court could become a vehicle for politicized and arbitrary prosecutions of Americans and Israelis. After much international and domestic criticism, President Bill Clinton signed the treaty shortly before leaving office, a largely symbolic step since there was little support in the Senate to ratify it.The court’s foundational document, adopted in 1998, is the Rome Statute, which decreed that there should be no statute of limitations for genocide and crimes against humanity. Its jurisdiction over atrocities committed in member states applies only when the local judicial system is unable or unwilling to bring people to justice or with the blessing of the United Nations Security Council.
President George W. Bush tried to undermine the court, lobbying allies to abandon it, and in 2002, Congress passed the deceptively named American Servicemembers Protection Act, which barred American cooperation with the court and authorized the use of force to rescue any American on trial before it. The Bush-era position has angered human rights champions, like Senator Patrick Leahy of Vermont, who has been among the court’s few defenders on Capitol Hill. “At a time when some governments are withdrawing from the I.C.C.,” he said, “we should set an example by joining the court and actively supporting its work.”
The next administration should make resolute support for the court one of its foreign policy priorities. The first step is to draw attention to the actual reasons African nations are defecting. The autocratic leaders of Gambia and Burundi fear not a resurgence of colonialism but being held accountable for their abuses. In South Africa, President Jacob Zuma is motivated by domestic and regional politics at a time when his integrity and leadership have rightly come under scrutiny. The International Criminal Court has focused much of its resources on Africa not out of racism, but at the request of victims’ groups and often governments that recognized they were not equipped to handle complex prosecutions.
A strong commitment by the next American president to the tribunal would strengthen it and encourage countries to stay in. Early during her tenure as secretary of state, Hillary Clinton expressed “great regret” at Washington’s failure to join the court. If she is elected, she will have the chance to try to turn that regret into action.