When Treaties Work | The Rome Statute for the International Criminal Court

Can you protect the independence of the International Criminal Court without escalating tensions with the United States? Welcome to Global Dispatches, a podcast for the foreign policy and global development communities and anyone who wants a deeper understanding of what is driving events in the world today. Some of your host Mark Leon Goldberg, I am a veteran international affairs journalist and the editor of UN Dispatch. Enjoy the show. In 1998, 120 countries adopted the Rome Statute, creating the International Criminal Court. Four years later, the treaty entered into force and the ICC was officially established as a permanent international court to prosecute individuals accused of war crimes and crimes against humanity. Now if you survey the world today, it's fair to say that the ICC has clearly not deterred all war crimes or crimes against humanity, but the court and its founding treaty have nonetheless shaped international relations in significant ways. My guest today, Mark Kirsten, is an assistant professor of criminology and criminal justice at the University of the Fraser Valley in British Columbia and senior consultant of the Wayamo Foundation. We kick off with a brief history of the ICC before having a longer conversation about how the ICC has impacted not only case law around what constitutes war crimes and crimes against humanity, but also state behavior. When we spoke, Mark Kirsten had just returned from a key annual meeting of the ICC's main governing body, the Assembly of State Parties, which Mark Kirsten argues offers a glimpse into some future challenges the ICC faces in fulfilling its mandate. This includes a threat of sanctions by the United States against not just some court officials, but against the entire court itself. Today's episode is produced in partnership with the Lex International Fund, a philanthropic initiative dedicated to strengthening international law to solve global challenges. As part of our ongoing series highlighting the real world impact of treaties on state behavior, we call when treaties work. Today's episode and all episodes in this series can be found on globaldespatches.org. Now here is my conversation with Mark Kirsten of the University of the Fraser Valley and the Wayamo Foundation. Well, Mark, thanks so much for speaking with me. To kick off this conversation, I would be curious to have you take listeners back to the mid to late 1990s and explain the reasoning behind the advent of the International Criminal Court and the Rome Statute, the treaty upon which the court is based. So you have in the 1990s this kind of liberal cosmopolitan political and legal euphoria. All of a sudden projects that were impossible because of the Cold War become possible. One of those projects, which more or less was stalled after the Nuremberg trials, is international criminal justice. And so two tribunals are set up in the early to mid 1990s, both in relation to atrocities that genocide committed in Rwanda in 1994 and the other the atrocities that are committed in the context of the collapse of the former Yugoslavia. Obviously you have the ad hoc tribunal for the former Yugoslavia and then an ad hoc tribunal dealing with the genocide in Rwanda. And Mark, because I am a bit older than you, I should note that I was an intern at the ICTY, the International Criminal Tribunal for the former Yugoslavia in the early 2000s on the Milosevic trial. So I can get into the history a little bit. Okay, so you know the sense, so I wasn't there, but you know, from talking to people during that time, prior to 9/11, there's this excitement, there's this belief, there's this, again, this liberal cosmopolitan kind of conviction that not only international criminal justice, but things like the responsibility to protect, the landmines convention, liberal peace-building models, et cetera, can kind of finally come to fruition. And at the same time, while you have these ad hoc tribunals and a couple of other courts that are being set up to deal with atrocities that are also supposed to be impermanent, there's this view that this is the perfect time to try to get states to agree to a permanent international court capable of addressing, investigating and prosecuting international crimes at the time, war crimes, crimes against humanity in genocide, and more recently, at least to some extent, potentially the crime of aggression. And so states gathered for a long time, actually, through the International Law Commission, discussing what a statue would look like. And finally, then, high-level state representatives gather in 1998 in Rome, and ultimately in a pretty remarkable way, and in the sense that I don't think it would happen today, but states agree to what we now call the Rome Statute of the International Criminal Court, which breathes life into international criminal law as a permanent feature of international relations and international law, and which, by the 60th ratification of the Rome Statute creates the permanent ICC, which happens in 2002. Yeah, so it was actually, and in 2003, when I was in the Hague at the ICTY, as the ICC across town was getting staffed up. And as you say, it really was this kind of moment in history, a real optimistic moment for those who believed in progress against crimes against humanity and war crimes who believed that there is an opportunity to end the impunity around which these crimes had. So routinely, been committed, and really building off the examples of the Rwanda and the Yugoslav or crimes tribunal. So the ICC was created. The Rome Statute entered into force. Can you just explain to listeners who are less familiar? What does the ICC do, and how does it do it? In a nutshell, the ICC is mandated to investigate and prosecute four core international crimes. War crimes crimes against humanity, genocide, and the crime of aggression, the crime of aggression, being the commission of illegal warfare, the unlawful invasion of one country or one state. By another, there are some real distinct challenges with the ability of the ICC to investigate and prosecute the crime of aggression, but the others are more or less unproblematic under the Rome Statute, and the ICC has investigated and prosecuted war crimes on multiple occasions, crimes against humanity, and multiple occasions, and has one warrant that we know of at least in relation to genocide pertaining to former Sudanese presidents Omar Alba, she over alleged genocidal acts committed in Darfur. The ICC can investigate any state that has joined the ICC, and currently there are 125 member states of the ICC. I was just at the assembly of states parties. I know we'll talk about that where Ukraine, for the first time, attended as a member state, it is the latest member state. At the same time, other states are signaling that they want to leave the Rome Statute system. Then therefore leave the ICC. Ukraine has signaled that it wants to leave over basically trouble that it got into, that it doesn't think it should have gotten into over hosting Israeli Prime Minister Benjamin Netanyahu in Budapest. Benjamin Netanyahu has a warrant against him by the ICC on allegations of war crimes against humanity, and then force the hell countries which also have signaled they want to leave. But again, in principle, the ICC has jurisdiction over any state that has joined the court. It has jurisdiction over any citizen of a state that has joined the ICC. So for example, I'm sitting here in Canada. If a Canadian went to, let's say, Iraq and committed war crimes, even though Iraq is not a member state of the ICC, Canada is, and therefore a Canadian that commits an international crime on a territory of another state can still fall under the jurisdiction of the ICC. And this ends up mattering, for example, because Russia is not a member state of the ICC, but Ukraine is. And so the ICC has jurisdiction on the territory of Ukraine, but it also has jurisdiction over any acts that, for example, Ukrainians might commit abroad. So this ends up actually mattering this, what we call personal jurisdiction. And finally, in very rare instances, really only two cases, the ICC can also exercise jurisdiction where the United Nations Security Council refers a situation to the court. And in that instance, it doesn't matter whether that situation is in a member state of the ICC or not. So for example, Darfur was referred to the ICC in 2005, despite Sudan not being a member state of the ICC, and Libya was referred to the ICC in 2011. So I'm glad you got into these jurisdictional questions because there is, I think, a lot of confusion around them in the general international affairs public, not like ICC nerds like you and I, though, mark that I am glad that you got into that. So we are now at, you know, it's been 20 something years since the ICC opened its doors. What would you say are some of the top accomplishments of the court in terms of like bringing cases to trial? Yeah, so it's obviously been a mixed back, but the ICC has successfully prosecuted a number of really important cases. I would say that no case is kind of free of any controversy because of the magnitude of the crimes. And we're talking about international crimes. And as you know, Mark, and I'm sure many listeners will know, these crimes end up being quite politicized. So while you prosecute one thing, you might be leaving out someone else or something else or while you're prosecuting a particular type of war crime, you may not actually be dealing with the entities or states that kind of fuel that war crime or allow that war crime to happen. So there are no really uncontroversial cases, but there's really important cases. So in the Lubanga case, for example, one of the ICC's first, it prosecuted the use of child soldiers in a really important verdict and contribution to case law. And this was in the context of the fighting in DRC. That's right. The Democratic Republic of Congo, exactly. In the context of Mali, it's successfully prosecuted an individual who was part of a terrorist organization for the war crime of destroying cultural heritage, specifically in Timbuktu. And that also kind of elevated the importance of how cultural artifacts and cultural places can be destroyed as a war crime. It's contributed through a number of different cases to helping to establish new standards in how sexual and gender-based violence is prosecuted. Just recently, it convicted for the first time someone from Sudan, Ali Kusheb, on I think it's 27 counts of war crimes and crimes against humanity. And so it's contributed quite significantly in those instances to not just producing the case law, but to the victims of those particular perpetrators. It's contributed quite significantly, I think, or that's my sense in engaging with people who work at the ICC, but also who work in these states or with diasporas from these communities. And I think that really matters. Is it enough? No. If we think about what's happened in Darfur since 2002 is one prosecution enough, of course not. But at the same time, I think there are significant successes. And there's potentially more to come. Perhaps the most notable case right now is the case of the former president of the Philippines, Rodrigo Duterte, who is going to trial at the International Criminal Court for crimes against humanity related to his so-called drug war in relation specifically to what are likely to be hundreds, if not thousands, of extra-dissue killings. So killings of suspected drug users and drug dealers. And he was very clear, as people remember, was very clear that he supported and endorsed and actually participated directly in himself at times. So I'm fascinated by your rundown of some examples in which the ICC has advanced, like, case law when it comes to war crimes and crimes against humanity. I'm curious, though, to learn if, in more of a political sense, how or if the Rome statute and the ICC have in a similar way nudged the world towards less war crimes and less crimes against humanity and less genocide, you know to play the devil's advocate, and it's not like a difficult argument to make. You survey the world today from Gaza to Ukraine, Sudan, and elsewhere, and there are still rampant crimes against humanity that have been ongoing and have gone unpunished. Yeah. So I think we've talked about this before. I have always been something of a deterrent skeptic in the sense that I think there are lots of reasons to support the international criminal court and its work primarily around its limited but real capacity to deliver justice and to create a forum where victims and survivors and affected communities can channel efforts to have a world body and international court and an international organization acknowledge their suffering as a war crime, as a crime against humanity, as an act of genocide, etc. But you're absolutely right. It would be foolish for somebody to say, from 1998 till now, the ICC has had a significant deterrence impact on the commission of the crimes which it has jurisdiction over because of precisely the context that you named. And I don't know for sure, but it certainly doesn't feel with the kind of eyeball test, like there are less international crimes being committed today than there were a couple of years ago, let alone 1998. Now at the same time, I do think there are at least some interesting examples where you could argue that the international criminal court's interventions into particular situations has had some deterrence impact. How you prove that is a very difficult topic because it's difficult to prove that something didn't happen because the ICC intervened because I'd prove something that didn't happen. So, but at the same time, I think one that sticks out to me is the context in Kenya. So in 2007 and 2008, there was post-election violence in Kenya, a series of mass displacements, murders, sexual violence, etc. And the international criminal court intervened and ultimately issued summonses which are slightly different than arrest warrants, but it basically targeted a number of individuals on both sides of this post-election violence that had been so deadly in Kenya. And the two most famous people that the ICC sought to prosecute were William Ruto and Urukanyata. Now, 2013 rolls around and Urukanyata and William Ruto, who are prior to this on opposing sides and kind of lifetime political enemies, come together and form an alliance, the so-called Jubilee Alliance and run on the same ticket in Kenya's 2013 political presidential elections and they win. And it's very clear that the only reason they run together in this alliance is in order to thwart the ICC's investigation and potential prosecution against both of them. So 2013, that presidential election doesn't have political violence like we saw in 2007 and 2008. And the subsequent election in 2018, I believe it was, also doesn't have this severe political violence in part because the two individuals who otherwise oppose each other are in this political alliance, which has since fallen apart. And so we'll see what happens. But ICC cases ultimately fall apart in part because they were poorly constructed at the court, but also in part because there was an organized effort to intimidate, if not murder, some of the key witnesses in the cases against Ruto and Kenya. So the cases fall apart. So it's not a good story for justice. But it has like a political relevance that maybe is even though like justice might have not been served, it did as you suggest, you know, induce the alleged parties to work together and not fight each other in that overall reduced levels of political violence. That's interesting. I'm wondering, you know, beyond this question of deterrence though, could you, you know, identify ways in which the Rome statute has influenced state behavior one way or another? I think you're onto something really important here, which is we tend to, and I say we, I mean, people who follow the ICC and in fact are in the kind of international law and international criminal justice worlds tend to conflate the Rome statute with the international criminal court. And so on some extent that makes sense, but the statute kind of has a life of its own that's also separate from the court as an institution. And I can give a couple of examples of that. So for one, for example, in 2002, there were riots and horrific violence in India, in Gujarat, in Western India, and both lawmakers, some members of parliament and civil society really tried to address the atrocities that were committed by Indian state agents and the police. And what they used, even though India's not a member state and is not going to become a member state of the international criminal court, what they used as their kind of standard bearer to shape new legislation in India in the subsequent years was the Rome statute. It became the way in which attempts to address impunity were articulated. That's a really important story. In the Democratic Republic of Congo, which is a member state of the ICC, you may remember the horrific atrocities around 2013 and 2016 in Kavumu where very young children were raped, some as young as 18 months. And there was an effort to hold militia men, but also members of parliament who had been responsible to account. And one of the members of parliament, Frederick Batumike, basically said, "I have immunity as a member of parliament." And what local actors and the local courts did in the Democratic Republic of Congo is say, "Actually, you don't." And the reason why you don't have immunity from prosecution for these atrocities is because the Rome statute strips you of immunity for crimes against humanity. And ultimately, he was prosecuted and convicted as worked 11 Congolese militiamen. Then you have other things like the hybrid courts that are established or people are trying to establish in the Central African Republic where there is one, in Kosovo where there is one, in Sosudán where there's not yet one, etc. And the Rome statute really is seen as, in many respects, the kind of gold standard. And then even where there's been zero accountability from an international court or the domestic level in the country, a country like Syria, what you have is dozens at this point of universal jurisdiction cases. And universal jurisdiction allows states to investigate and prosecute international crimes, even when the crimes were committed beyond its borders against citizens of another state and by citizens of another state. And the only justice that's been produced for Syria is under this principle of universal jurisdiction. And those cases all rely, as far as I know, every single one relies on the Rome statute being domesticated into the country, whether it's France, Germany, Sweden, whatever being domesticated into the domestic law of those countries and therefore allowing them to investigate and prosecute these crimes. I mean, that's fascinating to me because, you know, oftentimes when we focus on treaties in general and really the ICC in particular, we look at the fact that the United States, that Russia, that China, that India, all these key countries exist outside of it have not ratified the Rome statute yet despite that, you do still see it having a real discernible impact. Yeah, absolutely. I mean, then it has an impact also on these states that are not member states. You know, Vladimir Putin's team has been clear that he worries or his team at least worries about his travel plans because he doesn't want to be arrested because he's also faces an arrest warrant over war crimes and crimes against humanity committed in Ukraine. A couple of weeks ago when Benjamin Netanyahu is traveling to the United States to the White House, his flight path was published and it was this weird squiggly line that went over parts of Europe but really avoided other parts of Europe and it was clear that his plane was had taken this route so that it didn't cross over the airspace of countries that Israel thought might force his plane down and force him to be surrendered to the International Criminal Court. And just I think yesterday Reuters had a story that the Trump administration is threatening additional sanctions against the International Criminal Court, perhaps as an institution as a whole as opposed to just its key staff, threatening these additional sanctions. If member states of the ICC don't amend the Rome statute to effectively create carve-outs that would protect Trump and other people like Pete Hegsett, the Secretary of War from prosecution after 2029. So after this administration's time is up and there's two ways to read this. The one way to read this is the kind of cynical take which is it's so politicized and of course it is politicized but this is so bad that shows you know the weakness or the fragility of the International Criminal Justice system. That is definitely one way to read this. But the other way to read this which I think is just as valid if not more valid is to say look this is an indication that the most powerful states in the world have to care about what the International Criminal Court does. And aside from only investigating and prosecuting specific cases of war crimes crimes against humanity and genocide, one of the goals I think of the International Criminal Court should be to make people who might otherwise be perpetrating these kinds of crimes uncomfortable and make them think twice. And I think there's evidence at the very least in those instances that I just mentioned that that's what's happening. So we're speaking on December 11th. You are just back last week from the Assembly of State Parties to the Rome Statute. This is a governing body of the ICC. And I'm curious to learn from you how delegates to the ICC today view its impact and its potential particularly as you've seen the ICC as an institution being squeezed on the one hand by the Trump administration which has sanctioned various ICC officials and is threatening even deeper sanctions against them, including potentially secondary sanctions on their financing. On the one hand in Russia, of course, is also mounting campaigns against the ICC. So as delegates gathered in the Hague last week, what was the mood the vibe considering all this? Yeah, it was an equal measure, frustrating, troubling, inspiring, and resilient. Yeah, break that down for me. And if it's not to uncouth, I wrote a breakdown about my time there in the atmosphere, my blog just to send a conflict, a lengthier article on what was happening there. Plug away, please. Thanks, Mark. So on the one hand, there was a real effort by both the senior most staff of the ICC and states that were at the assembly of states parties to put on a brave face and say, we are resilient. These are troubling times, but we are undeterred. We are going to continue. We're going to fight. And you saw that also among civil society groups, right? Civil society groups, including from Palestine, which are themselves under sanction, were very clear, right? We're not going to stop. We're going to continue. We are undeterred. At the same time, there was almost a hedging of bets, kind of atmosphere, where states would talk about threats or the existence of a crisis or intimidation tactics against the ICC. And some of them sometimes would mention the word sanctions, but none. As far as I know none, and I might be wrong, but I didn't hear any statement from a state that actually acknowledged that the sanctions come from Washington. So there was a willingness to kind of articulate that there was a problem, but this problem basically could have come from anywhere or from outer space as if the sanctions were this thing that had arrived, as opposed to how it arrived from this particularly anti-ICC and to large extent anti-international law government. And so that was a bit odd, and there were statements, including one that was issued by consensus that articulated their worries about protecting the courts and from intimidation and from threats, and then also said, "But we have to keep this space to continue dialogue with non-member states about their concerns about the ICC." They're just like afraid to poke the bear, kind of thing. Exactly. And I think we should recognize that you and I are talking right now about the ICC, but for state delegates, they're not. That's not the only thing they'll do. If you're a Canadian or a European, you're also in the middle of negotiations over peace in Ukraine and peace in Israel and Palestine, but you're also in negotiations over the potential reductions of tariffs, right? So for them, for the diplomats, all of this is kind of, I'm sure swirling around either their minds or they're getting instructions, it seemed very clear instructions not to poke the bear, not to indicate that the United States was behind this, and I certainly never heard from any state, the name Donald Trump. So I think people found that frustrating, right? That there was this hesitancy to call a spade a spade, but we'll see. Diplomats made interesting arguments about why they were doing that, because they still want to keep open to space for dialogue and avoid another round of sanctions. The scariest thing for them being sanctions against the court as an institution. Right now, there are sanctions against nine individual staff members whose lives have been turned upside down. Absolutely. They can't use credit cards. They can't book hotels. They can't use Expedia. They can't do, there's so many things they can't do. If they travel home, they have to make sure that their flights don't go anywhere near American airspace, which for some of them, if you're Canadian, isn't the easiest thing to do. So it's really challenging for them, but the biggest challenge for the court and for its supporters and for states would be if the court as a whole, as opposed to individuals within it, were sanctioned. That would really throw a wrench in the ability, for example, of the court to pay its staff, to use banking systems, financial systems, etc. So I think states want to keep open this space for dialogue to ensure that that doesn't happen by not, as you put it, I think, really well poking the bear. So you had very, again, these mixed feelings and then real special moments. So I mentioned earlier in our conversation that Ukraine was there for the first time as a member state of the ICC. And I was in the assembly when they were welcomed and it was a remarkable, beautiful standing ovation basically and rousing round of applause to welcome Ukraine. So there were definitely special moments like that. And I think the resilience of certain civil society actors like Palestinian NGOs that have been documenting human rights violations and international crimes and Gaza and the West Bank was also really inspiring for people to see because those were sanctioned people standing up and saying, you know what, we're not going anywhere. Gaza won't be the cemetery of international law. We're going to keep trying. So a real mixed bag and it remains to be seen, you know, what happens in the future? Are we in the eye of the storm? Is this like a certain moment of common? It's going to get rougher again? Or are there actually off ramps that are available? To me, that's the biggest question. Is that possible? So can you continue your investigations into Palestine and potentially continue issuing the restaurants in Palestine whilst also not poking the bear? Can you protect the independence of the court whilst deescalating somehow? And that's a big challenge for states. Yeah. I mean, as you describe it, I mean, it's sounds like there's almost like this kind of sort of damnically is hanging above the court in the form of potential institution-wide sanctions that would be levied against it by the United States. And I take it that that outstanding question will sort of remain until those sanctions are either imposed or until the end of the Trump administration. So how else can the ICC continue to try to live up to the Rome statute in that varies for complex and difficult future, near term future that it faces? It can only do so if its member states want it to do so. And so there is a law in Europe on the European Union books. And in fact, for the exact same reason, a Canadian law exists. Very briefly, the background to this law was the US sanctions against Cuba, which were seen by the rest of the Western world. I think this was in the 1990s as being politically motivated as opposed to legally motivated. A bunch of Cubans were put under sanctions because Cuba was communist, basically, by the United States. And Europe and Canada did not want to comply with those US sanctions. And so created laws in Canada as part of the Foreign Exitorial Measures Act and in the European Union, it's called the Blocking Statute, which effectively allow the European Union and Canada to invoke this law, which then protects all of their institutions, say, companies, businesses, financial institutions, banks, et cetera, airliners, et cetera, it protects them from being in trouble or lack of better word if they engage with otherwise sanctioned people. So if states want the ICC to continue to function and undeterred in an independent fashion, the European Union and Canada need to invoke these statutes in order to protect the staff and perhaps the entire entity of the International Criminal Court. Because if not, I don't think we'll see the ICC disappear, but it will limp. It will be a shadow of what it kind of has shown some degree of promise it could be. It will still prosecute the cases before it, but it will be this court that is kind of forced to pull punches isn't capable of fully financing investigations into new situations and whose staff are probably going to be extremely demoralized because they aren't able to do the important work that they otherwise would do. So there is a pathway to protecting the court's independence through concrete measures like the Blocking Statute and part of the Foreign Exitorial Measures Act. Other states invoke it remains to be seen. Which is more of a diplomatic issue is the extent to which these states, Canada, European states, but also African states, Latin American states, etc. Allies of the United States, at least erstwhile allies of the United States, articulate the importance of the court in other negotiations with the United States. Be it over Xi Jinping or Israel Gaza or negotiations over new trade deals with the Trump administration or whatever it may be. And if they care about it, my personal view is that it's in those alternative spaces and discussions that some of the most important work in protecting the independence and indeed the existence of the ICC has to take place. That's fascinating. Around the UN over the last year, there's been just a lot of talk about the growing relevance and importance of middle-powered diplomacy in the here and now, but also in the future, given actions undertaken by the Trump administration, but also just given broader geopolitical rivalries around the world. And as you're giving me your answer, I couldn't help but think that the ICC will be an important indicator and potentially venue in which this middle-powered diplomacy might exert itself in the ways that you're articulated. So that's fascinating. That's such a good point, right? It's a little bit of a litmus test for those middle-power states. Yeah, I mean, it'll be fascinating, I think, and really important to watch, including from, again, I wouldn't just focus on, even though I did, on Canada and European Western states, but those other member states of the ICC in Africa and Latin America and South America in particular, whether they stand up and rally behind the court that they helped create. Well, Mark, I always appreciate speaking with you and learning from you. Thank you so much for your time. Thanks for having me on the show. Thanks for listening to Global Dispatches. The show is produced by me, Mark Leon Goldberg. It is edited and mixed by Levi Sharpe. 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