Although 111 countries have ratified the Rome Statute establishing the International Criminal Court, many have consistently failed to cooperate with the court’s operations or to effectively support its work.
This week, government representatives from around the world are meeting in Kampala, Uganda, for what will be the most important gathering about the Court since the 1998 adoption of the Rome Statute. Member states should take this opportunity to identify how they can better support the Court and its mission, culminating in a public commitment to ensure appropriate policy changes and funding.
For too long, public debate has focused almost entirely on decisions and actions of the ICC itself: the impact of the arrest warrant against President Bashir of Sudan on peace in Darfur; the scope of the charges in the ICC’s first trial, against a Congolese warlord accused of recruiting child soldiers; the fact that, until now, all active investigations have concerned crimes in Africa.
In contrast, the responsibilities of states have not received due attention.
To be sure, the Court matters. And it has some way to go in ironing out its internal operations. But on almost every major challenge the Court confronts, the role of states party to the Rome Statute is critical.
For example, unlike the courts in our own countries, the International Criminal Court lacks a police force to enforce its subpoenas, arrest warrants, and orders. The Court depends entirely upon member states’ law enforcement agencies to secure the arrest and detention of persons it has charged with crimes.
To date, states have proven unwilling to fulfill this responsibility consistently. As a result, the Court’s detention facility in The Netherlands holds only four of the thirteen persons for whom the Court has issued arrest warrants. One of the Court’s main purposes is to deter political and military leaders from ordering massive violence. If the risk of being arrested, tried, and punished remains so absurdly low, it will diminish the Court’s ability to deter such mass crimes.
In addition, the Court faces formidable challenges in reaching out to societies where the abuses it addresses take place, thousands of miles away from The Hague. Surveys have revealed that people in countries suffering mass violence have little knowledge of the Court and its role, unrealistically high expectations of its potential impact, and low levels of trust and goodwill toward its staff.
This disconnect could be remedied if member states allocated sufficient funds for public outreach. Continued failure to prioritize connecting with affected communities will prevent the Court from involving the public meaningfully in its operations. Ultimately, this weakens the institution’s legitimacy and limits its impact in the countries where its work matters most.
Although states have the principal responsibility to pursue perpetrators of mass violence, few have done so. The concept of “complementarity,” which underlies the Rome Statute, permits the Court to assert its jurisdiction only when national authorities are unable or unwilling to do so. Yet in practice, political will and judicial capacity are too often lacking among domestic actors.
To make matters worse, the Court’s major international donors—many of whom are members of its governing assembly of member states— have not aligned their funding patterns in a way that will bolster complementarity. As a result, even as donors spend millions on projects to promote economic development and the rule of law in countries where the Court is engaged, they fail to provide the basic prerequisites for successful war crimes prosecutions: skilled investigators, sound witness protection systems, and technology for managing sensitive information. As a result, the Court is being saddled with sole responsibility for ending impunity—a burden no single institution can possibly bear.
The gathering in Kampala offers International Criminal Court member states a chance to assume their proper place in the international system of accountability for atrocities. A good start would be to create a standing committee that will develop tools to enhance national-level prosecutions and improve donor cooperation. In addition, member states should pledge to increase funding for the Court’s outreach activities. Finally, the gathering can foster a more supportive diplomatic environment for the Court by having member states agree to raise concerns about individual state cooperation in bilateral discussions as well as at sessions of the United Nations Security Council, General Assembly, and Human Rights Council.