The Rome Statute established the International Criminal Court (ICC) with an independent Prosecutor and a robust and comprehensive mandate to end impunity for the worst crimes. When dozens of states ratified the Rome Statute much more quickly than anticipated, hopes were high that the Court would make a significant contribution to ending impunity. But now, after a decade of operation, the Court finds itself facing criticism from all sides.
Those working to resolve conflicts complain the Court’s investigations and indictments of warlords—though legally valid—obstruct or undermine peace negotiations. For some, the Security Council’s demand that the Court investigate war crimes in Libya and Darfur, but not elsewhere, has politicized the pursuit of international justice; and this pursuit, many allege, is too heavily focused on Africa, the origin of all of those who have been indicted.
Moreover, after more than ten years, the Prosecutor has brought only 21 cases (involving 28 defendants); only one of these cases has definitively concluded (several are under appeal, and in several more the defendants are not in custody, so the trial cannot begin). And the hope that the Court’s foundation would spur national courts to punish war criminals (to avoid the ICC intervening), has proved illusory in most cases.
In the face of ongoing atrocities in so many countries, that continue to shock the conscience of humanity, it seems beyond doubt that the world needs an International Criminal Court. But can this “utopian” project succeed in an increasingly divided world, where politics, not law, still guides the great powers and the institutions they control?