Where the ICC fails, others will prevail

It’s a quiet morning at the International Criminal Court, tucked in behind the dunes in The Hague. The day I visited there was only one suspect on trial, sitting in a small courtroom behind bulletproof glass: Mahamat Said, charged with war crimes and crimes against humanity committed in the Central African Republic.

Statistically speaking, Said was desperately unlucky to be here. The ICC was founded in 2002 as the world’s first ever permanent court for what are collectively known as “atrocity crimes”. It has since “jailed just five war criminals”, all from sub-Saharan African countries, writes Chris Stephen in his new book The Future of War Crimes Justice. He says the ICC risks becoming “a nice idea that didn’t work”.

Yet the court now has its best ever opportunity for relevance. Its chief prosecutor, Karim Khan, has ordered Vladimir Putin’s arrest on charges of war crimes. Last month, Khan requested arrest warrants for Israel’s prime minister Benjamin Netanyahu, its defence minister Yoav Gallant and Hamas’s three main leaders. Meanwhile, South Africa has brought a case before the ICC’s sister court, the International Court of Justice, accusing Israel of genocide in Gaza. Might The Hague finally become a serious force against atrocity crimes? Or could other courts better play that role?

The ICC’s prosecutors haven’t always been bywords for efficiency. To quote from a recent bulletin about Uganda: “The Prosecutor opened an investigation in July 2004. On 1 December 2023, the Prosecutor announced that the investigation phase in the Uganda situation has been concluded.” No Ugandan suspects are in custody.

But this isn’t entirely the ICC’s fault. Like most international institutions nowadays, it’s underfunded. If there’s a murder down the road in The Hague, 25 Dutch officials might investigate. The ICC might have a couple of investigators for multiple suspected mass atrocities in a huge territory where they cannot safely travel. It’s up to states to arrest suspects. And only 124 states, most of them peaceable or weak, are members of the ICC. The US, China, Russia and Israel are not.

In theory, the ICC’s indictments could shame countries suspected of atrocities. Unfortunately, there is no “international community” with a shared voice that will put pressure on transgressors. Friends of Russia, Israel or Hamas can dismiss the ICC as biased. Russian officials threatened to fire missiles at it. Netanyahu, predictably, has called Khan antisemitic. The Guardian newspaper and two Israeli magazines report that Israel has waged a “nine-year ‘war’” against the ICC, including hacking and smearing of court officials.

I left The Hague sceptical that the ICC will prosecute many more atrocities. But I’m hopeful that other forces will. That’s because the ICC matters less as a court than as the convener of a growing global movement against atrocity crimes. Perpetrators run a rising risk of being tried somewhere — just not in The Hague.

Over two dozen countries now claim some form of “universal jurisdiction” to prosecute atrocities committed anywhere on Earth. The US, with its mighty judicial system, joined their ranks last year. There are ever more universal-jurisdiction trials, such as Switzerland’s recent jailing of a former Liberian warlord who had moved to Lausanne.

Then there are national tribunals in former killing fields from Bangladesh to Colombia, which can prosecute far more local perpetrators than the ICC ever could. Now, the growing numbers of lawyers who work on atrocity crimes are advising Ukraine. Crucially, Ukrainians are gathering evidence while crimes happen, says Kip Hale of the Atrocity Crimes Advisory Group for Ukraine. One day, perpetrators might be tried. The model is the conviction of Khmer Rouge leaders in the 2010s for the Cambodian genocide of the 1970s. This was possible because Yale University and the Documentation Center for Cambodia had collected evidence.

Another type of war criminal may start facing justice: the corporate executive. Sweden is prosecuting two former executives of the company formerly known as Lundin Oil, for allegedly aiding war crimes in Sudan. It’s the first case against corporate bosses since Nuremberg, writes Stephen.

Countries suspected of committing atrocities also face blowback from at least some quarters. The accusations of Israeli genocide surely encouraged Spain, Norway and Ireland — plus Britain’s likely next government — to recognise Palestine.

Putin, Netanyahu and the Hamas leaders probably won’t ever be tried for atrocities, but then the Khmer Rouge leaders didn’t expect to be. Regimes and the world can change unpredictably. Already, war criminals sleep less soundly than before.

Follow Simon @KuperSimon and email him at simon.kuper@ft.com

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