To renew the International Criminal Court, look to the regional rights institutions
The ICC can do better by learning from regional human rights institutions.
Entrance and main gate of the International Criminal Court building, October 2018. Credit: Ankorlight / iStock
This year marks twenty years since the International Criminal Court (ICC) began its work. As the ICC passes this milestone, two vital questions arise: Is it advancing its core purposes of preventing mass atrocity and ensuring that perpetrators are prosecuted when those crimes occur? And how could it improve?
According to our research, recently published in the Yale Journal of International Law and ICC Forum, the short answers to these questions are that the ICC is not doing well enough and that it could do better by learning from regional human rights institutions, especially the Inter-American Court of Human Rights, the Inter-American Commission on Human Rights, and the European Court of Human Rights.
Preventing slaughter and ensuring accountability are ambitious goals, to be sure: no international institution can prevent mass atrocity on its own, either across the board or in any specific case, nor can it prosecute more than a fraction of the many who commit crimes against humanity, war crimes, or genocide each year. International human rights institutions do not command police or military forces and cannot impose economic sanctions to pressure governments. Their influence depends on their capacity to change the incentives and beliefs of various international and local actors, usually only by small increments.
Not effective enough
Unfortunately, the ICC disappoints. Our work suggests that the ICC has had some success in preventing atrocities by deterring perpetrators from committing grave abuses, helping end wars, and contributing to more complex political dynamics. The magnitude of those effects has been modest, though. In a few cases, such as Uganda, the court may have prolonged wars, extending the timeframe for atrocity.
The ICC’s impact on legal accountability also has been positive, but small. It has achieved little on its own: in twenty years, it has tried just nine defendants for crimes against humanity, genocide, or war crimes and has acquitted four of them, a far higher proportion of acquittals than in previous international tribunals. (Six others are in ICC custody and on trial or awaiting trial.) Many other cases have collapsed, most due to witness intimidation or prosecutorial error. The ICC could contribute indirectly to legal accountability by stimulating and supporting prosecutions in national courts—but so far it has devoted little attention and few resources to doing so.
This lackluster record, coupled with internal management and operational problems, has led many observers to question the ICC's capacity to advance human rights. Like them, we are disappointed with the ICC's record and concerned about its future.
Learning from regional bodies
We see a brighter future for the ICC if it shifts its strategy and reallocates resources, learning from the regional human rights institutions’ success in reducing atrocity and promoting accountability. Our research found that prevention and accountability seldom result from the actions of international institutions alone but instead tend to emerge from political and legal processes and norms within states, sometimes catalyzed or supported by those international bodies.
We also found that, through decades of experimentation and practice, the regional commissions and courts have learned to play this complementary role with great skill. They have devised tactics that contribute to the complex political and legal dynamics that generate accountability and prevention. These tactics range from behind-the-scenes pressure on states and warring parties to highly visible site visits and reports, and from the creation of special investigative bodies to international litigation and broad reparations measures.
The regional bodies publicly warn potential perpetrators of legal consequences and coordinate with human rights supporters in civil society and international organizations. While they do confront culpable governments, regional commissions and courts have calibrated their actions to avoid needless antagonism, engaging with domestic political contexts and gradually accumulating power as governments implement their decisions. The success of regional institutions’ interventions has fostered support from citizens and elites, promoting a virtuous cycle that has enabled bolder engagement to halt abuses and advance accountability.
The ICC, by contrast, has succumbed to a lawyerly temptation to view its role as narrowly judicial and technical, detached from the complicated, often politicized processes on the ground. Its leaders and staff have focused on choosing cases and investigating, prosecuting, and judging them—and amassed a record of many failures and few successes. While ICC prosecutors and judges should improve their performance of these core judicial tasks, they—along with the ICC’s Assembly of States Parties, which oversees and guides the court—must also rethink the court’s overall strategy.
The methods developed by the regional bodies provide invaluable guidance. The ICC should devote less attention and fewer resources to directly investigating and prosecuting cases and more to catalyzing and supporting actions within states—by investigators, prosecutors, judges, executive-branch actors, civil society, and even potential perpetrators—that yield criminal accountability for perpetrators and reduce the chances that mass atrocity will occur.
The ICC has started to make such efforts, collaborating with national actors and sometimes challenging or competing with them—for example, by signaling that it will step in to prosecute if national authorities fail to do so. (We found that it has been especially strategic in Colombia, where it has engaged with key government and civil society actors for nearly two decades without bringing cases against individual defendants.) The problem is that the ICC’s judges, chief prosecutor, staff, and state parties see such efforts as secondary to prosecution. Reversing that priority, as we recommend, would require a significant reallocation of resources, including personnel, funds, and management focus.
The time for change is now
This is an opportune time for change at the ICC. Its new chief prosecutor, Karim Khan, has begun to make his mark since taking office in 2021. The Assembly of States Parties has signaled its seriousness about reform with a landmark investigation of the court’s problems by international criminal justice luminaries, culminating in late 2020 with the highly critical Independent Experts Report. The most recent positive signs are Khan’s emphasis on promoting national-level prosecutions (a.k.a. “positive complementarity”) in his 2022 Annual Report and plan to issue a Policy Paper on Complementarity in 2023.
Our proposal—that the ICC operate more strategically, learning from regional institutions, and that it de-emphasize individual investigations and prosecutions—is firmly grounded in the records of the ICC and regional institutions. Adopting it would enhance the ICC’s effectiveness. Furthermore, it is truer to the vision of the states and civil society organizations that founded the ICC. The ICC was conceived as a complement to national justice systems, not as the primary source of accountability, prevention, and compensation for mass atrocities around the globe. Its current overemphasis on investigating, trying, and judging, coupled with underinvestment in less visible methods of influencing and supporting national actors, reflects a legalism that scholars have documented and criticized in many international tribunals.
The ICC must reconceive its place in the multilevel legal and political realm as a player that exercises influence through a variety of political and legal channels and whose impact depends on its interaction with others.
Jamie O’Connell is Lecturer in Residence at Stanford Law School and a research affiliate at Stanford’s Center on Democracy, Development and the Rule of Law.
James L. Cavallaro is a visiting professor at Columbia Law School, and UCLA Law, executive director of the University Network for Human Rights, and former commissioner (2014–2017) and president (2016–2017) of the Inter-American Commission on Human Rights. On Twitter: @jimcavallaro