Can the ICC Survive 2025?

ICC No more?

Ngofeen: Can you just list for me the four crimes? 

Richard: Genocide, crimes against humanity, war crimes and the crime of aggression. 

Host: When the most ghastly human rights crimes happen around the world, there’s one body that we hear about a lot. The International Criminal Court.   

Archival/NPR: There have been tens of thousands of Israeli military strikes in the Gaza war. One this October stands out. Israel hit a five-story building housing an extended family of well over a hundred people.  .  .

Archival/ABC: The Russian President Vladimir Putin is now a wanted man. After the International Criminal Court formally issued a warrant for his arrest over the war in Ukraine.

Archival/NPR: After the ICC issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Israeli Defense Minister Yoav Gallant …

Archival/Al Jazeera: The chamber pronounces the following individual’s sentences… 

Archival/Al Jazeera: Judges at the international criminal court sentenced Al Hassan to 10 years in prison for war crimes. Not enough, says those who have survived his form of justice in Timbuktu.

Host: One of the benefits of being close to Human Rights Watch is that I can talk to people who know about the institution not just theoretically, but in practice. Which is how I met Richard Dicker.

Richard: Well, I'm an old guy.  Uh,

Host: The founder of the International Justice Program at Human Rights Watch. Richard has seen things. 

Richard:uh, I dropped out of college, uh, and then spent, uh, more than ten years as a labor and community organizer in, inner city Detroit, Michigan….

(audio fades down) 

Host: Do not let his mild manner fool you. With every pause, Richard chooses his words with precision. Those words have taken him to sit and chat with a President, to the carpeted offices of U.S. Senators and Secretaries of Defense, and the halls of the United Nations. 

And he is the one in this episode who’s going to help us understand the ICC, and the world’s most serious human rights crimes. Those four crimes we started with.

Richard: Each one of those are defined in excruciating detail. Each one of them are composed of various elements that the prosecutor has got to prove. For example, crimes against humanity, uh, murder on a widespread or systematic basis carried out against a civilian population as a result of a state or organization policy.   You've got the crime against humanity of murder. And murder has its own particular elements. You've got the crime against humanity of torture and torture has its particular elements that the prosecutor must successfully prove, to even get an arrest warrant issued, let alone a conviction at trial.

Host: Here now, in early 2025, a very important thing is happening in the U.S. which affects the ICC. 

ARCHIVAL/Reuters: The bill is passed .  .  .   The US house of representatives has voted to sanction the International Criminal Court.  .  . America is passing this law because a kangaroo court is seeking to arrest the Prime Minister of our great ally … what the ICC is doing with their arrest warrants is legitimizing the false accusations of Israeli war crimes …

Host: The U.S. Congress is setting up a system that would allow the US to freeze assets and place travel bans on ICC officials. 

Ngofeen: Can you help me understand ….

Richard: This train is going off the rails come January 20th, because the tracks are going to collapse. 

Host: It’s not just the US. Some countries and political figures around the world have laid accusations at its feet. For instance, ‘A court in Europe that prosecutes people in Africa - wow! That sounds pretty fair.’ Which, legitimate criticism. 

Countries have taken pretty particular actions in the last two years. Russia has issued arrest warrants for some of the ICC’s judges and prosecutors, and criminalized cooperation with the court, after the judges in The Hague issued an arrest warrant for President Vladimir Putin for alleged crimes in Ukraine. Israel’s parliament just passed a law criminalizing cooperation with the ICC.

Archival/Reuters: The ICC said it noted the bill with concern. In a statement to Reuters the ICC said “The Court firmly condemns any and all actions intended to threaten the Court and its officials, undermine its judicial independence and its mandate, and deprive millions of victims of international atrocities across the world of justice and hope.” In November, ICC judges said there were reasonable grounds to believe Netanyahu and Gallant were criminally responsible for acts including murder, persecution, and starvation as a weapon of war. That’s part of what the court called a “widespread and systematic attack on the civilian population of Gaza.” Israel has rejected the jurisdiction of the Hague based court and denies war crimes in Gaza. The court also issued …

Host: There’s a pretty big conflict happening. That’s why we gotta try to understand the ICC, like how it came to be, why it’s so controversial, and why it affects everything that we’re all seeing in the news all the time, when it comes to the world’s most serious crimes. 

This is Rights & Wrongs, a podcast from Human Rights Watch. I'm Ngofeen Mputubwele. I am a writer, a lawyer, and a radio producer. Human Rights Watch asked me to look at the human rights hotspots around the world through the eyes and ears of the people on the front lines of history. 

On this episode: the ICC.

{INTRO MUSIC}

Host: The International Criminal Court is in the Netherlands, in a city called The Hague.

The ICC is not a court that investigates anything and everything. Obviously. First off, whose cases does it hear and preside over? The ICC does not cover disputes between countries. That’s the ICJ, the International Court of justice. That’s the court where South Africa sued Israel alleging genocide in Gaza. Both courts - ICC, ICJ - are in the Hague. So they often get confused.

But the ICC is not for disputes at all. It is a prosecutor filing criminal charges against criminal defendants.

Ok, so then WHAT kind of charges, what kinds of cases does the court cover? 

It’s those FOUR crimes. Crimes against humanity. Genocide. War Crimes. Aggression. All of which are very meticulously defined.

For instance, genocide means something very specific. Genocide is acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.

These are the legal definitions that the vast majority of countries in the world have agreed on in a treaty.

So, the ICC’s is actually pretty young. For the last twenty-odd years, the ICC has been working away at prosecuting these four crimes. Richard Dicker was there in the early to mid-90s.

Richard: These discussions would take place in these huge UN conference rooms, you know, with just gazillions of people, speaking sometimes in six different languages. And these were overwhelmingly lawyers, and the detail and terminology was, like, ancient Greek to me.

Ngofeen: Do you remember any of the words that would go by and you'd be like, what are they talking about?

Richard: Uh, Things like, uh, proprio moto, command responsibility, individual criminal liability. And the detail, and the precision of the back and forth discussion over, draft Article 81, Paragraph 6, small Roman numeral 3.   I, yeah, I had gone to law school, but this was a whole other universe, for me. 

Ngofeen:  What was the thing that caused the decision to like, okay, we should start drafting a treaty for the ICC?

Host: The answer to this, honestly, is some the gravest human rights violations imaginable in the 1990s. And there’s this moment in the interview where Richard is there in Rome as the treaty’s getting worked out and I tried to embody this question which I have which is, ‘Ok I understand this is an institution, but it wasn’t around that long, so before it existed, why would you have said this thing matters?’ And I wanted to understand better the answer to that question. 

Ngofeen: So, pretend that I am a colleague of yours. when you're in Rome.

Richard: OK.

Ngofeen: I don't get why this matters. Like, you seem really excited about this, but I don't, I don't quite get it. Like we have the UN, like why, Richard, why are you so, you seem like really into this. Why are you so fired up about it?’

Richard: Well, first, let's talk about very recent events, 

ARCHIVAL/PBS NewsHour: .  .  .   a 100 day killing spree that took one million lives. 

Richard: What occurred in the former Yugoslavia and Rwanda. I mean, the most serious crimes, that exist , committed against the Yugoslavia civilians on the basis of their nationality, ethnicity, religious belief, whole villages slaughtered, women kept as sex slaves, for the prevailing military force of the moment, ethnic cleansing, which was movement, by force of whole communities of Bosnian Muslims, out of their homes and, communities where they had lived for hundreds of years, 

I mean, these were ugly, ugly things that were being done. And the news media covered it. We didn't have cell phones back then for sure, but it was on the television news - the scenes of concentration camp like situations in 1992. I mean, my God, in Europe, no less.   And then followed almost immediately by genocide in Rwanda.

I would say this is important because even today these kinds of crimes are being committed against civilian populations, being slaughtered. There needs to be some permanent, standing, international court 

Okay? That's why I see this as, as being so important. horrors were unfolding in Sierra Leone. Uh, horrors of the similar type in East Timor a few years later, ethnic cleansing against Kosovar Albanians 

The victims of these crimes need to be honored, and determination of guilt or innocence needs to be made by a court of law. in the case of those accused of carrying out genocide, crimes against humanity, and more crimes.

Host: To respond to Rwanda, to respond to Yugoslavia, the UN creates a set temporary international tribunals. 

Richard: For the first time ever in 45 years an international criminal tribunal that would address the most serious international crimes, and I'm talking genocide, crimes against humanity, and war crimes.

Host: By 45 years, Richard means this hadn’t happened since World War 2, since Nuremberg and Tokyo. And after creating these temporary international tribunals, criminal tribunals, then they’re like ‘Ok we can’t keep creating criminal tribunals all the time. We gotta create something permanent, something fixed.’

Richard: We need something with broader jurisdiction, broader authority, permanent not permanent. temporary as the two tribunals were. 

Ngofeen: Were you at, were you at any of the conferences? Like, were you at the conference?

Richard: I, I was, uh, at the conference in Rome, uh, uh, from before the, uh, first gavel banged down on the table to the very end. And I considered it really, the high point of my professional experience, and I was hardly alone in that feeling.

Archival/ICC: Countries worldwide created an international treaty in 1998. The countries ratifying the treaty started to grow and itt took effect in 2002, officially establishing the International Criminal Court, or ICC.

Host: The creation of the ICC was a very very big deal. 

Archival/ICC: The Court is unique in that it was created by a treaty, and not the United Nations, which it cooperates with, but remains independent from.

Ngofeen:Why was the idea of an ICC controversial? 

Richard: Well…

Host: Now this is where the history of the ICC connects to the present. The US Congress, Russia, debates over whether Netanyahu, as a wanted man, can visit Europe, etc. …  It connects in this way:

From the start, the ICC was controversial precisely because of the job it was being asked to do: This controversy isn't just a little logistical bump in the story I should skip. It is the story. The initial controversy sows the seeds of leaders like Donald Trump and other global leaders' skepticism of the institution. 

Richard: Roughly three camps.

Host: In a nutshell, there were three different positions. 

Host: Camp one: 

Richard: Interest and support from all those states that had recently transitioned from dictatorship to democracy and had dealt with some of these very same crimes in their national courts. For example, in Argentina, delegates were fully on board and enthusiastic. 

Host: Camp two:

Richard: There were mixed feelings, frankly, from some of the most powerful Western states. I include the United States, the United Kingdom, and France. Yeah, they were supportive of it, but they wanted to retain control over it. They wanted to be able to turn this new cord on and off as if it were a light switch.

Host: Camp three: 

Richard:  India, Saudi Arabia, Pakistan, Iran, countries with repressive rule  did not warm up to the idea that there would be a permanent international criminal court that theoretically even could have authority over some of their officials for war crimes, crimes against humanity.  

Host: In fact, 120 countries signed. 21 abstentions, 7 nos. The United States signed but never ratified the ICC treaty. Why not?

Richard: That all has to do, I, I submit, with this deep, deep notion of American exceptionalism. Something to the tune of we are the greatest country in the world. and while there might be a need for an international criminal court, and in fact there is, we have to stand above it or apart from it. Because anytime there's a crisis anywhere in the world, the national authorities often ask for U.S. help in the form of U. S. troops in keeping the peace. So, while the International Criminal Court may be appropriate for Brazil or Belgium, the United States, hey, we don't need it. We're the greatest country in the world. We've got the best weapons. best judicial system in the world, and we deploy troops all over the world, making ourselves and those troops into a pol - easy political target. 

Host: And basically, Richard tells me, every administration has had its own approach to the court, but they’ve essentially agreed on a sort of distance or skepticism of the court to varying degrees. 

Richard: The U. S. Secretary of Defense at that point,William Cohen, former Senator of Maine, in early May 1998, Secretary Cohen said to me, unless you can give me an ironclad guarantee that no U.S. service member will ever appear before this court, I cannot recommend to the President that we, the United States Senate, should ratify whatever treaty comes out of the conference. That was how clear the U. S. demands were.

Host: You see a similar thing happening for instance in Israel…

ARCHIVAL/Al Jazeera: The Trump administration has gone further, calling the ICC corrupt, ineffective and biased …

Host: When we come back, what’s happening with the court now?

[HRW Ad: Juanita]

Ngofeen: Can you tell me who you are? What is your name? And what do you do at Human Rights Watch?

Liz: I'm Liz, Liz Evenson, and I'm the director of our international justice program.

Ngofeen: So now it's time to talk to someone to understand what is the status quo with the ICC getting challenged like right now? What is happening right now? And how does this compare to other times when the ICC has been challenged? 

Liz: So the US doesn't belong to the ICC, but over the life of the ICC, you know, it's had like ups and downs. Sometimes it's really supported the ICC, really actually even helped arrest two defendants, um, to make sure they ended up in the Hague, and sometimes it's gone on the offensive and really tried to prevent the court In the first instance from even being created, and then at different pain points, including today, we see efforts from U.S. elected officials to try to really undermine and impede and make it impossible for the for the court to do its job and the pain point for the US has always been the prospect that the ICC could prosecute Americans or that the ICC could prosecute. allies. And right now that really boils down to Israel.

As you said, there's an there's an arrest warrant for the for the prime minister of Israel. This isn't the first time. Unfortunately, the previous Trump administration also imposed sanctions against the ICC partly over Uh, the prospect of, of prosecutions of Israel and partly over the idea that the ICC prosecutor might go after Americans for torture in Afghanistan.

So what we're seeing now started last year already under, under the previous Congress. a move to put back in place, uh, sanctions that could be used against ICC officials, uh, who are involved in the investigation and prosecutions arising out of the, the court's investigation in Palestine.

They haven't happened yet. The house has voted. In favor of them, the Senate is expected to look at it, and it's possible that the President could also just act on his own to put these sanctions back in place. The idea there is to just, you know, put maximum pressure on the court to get it to back away.from, you know, doing what it's really been set up to dowhich is to make sure that there is a place for victims to turn when they're, you know, there's no hope of justice at home.

Ngofeen: I'm in New York. And so I'm talking from the perspective of an American, but it sounds like this idea of sanctioning the court or limiting the court's work is something that's beyond just the U.S.

Liz: Right. So the I. C. C. has one of the most difficult jobs, right? Like it was set up to make sure that no one was above the law. And so that means that there are a lot of people out there with a lot of power who might have something to fear from accountability. And so the court has seen different kinds of attacks. Russia has issued arrest warrants for I. C. C. Judges for the I. C. C. Prosecutor. That's in retaliation for the fact that the I. C. C. Also has an arrest warrant against the Russian president. We've seen other kind of threats to criminalize cooperation with the court. The U.S. sanctions are not alone in that, and  the ICC is always going to face these kinds of threats. But U. S. sanctions are particularly powerful because of, you know, the U. S. 's influence and weight in the world. They pose in some ways a unique risk to the court. Not just these Individuals who might get sanctioned, but because there will be a concern on the part of others to work with the court on the fear that they themselves could end up, you know, being sanctioned or, you know, find themselves a foul of the U.S. authority to enforce those sanctions. So that's why they have this sort of unique possibility to really affect the work in ways that, as much as the court has seen other threats and survived other threats that these stand out, uh, so significantly.

 Host: With all these challenges stacked up against the ICC, I think here’s the thing to remember: it’s not supposed to be the court that’s covering your minutia. It does your hit and run, or your break in. It  isn’t even supposed to be the main place where  cases of even genocide are heard. 

Richard: A court of last resort. Okay. Which meant, when these crimes happen in a country,

Ngofeen: Genocide.  

Richard: Genocide, crimes against humanity, war crimes, when those crimes take place, it really is, first and foremost, the responsibility of the state in place to investigate and prosecute those, deemed to be responsible, all right? Court of last resort. They don't just step in and start investigating and prosecuting. They only do that if the national authorities are unable or unwilling to do so.

Host: To Richard Dicker, this is hugely important.

Ngofeen: The ICC, if that were to cease to exist. What does the world lose?

Richard: The world loses the means of, making operational, making meaningful the phrase, ‘never again’. Uh, it loses the vehicle that the international community, two thirds of states around the world have created to hold in fair and impartial trials those accused of these most serious crimes, to account.  

So the means, the modality, the vehicle, goes away. 

And along with that, any notion that in the year 2025 or 2026 this community has values, and standards that slaughter of civilians and rape as a weapon of war would not be tolerated. It would be hard to make those assertions seriously and credibly with the ICC having been knocked off on account of big power politics, by the incoming administration.

Ngofeen: [00:00:00] Do you think that the efforts to sanction the court, do you think that those sanctions would actually stop the ICC from doing what it does?

Liz: I think it's a risk that has to be taken with the absolute utmost seriousness. But I think it's a risk that can be overcome. So if  the US does go ahead and impose these sanctions, and I certainly hope that that they won't.

I hope they will realize that what's at stake here is a really fundamental value of justice and equality. But if they do go ahead, the court has 125 countries that belong to it, you know, who have signed up to it. It's their court and they have a responsibility to protect the court. Um, in terms of making sure that it can continue to do business, that it has the ability to do that, um, and they can do that by speaking out against these sanctions.

They can do that by making clear that they will provide support that the U. S. might, might withdraw. Yeah, I think the risk is real, but   my hope and I think, you know, I think that this is ideally what we're going to see is that the 125 countries from every part of the world are going to come together and say, don't mess with our court.

Outro

Liz Evenson is the director of Human Rights Watch’s international justice program. Richard Dicker is the founder of that program, and Liz’s former boss.

The news clips in this episode were from NPR, ABC News, Al Jazeera, Reuters, PBS, and the ICC. 

You’ve been listening to Rights and Wrongs, from Human Rights Watch. This episode was produced by me and Curtis Fox. Our associate producer is Sophie Soloway. Thanks also to Ifé Fatunase, Stacy Sullivan, and Anthony Gale. 

I’m Ngofeen Mputubwele. Talk to you again in two weeks.