ICC Effectiveness Depends on Member State Cooperation Commentary
ICC Effectiveness Depends on Member State Cooperation
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JURIST Guest Columnist Eric Leonard, the Henkel Family Chair in International Affairs Political Science at Shenandoah University, says that for the International Criminal Court to become a truly effective institution of humanitarian law, member states must consistently adhere to and enforce its mandates…

The recent decision by a Kenyan court to issue an arrest warrant for Sudanese President Omar al-Bashir places the effectiveness of the International Criminal Court (ICC) in the spotlight. One must remember that this decision emerged from a failure by the Kenyan government, a member state of the ICC, to arrest President al-Bashir during a visit to their country in August 2010. According to Article 86 of the Rome Statute, “States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.” It is reasonable to state that this would entail the execution of an arrest warrant if an accused perpetrator were found on a member state’s territory, yet Kenya did not execute the previous arrest warrant and even defended the failure to execute by claiming that their actions (or inactions) were in the interests of regional peace and stability. It should be noted that al-Bashir has also visited member states Chad and Malawi without repercussions. This type of blatant breach of treaty obligation places the notion of ICC effectiveness in question, but it also provides a case for discussing the possible political effectiveness of global governance institutions more broadly and the role that the nation-state plays in this process.

At issue is the effectiveness of the ICC to fulfill its mandate. The concern of many ICC advocates is that any and all intergovernmental institutions (IGOs) exist within an anarchical world; this concept means a lack of centralized government, not chaos. The result is that IGOs are only as strong as their member states make them and the ICC is no exception. The Court may have a semblance of independence when it comes to its decision-making capacity, but this does not translate into independence in terms of its enforcement capability. The Kenyan government’s actions are but one example of this broader problem. Yes, the ICC has the capacity to issue arrest warrants for those individuals accused of violating the international norms of humanitarian law, but in order to act upon those warrants the Court needs state cooperation. The anarchical nature of the international system requires such cooperation. Thus, the ICC, in many ways, is only as effective as the member states make it.

So where does this leave us with regards to the Kenya situation and ICC effectiveness? The Kenyan high court’s decision to issue an arrest warrant is a clear sign that the intersubjectively held norms bound up in the ICC are not simply rhetoric, but the basis for action. If upheld — and the arrest warrant is currently under appeal in Kenya — this action shows the willingness of member states to not only sign and ratify the Rome Statute (which currently has 120 ratifying members), but the willingness to promote the principles of the statute through action. When considering the future of international criminal justice, this state cooperation is essential to ending impunity. The international criminal justice optimists may want to discuss the independent power of international institutions like the ICC or any of the other international tribunals, but the reality remains that in an anarchical world, state cooperation and enforcement are essential.

Even those advocating for the formation of the Court realized this empirical fact. During the formation process, the Like-Minded Group of states (mainly western European nation-states) and the NGO Coalition for the International Criminal Court both pushed for a statute that specifically mandated state cooperation. Many casual observers of international politics were confused by such a request, believing that ratification of any international treaty translates into state cooperation. However, quite often nation-states ratify treaties only to find loopholes in the language of the document or other means by which to disregard its principle meaning. The Rome Statute attempted to overcome that predicament by explicitly stipulating the responsibilities of member states. Article 86 is but one example of state responsibility; the entire document is ripe with this type of language.

Kenya has learned from its initial error in which they failed to fulfill these responsibilities and has now taken a significant step to rectify this in future situations. The issuance of an arrest warrant for President Bashir is a quintessential example of state responsibility that should hearten advocates of the ICC and its desired mandate. It also reifies the state-based nature of our international system and the difficulties that arise from this type of system. The end to impunity and the upholding of humanitarian law resides not just in the independent ICC, but also in the states that have accepted its mandate.

The initial decision-making process of who to prosecute may exist, at least in some form, as independent from the state-based system, but its ultimate execution remains dependent on the community of states. Thus, if advocates of the ICC ever wish to see Joseph Kony, Omar al-Bashir, or any of the other at-large accused individuals arrested and standing trial in The Hague, the member states must all start acting like Kenya. This will entail action that sends not only the accused of your own state to The Hague (currently six Kenyan citizens are standing trial at the ICC), but also the arrest and extradition of those accused from neighboring states. Only when other states begin to behave like Kenya can the Court become a truly effective institution of humanitarian law. States must be part of the global governance process and this situation has verified that reality.

Eric Leonard is the Henkel Family Chair in International Affairs at Shenandoah University. His primary areas of expertise are global politics, foreign policy, human rights, humanitarian law and political philosophy. He has published several articles and is the author of The Onset of Global Governance: International Relations Theory and the International Criminal Court.

Suggested citation: Eric Leonard, ICC Effectiveness Depends on Member State Cooperation, JURIST – Hotline, Jan. 3, 2012, http://jurist.org/hotline/2012/01/eric-leonard-icc-effectiveness.php.

This article was prepared for publication by Stephen Krug, an assistant editor for JURIST’s professional commentary service. Please direct any questions or comments to him at professionalcommentary@jurist.org

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