The International Criminal Court Missed the Mark in Its Investigation in Afghanistan—Increased Legitimacy Is Key to Ensuring That Won’t Happen Again
The politicization of courts is a primary concern of any judicial system, as politics may introduce all sorts of biases into a process that is supposed to be the epitome of objectivity. The International Criminal Court (ICC) is a prime example of the relentless tug of war that exists between legal norms and political interests. The ICC was created to end the impunity enjoyed by many individuals who were suspected of having committed atrocities [1]. It acts as a court of last resort, stepping in when national courts prove to be unwilling or unable to prosecute individuals for genocides, war crimes, crimes against humanity, and crimes of aggression [2]. However, as an international institution, the court is often entangled in political affairs on the international stage, with powerful states unfairly meddling in its decision-making process. The high susceptibility of the ICC to political influence was most recently reflected in the court’s decision not to investigate US crimes in Afghanistan. Given persistent criticism since the court’s inception regarding its efficiency, credibility, and expertise, the ICC has become increasingly prone to disruptions caused by political actors. To minimize states’ detrimental interventions in the court’s activities, I argue that the ICC must strengthen its legitimacy. To do so, the court can draw from the past experience of well-established domestic courts, such as the Supreme Court in the US, which has a generally uncontested claim to normative, judicial, and sociological legitimacy. While the ICC can’t be entirely separate from the world of international politics, states would arguably be less inclined to openly challenge a more authoritative court with increased legitimacy, thus enabling the ICC to prosecute human rights violators and war criminals, as it was set out in the Rome Statute. without succumbing to political pressure.
The recent developments in the ICC’s investigation of crimes committed in Afghanistan showcase the urgent need for the court to limit its vulnerability to political pressure. In September 2021, the special prosecutor of the ICC, Karim A.A. Khan announced that he was seeking permission for his Office to resume investigations into alleged war crimes committed within the territory of Afghanistan [3]. His predecessor launched a probe into presumed violations of international law at the hands of the Taliban, the Afghan government, the American military, and United States (US) foreign intelligence agents [4]. Unlike the US, Afghanistan is a State Party to the ICC, which means that the ICC can assert its jurisdiction over all crimes committed on Afghan territory, including those carried out by US forces. The investigation was held off because the now-defunct government in Kabul requested that the Prosecutor defer this undertaking to the Afghan domestic legal authorities. Given the centrality of the principle of complementarity to the Rome Statute of the International Criminal Court, the Prosecutor assented, envisioning that Afghan national authorities would lead the efforts of bringing to justice the alleged perpetrators [5]. As it is well-known by now, after a series of turbulent political events in Afghanistan, the Taliban seized back power, taking once again the reins of governing the country [6]. In these circumstances, Karim Khan concluded that “at this time, there is no longer the prospect of genuine and effective domestic investigations into Article 5 crimes within Afghanistan,” declaring his intention to reassume control of inquiries into crimes committed in the country. In that same statement, he revealed his decision to limit the scope of the court’s investigation to crimes carried out by the Taliban and the Islamic State – Khorasan Province. Khan justified this change by invoking a lack of resources. This sudden narrowing down of the focus of the investigation came about after an arduous campaign of the Trump administration to derail the court’s efforts of prosecuting American citizens. Trump imposed asset freezes on top prosecutors at the ICC, which are normally sanctions reserved for suspected terrorists and drug lords [7]. The administration also banned prosecutors’ entry into the US, by denying them visas [8]. These measures undoubtedly had a role in the court’s subsequent decision to exclude American suspects from its investigation.
The Afghanistan case highlights that political interference with the ICC’s decision-making process thwarts the court’s ability to investigate suspected criminals. To fulfill its mission without succumbing to political threats, the ICC must strengthen its legitimacy. By establishing itself as an unequivocal authority on international criminal law, the court would dissuade governments from attempting to impede its investigations. Judicial legitimacy refers to “the belief that judges are impartial and that their decisions are grounded in law, not ideology and politics. [...] To the extent that courts are perceived as legitimate by their constituents, their decisions—even their unpopular ones—are respected, acquiesced to, and accepted” [9]. Thus, a state that challenges a legitimate judicial institution that enjoys worldwide respect would likely face significant political backlash both from its citizens and other governments.
While there are notable differences between domestic and international courts, the issue of legitimacy has been a pressing concern for all courts especially in the first years after their foundation. Therefore, the ICC can follow in the footsteps of national judicial institutions which have already successfully established themselves as the ultimate authority on legal matters in their respective country. In his book, Law and Legitimacy in the Supreme Court, Professor Richard Fallon deconstructs the concept of legitimacy, revealing how the Supreme Court acquired and maintained its status as the central symbol of justice in the US [10]. Fallon divides legitimacy into three components. First, moral legitimacy is a normative concept that refers to whether people ought to obey a legal regime, giving the example of Nazi Germany as the archetype of moral illegitimacy [11]. The ICC arguably benefits from moral legitimacy, as its fundamental goal is to hold accountable individuals charged with grave crimes such as genocide.
Second, Fallon argues that a court’s legal legitimacy is another important factor that influences how people perceive a judicial institution. Legal legitimacy entails that judges make decisions according to standards of legality and in ways that are consistent with the existing legal culture [12]. In this regard, the ICC has room for improvement, as its judges have often been involved in controversial situations. For example, Judge Perrin de Brichambaut gave a speech at the Beijing University Law School in 2017, where he revealed that in the case The Prosecutor v. Jean-Pierre Bemba Gombo, the judges agreed beforehand not to grant the defendant any interlocutory appeals, even if it qualified under Article 82(1) (d) of the Rome Statute [13]. The violation of a crucial provision in the Statute constitutes an instance of blatant judicial misconduct on behalf of the Trial Chamber. Brichambaut did not face any repercussions, which reflects negatively on the ICC’s commitment to its own founding principles. To preserve its legal legitimacy, the ICC should penalize judges if they are found to transgress core tenants of the Rome Statute. Other controversies, such as those surrounding judge Ozaki’s decision to continue her term at the ICC while serving as an ambassador in violation of Art. 10(2) of the ICC’s Code of Judicial Ethics, raise questions about the court’s judicial independence. Bassok argues that in a rule-of-law society, people perceive the law as “a scientific endeavor in which the Justices held special knowledge” [14]. However, when judges bend the law to their favor, the legal system is no longer understood as an impartial construct, but rather a discretionary instrument that gives way to political manipulation.
Third, Fallon contends that the Supreme Court has sociological legitimacy, which means that the public regards it as an institution worthy of respect and compliance [15]. The ICC is often under attack for being ineffective, with both legal scholars and lay members of the public around the world questioning its ability to punish and deter perpetrators of war crimes, genocide, crimes against humanity, and the like. Thus, to increase its legitimacy, the ICC needs to prove that it is capable of achieving the mission laid out in the Rome Statute. After the court rejected investigations of US actions in Afghanistan, citing skepticism regarding the court’s capacity to take on this task, four presidents of the ICC Assembly of States Parties (ASP) published an op-ed under the evocative title: “The International Criminal Court Needs Fixing” [16]. They proposed the establishment of an independent committee that would assess the court’s functioning. Such an evaluation could improve the internal management of the court. It is equally important to raise awareness of the role, mandate, and activities of the ICC. Many people around the world have little or no knowledge of the court, enabling states to overtly disobey the ICC, without having to fear public outrage or mass demonstrations. By increasing its outreach activities, the court will establish itself as a key judicial authority on the international stage. Therefore, governments would have to think twice before openly challenging the ICC, as they would risk being branded as ill-intentioned political actors that seek to thwart the operations of a legitimate court of justice.
If the ICC succeeds in increasing its legal and sociological legitimacy, it will likely face less opposition from countries like the US. Even if they disagree with the court’s rulings, government officials that view the ICC as a legitimate and authoritative institution would be more willing to comply with its decisions. Consequently, the court would be free to prosecute individuals who fall under its jurisdictions without facing countless obstacles at each step of its proceedings. A credible ICC will hold responsible all individuals who commit grave crimes and ensure that political leverage does not taint the process of enforcing international justice.
References
[1] Internationaler Strafgerichtshof, ed., Rome Statute of the International Criminal Court (The Hague: International Criminal Court, 2011).
[2] United Nations, “The Role of the International Criminal Court in Ending Impunity and Establishing the Rule of Law,” United Nations (United Nations), accessed October 11, 2021, https://www.un.org/en/chronicle/article/role-international-criminal-court-ending-impunity-and-establishing-rule-law.
[3] “Statement of the Prosecutor of the International Criminal Court, Karim A. A. Khan QC, Following the Application for an Expedited Order under Article 18(2) Seeking Authorisation to Resume Investigations in the Situation in Afghanistan,” accessed October 11, 2021, https://www.icc-cpi.int/Pages/item.aspx?name=2021-09-27-otp-statement-afghanistan.
[4] “Afghanistan and the International Criminal Court,” Human Rights Watch (blog), November 20, 2017, https://www.hrw.org/news/2017/11/20/afghanistan-and-international-criminal-court.
[5] “Statement of the Prosecutor of the International Criminal Court, Karim A. A. Khan QC, Following the Application for an Expedited Order under Article 18(2) Seeking Authorisation to Resume Investigations in the Situation in Afghanistan,” accessed October 11, 2021, https://www.icc-cpi.int/Pages/item.aspx?name=2021-09-27-otp-statement-afghanistan.
[6] Ibid.
[7] “US Sanctions on the International Criminal Court,” Human Rights Watch (blog), December 14, 2020, https://www.hrw.org/news/2020/12/14/us-sanctions-international-criminal-court.
[8] “US Sanctions International Criminal Court Prosecutor,” Human Rights Watch (blog), December 14, 2020, https://www.hrw.org/news/2020/09/02/us-sanctions-international-criminal-court-prosecutor
[9] “Court | Definition, Functions, Structure, & Facts,” Encyclopedia Britannica, accessed October 11, 2021, https://www.britannica.com/topic/court-law.
[10] Richard H. Fallon, Law and Legitimacy in the Supreme Court (Cambridge, Massachusetts: The Belknap Press of Harvard University Press, 2018).
[11] Ibid.
[12] Ibid.
[13] Douglas Guilfoyle, “Reforming the International Criminal Court: Is It Time for the Assembly of State Parties to Be the Adults in the Room?,” EJIL: Talk! (blog), May 8, 2019, https://www.ejiltalk.org/reforming-the-international-criminal-court-is-it-time-for-the-assembly-of-state-parties-to-be-the-adults-in-the-room/.
[14] Or Bassok, “The Supreme Court’s New Source of Legitimacy,” University of Pennsylvania Journal of Constitutional Law 16, no. 1 (2013): 168.
[15] Richard H. Fallon, Law and Legitimacy in the Supreme Court (Cambridge, Massachusetts: The Belknap Press of Harvard University Press, 2018).
[16] “The International Criminal Court Needs Fixing,” Atlantic Council (blog), April 24, 2019, https://www.atlanticcouncil.org/blogs/new-atlanticist/the-international-criminal-court-needs-fixing/.