Payam Akhavan on how to fix the International Criminal Court

The International Criminal Court was established two decades ago to prosecute the perpetrators of genocide, crimes against humanity, and war crimes.

But from its beginning, the court has been controversial. Some see it as an attack on national sovereignty — or a neocolonial institution that disproportionately targets Africans. Others consider it a toothless organization, powerless to bring some of the biggest villains of our time to justice.

As populist movements have spread around the world, attacks on the International Criminal Court have intensified. Donald Trump, Benjamin Netanyahu and other leaders have dismissed the court as illegitimate.

Either we create global institutions that will allow us to effectively govern the world, or we will be forced to do so after some unimaginable catastrophe leaves us with no choice.- Payam Akhavan

Human rights scholar and McGill University professor Payam Akhavan has been on the front lines of the development of international justice. He was the first Legal Advisor to the Prosecutor's Office of the International Criminal Tribunals for the former Yugoslavia and Rwanda at The Hague — precursors to the ICC. He delivered the 2017 Massey Lectures, In Search of a Better World.

Akhavan spoke to The Sunday Edition's host Michael Enright about international justice in the age of populism, the court's recent decision not to proceed with a case about alleged U.S. war crimes in Afghanistan, and what the future holds for the ICC.

Here is part of their conversation.

Where did the idea [for an international criminal court] come from?

The first international criminal jurisdiction was the Nuremberg tribunal, established in 1945 to try the top Nazi perpetrators. When the Nuremberg judgment was delivered in 1946, the United Nations entrusted the International Law Commission with drafting a statute for an International Criminal Court.

So there was a window of opportunity to move international law towards an effective system. However, the Cold War paralysis put this project on hold until the end of the Cold War in 1991, which coincided with the violent disintegration of the former Yugoslavia. And that's when the first ad hoc jurisdiction was established by the U.N. Security Council, opening the way for the ICC in 1998.

Can you give us a primer on how the ICC actually works? Who determines who will be prosecuted?

The International Criminal Court is complementary to national jurisdictions. In the first place, it's for national courts to prosecute leaders responsible for international crimes. But obviously, there will be situations where national courts are either unwilling or unable. But the more basic principle of jurisdiction is that a state has to actually consent to the jurisdiction of the court by ratifying the [1998 Rome Statute.]

Does the court have authority to prosecute atrocities such as genocide in countries that aren't signatories to the 1998 Rome Statute?

No, with one exception — which is when the Security Council refers a situation to the court. It happened in 2005, in respect of Sudan, and there was an investigation on the atrocities in Darfur, and an arrest warrant was issued against President Bashir, who was [recently] deposed.

And then in 2011, the Security Council did the same thing for Libya, during the uprising against the Gadhafi regime. But other than those two exceptions … the court can only investigate countries that have accepted this jurisdiction.

So the ICC, in a sense, owes its mission and mandate to the leanings of the Security Council in any given situation. For example, any investigation of Syria has been blocked by the Security Council.

Well, this is the problem. The states, typically, that accept the court's jurisdiction are states that believe in the rule of law and they are the states that were least worried about. It's the culprits like Sudan and Syria that don't accept the court's jurisdiction, which leaves Security Council action as the only option. And in respect of the mass atrocities of the Assad regime, Russia twice vetoed a resolution which would have referred the situation to the court.

Speaking of Sudan, will Omar al-Bashir ever be delivered to The Hague?

The military government which deposed him has indicated that they would not surrender him. At the end of the day, we learned a lesson from the extradition of Slobodan Milošević in the former Yugoslavia — a man who was once untouchable. The international community basically gave the government a choice — that if it wanted a several hundred million dollar financial package for economic recovery, it would have to hand Milošević over, and it worked.

With respect to Sudan, the international community has to incentivize cooperation. The court is like a giant with no arms and no legs. The court can issue arrest warrants, but it doesn't have an army in the basement that can go and enforce that. So the powerful states have to support the court in order to make it effective.

Is there something disquieting about the pressure involved in that? Is it like bribing a cop — if you arrest someone, I'll see to it that your precinct gets a new coffee machine?

We are dealing with the reality of a very weak and primitive system of international criminal justice. The mere fact that we have an International Criminal Court took us half a century from Nuremberg, and even then we ended up with a toothless, weak, marginalized court.

We have to start from somewhere — this civilizing process of introducing the rule of law into the cynical, sordid culture of international politics. Throughout the U.N. era, genocide has been committed with impunity. At least now we have a court that, in some instances, can speak truth to power. So the reality is that until the day when we have a global police force that can execute arrest warrants — that is not going to happen anytime soon — we have to use what levers we have to induce states to cooperate.

When the ICC began examining possible U.S. war crimes in Afghanistan, Donald Trump's national security adviser John Bolton attacked the court, saying: "The United States will use any means necessary to protect our citizens and those of our allies from unjust prosecution by this illegitimate court. We will not cooperate with the ICC ... We will let the ICC die on its own. After all, for all intents and purposes the ICC is already dead to us." Why are the Americans so opposed to the ICC?

In the Rome diplomatic conference in 1998, the Americans had wanted a provision in the statute where the consent not only of the state on whose territory the crime was committed was required, but also the consent of the state of nationality of the perpetrator. They did not succeed, which is why they voted against the adoption of the Rome Statute. 

So the problem here is that Afghanistan is a state party and the alleged crimes have been committed by U.S. forces on its territory. So the court has jurisdiction, but the U.S. is not under any obligation to cooperate with the court. So in a sense, Mr. Bolton's statement that the U.S. will not cooperate isn't highly controversial, because the U.S. is not a party to the statute of the court. 

Mr. Trump revoked the travel visa of the chief prosecutor to the United States, and then the announcement was made that the ICC is dropping any investigation or prosecution in the area. Doesn't that confirm suspicions about what kinds of perpetrators the court is willing to prosecute?

It puts the court in a very difficult position. But I think the court has more fundamental problems. In 20 years, this court has only succeeded in prosecuting a handful of perpetrators, and half of those have resulted in acquittals.

And they're all from Africa.

Well, yes, they're all from Africa. But the more fundamental problem of the court — the lack of resources, lack of political support is an issue. I think there have also been a lot of blunders made by the prosecutor's office in the investigation of cases, which have ended up being dismissed even before they've gone to trial for lack of evidence.

In a better world, the Americans would be a party to the court statute. So would the Russians, so would the Chinese, so would the Indians, but they're not. And in the meanwhile the court has to do what it can.- Payam Akhavan

So the question is whether going after the Americans is a priority for the court, at a time when it has to investigate much more compelling cases. For example, in the eastern Congo, in the Kivu region, some six million people were killed as a result of the armed conflicts that occurred there from the late 1990s until the middle of the 2000s. And the court has only had three trials, I believe, in respect of those mass atrocities.

One of the problems with the court is that it's spread too thin. When you investigate one case and then jump to the next, you're not able to investigate properly. That's why the Yugoslav and Rwanda tribunals were successful, because for years there was a focus on a specific country. You develop a network of informants and witnesses. So I think that the court should basically tell the Assembly of States Parties, "You haven't given me sufficient resources to investigate 20 situations. I'm going to choose the four most serious atrocities." And it doesn't matter if they're in Africa or Asia.

But they all seem to be in Africa. The 44 people indicted are all from African states.

That's because the worst atrocities in the world are being committed in Africa.

But there are atrocities being committed elsewhere.

Well, I'd like to know where in the world there are atrocities that's compare to what happened, for example, in northern Uganda with the Lord's Resistance Army, in the Central African Republic, in the eastern Democratic Republic of Congo. The court is now doing a preliminary examination into the Rohingya atrocities, which are in Asia. Except Myanmar is not a party to the court's jurisdiction. And the only basis for the investigation is the crime of deportation, because of the mass expulsion of the Rohingya into the territory of Bangladesh, and Bangladesh is a state party.

But I think that we need to be a bit cautious about the critique that the court is a neocolonial institution. When the Yugoslav tribunal was established, the complaint was that if the victims were African, the U.N. would have done nothing. And there is some truth to that. 

Now the complaint is that there's too much focus on Africa. That complaint has come very often from the likes of President Bashir of Sudan, who is hardly disinterested. It doesn't come from African victims. I agree that the court should expand beyond the African continent, but it so happens that the vast majority of African states have accepted its jurisdiction. Most of the cases — Congo, Uganda, Central African Republic — were referred by those governments to the court. They asked the court to come and investigate.

In a better world, the Americans would be a party to the court statute. So would the Russians, so would the Chinese, so would the Indians, but they're not. And in the meanwhile the court has to do what it can with the limited resources and very limited political backing that it has.

Is it your view that the court can be reformed or that it should be torn down, and let's start over again?

I don't think we have the luxury of tearing down the ICC. It took us 50 bloody years to establish this weak and fledgling court. The culture of international politics has to slowly integrate the reality of accountability. What does it mean to actually have a system of justice which holds political leaders accountable? So it's going to always upset the status quo. This is the painful transition that we're going through now.

But it's also going against the current political grain in the world, which is all about sovereignty. How does something like an international court of justice swim against that trend?

It's quite disturbing to see today the hateful populism which contains in it the same ingredients as I saw in the former Yugoslavia and Rwanda. We are entering a stage where we can no longer take for granted our own commitment to the rule of law. We need to realize that we're not immune from the same forces of violence that we see elsewhere in the world.

Global interdependence is not some poetic future vision. It's an inescapable reality. So either we create global institutions that will allow us to effectively govern the world, or we will be forced to do so after some unimaginable catastrophe leaves us with no choice. The International Criminal Court, the rule of law, has to be seen as not just lofty aspiration for a bunch of do-gooder human rights activists, but as an essential instrument of global governance. And we will all pay the price for having weak global institutions sooner or later.

Payam Akhavan's comments have been edited for length and clarity. Click 'listen' above to hear the interview.