Rule or Ruse of Law in the UN International Criminal Court?

Fundamental to the rule of law is equal treatment and non-arbitrary, fair application of law. Instead, the International Criminal Court (ICC) exemplifies UN politicisation of international law principles and bureaucratic corruption of the rule of law, at extravagant cost.

On 30 April 2020, the prosecutor of the ICC filed a response to the submissions of amici curiae, victims, and States participating in Court processes in the “Situation in Palestine.” The response provides insight into the struggling Court’s betrayal of its fundamental role of protecting the rule of law.

The ICC is a UN agency  that was established in 2002 to prosecute the most heinous international crimes  where there is no national court that can do so. With convictions in only four cases in 18 years, it is doubtful that potential offenders are deterred. The eight convictions have all been for crimes in Africa where national courts were notionally unable to prosecute. Due to its prosecutions exclusively of Africans, a collective move (later suspended) by African countries to renounce the ICC was debated in the African Union. Ultimately, the ICC is relegated to the role of signalling for the international community that there is no impunity for the gravest inhumanities. In other words, its function is primarily symbolic.

With headquarters in The Hague, Netherlands, 800 staff, and field offices elsewhere, it is expensive to run: over €1.5 billion so far, with increasing annual costs now running at just under €150 million per annum. Australia provided AUD $9.1 million (over €5.5 million) in the 2018-2019 financial year.

More worrying is doubt over what the ICC symbolises in actual practice. Its brand is tarnished: it is a UN body political in essence, defective in execution and undermining the very tenets of law it was set up to protect.

The ICC is constituted under the Rome Statute, in which some elements are overtly political, such as a revised definition of a war crime (Art. 8(2)(b)(viii)) formulated by negotiators in response to pressure from the Arab League to criminalise Israel allowing its own civilians to move into occupied territory . Its amended definition of international aggression (Art. 8bis) is vague, incoherent, and undermines national rights to self-defence. Most UN Security Council permanent members and the emerging global powers declined to sign the Rome Statute. Ideally, formulation of the world’s most heinous international crimes should be unanimous, obvious, clear, and certain.

Read the full article by Professor Gregory Rose and Maurice Hirsch at the Australian Institute of International Affairs.