The International Criminal Court (ICC) has been warned that it faces a challenge to its legitimacy if it fails to prevent the emergence of double standards in justice as a result of attempts to “politicise” its work by some of its own member governments.
Amid the continuing wars in Ukraine and Gaza, the warning comes from international NGO Human Rights Watch, in a 20-page report to the annual assembly in New York of the 124 member states that support the Rome Statute that established the court 25 years ago.
While the diplomatic damage might affect the reputation or perceived legitimacy of the ICC – based in The Hague since 2002 – the real cost would be paid by victims of the world’s worst conflicts who might be unable to have “equitable access to justice”, delegates were told.
“The court’s docket includes Ukraine, Israel-Palestine and Darfur”, said the agency’s international justice director, Liz Evenson.
“Its role is crucial in ensuring accountability and the rule of law. Member countries must do much more so that the court can be even-handed about justice without fear of reprisal.”
Both human rights groups are alluding to countries that support the court and its work in public while privately doing their best in a range of damaging ways to hinder its capacity to function
In tandem with that Human Rights Watch warning came six recommendations from the International Federation of Human Rights, with 188 affiliated organisations. It says the reforms are essential if the court is to tackle this era of discord by “making victim-centred justice work”.
Essentially, both human rights groups are alluding to countries that support the court and its work in public while privately doing their best in a range of damaging ways to hinder its capacity to function.
Chief among them is using the court’s budget to interfere with its work – a tactic first criticised by Amnesty International in 2016 as “hypocrisy at a new level: supporting further ICC investigations one day but refusing to fund them the next”.
In 2022, this same annual assembly whose job is fundamentally to support the court approved an increase to its budget just marginally above the rate of inflation – and far below what it requested to maintain its mission at acceptable levels.
There was little public outcry.
Ironically, while some countries persistently fail to meet their financial commitments to the court, others pledge additional funding on a voluntary basis in situations they support.
Being silent in some cases but vocal in others is often seen as underlining a growing rift between ‘the global north’ and ‘the global south’, socio-economic classifications broadly equivalent to developed and developing countries
This is not also not a sustainable funding model, say the human rights groups, because it allows countries to cherry-pick the ICC cases they wishes to support and those they do not – raising not-unreasonable concerns about the perceived “politicisation” of the court’s strategic decisions.
Similarly, being silent in some cases but vocal in others is often seen as underlining a growing rift between “the global north” and “the global south”, socio-economic classifications broadly equivalent to developed and developing countries.
Human Rights Watch, for instance, notes that “only a few” ICC member countries have addressed the ICC’s role in what it technically terms “the Palestine situation”, in contrast to the flurry of responses to Russia’s invasion of Ukraine in February 2022.
“This has led to perceptions of double standards in governments’ support for international justice, putting the ICC’s legitimacy at risk. ICC member countries should use this assembly to speak formally about the court’s critical role in fighting impunity across all the instances on its docket.”
In a year when Russia instigated “criminal proceedings” against the ICC prosecutor and the court was hit by a cyberattack whose aim was espionage, the NGOs insist caution is well advised – not least to protect the precious civic space where civil society engagement can still flourish.