Responses to 5 "Alternative Facts" about the ICC

UN Photo/Rick Bajornas

There are facts, and there are falsehoods. However, in the past month, the euphemism “alternative facts” has emerged to confuse the two, and there are few institutions more likely to be challenged by misunderstandings and myths than the International Criminal Court (ICC). So, to help decipher what is factual and what is not, we would like to address five alternative facts about the ICC with actual facts.

“Alternative Fact”: Americans do not want to participate with the Court.

Fact: The majority of Americans support US participation the Court. According to the 2016 Chicago Council on Global Affairs survey, 72% of Americans think the US should to participate in “the agreement on the International Criminal Court that can try individuals for war crimes, genocide, or crimes against humanity if their own country won’t try them.” Furthermore, the Court receives bipartisan public support—79% of Democrats, 67% of Republicans and 65% of Core Trump Supporters agree that the US ought to participate in the Rome Statute. In a repeated phenomenon, Americans have consistently polled in favor of American participation in the Court, and support for the Court has seen an upward trend in the US.

“Alternative Fact”: The Court is an unprofessional body made up of unqualified individuals.

Fact: The Rome Statute places strong criteria for judges, there are no recent examples of unprofessional behavior by any personnel, and all of the current judges are highly qualified. The only exception was Judge Fumiko Saiga, who was not a lawyer and had limited knowledge of international law, but Judge Saiga is no longer on the court, having died shortly after her appointment. The international community learned from the appointment and modified the process of nomination as a result. Now, an independent committee of experts review all nominations for the judiciary. As a result, nominating countries present only candidates that the panel will decide are qualified. Under current practice, it is unlikely for states to nominate an unqualified person.

“Alternative Fact”: Only the most violent atrocities should be prosecuted at the ICC. The conviction and prosecution of Ahmad Al Faqi Al Mahdi for his intentional destruction of religious and historical buildings undermined the Court.

Fact: The ICC did not convict Al Mahdi for a bloody atrocity, but for the war crime of the destruction of internationally recognized sites of cultural and religious significance in Timbuktu. These sites were a UNESCO world heritage location. The conviction was appropriate given that not all war crimes include physical attacks on human beings . The Rome Statute makes the intentional destruction of religious and historic buildings without a military target a war crime under the ICC’s jurisdiction. Therefore, it was completely within the Office of the Prosecutor’s mandate to investigate and subsequently prosecute Al Mahdi, particularly since the Office of the Prosecutor’s evidence against Al Mahdi was sufficient for Al Mahdi to plead guilty. If the Court had ignored the well-established Timbuktu case, it would have violated its mandate and weakened its legitimacy. Furthermore, it did not undermine support for the ICC. There was widespread international support for the case and how the Court dealt with it. Many advocates for the protection of cultural heritage applauded the case. Lastly, the OTP’s decision to prosecute this case does not rule out further investigations into violent crimes under the Court's jurisdiction in Mali and subsequent arrest warrants for individuals responsible.

“Alternative Fact”: The Court is standing on shaky ground with little support and a collective withdrawal from African states on the horizon.

Fact: The ICC enjoys widespread support from over 120 state parties, and a threat of mass ICC withdrawal is not as potent as many believe. The majority of African states, as well as other state parties, voiced support for the Court at the last ASP session. Furthermore, while panic emerged after Gambia, South Africa and Burundi announced their intention to withdraw from the ICC, Gambia has since rescinded its withdrawal and South Africa’s High Court ruled the withdrawal submitted by the executive as “unconstitutional.” In response, to African states’ complaints, the ASP took their concerns in account by proposing a venue which these could be voiced. At the same time, the ASP insisted on maintaining the commitment to end impunity.

“Alternative Fact”: The Court’s inability to capture individuals that it issues arrest warrants for, such as  Omar al Bashir, the current Sudanese President, exemplifies the Court’s failure.

Fact: As an international organization, the Court itself cannot enforce its warrants and orders. Instead, its state parties are responsible for arresting these suspects and transferring them to The Hague. Therefore, it is the states, which refuse to arrest those wanted by the ICC, that are at fault, and their failure should not be a reflection on the ICC. However, international condemnation and public opinion and the rule of law within a state can deter such failure and provoke accountability for those rejecting their duties under the Rome Statute. A perfect example of such action is the recent charges brought by the South African Democratic Alliance against officials responsible for the failure to arrest Bashir when he was in South Africa, after international and domestic criticism. As other states and officials, see the results of failure to uphold Rome Statute duties they will be less inclined to follow suit. Moreover, the Court’s docket shows that it has been able to obtain custody of a significant number of persons under its arrest warrants.

Written by Taylor Ackerman