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Comment on the Decentralized Accountability Question: “How, and to what extent, should the ICC’s Office of the Prosecutor engage with national, regional, or other authorities or organizations to support accountability for those accused of grave crimes?”

Zishan Yu
47612
September 11, 2023
3:18 pm

A Win-Win Situation: Cooperation Between the International Criminal Court and Regional Organizations

I. Introduction

This comment addresses the challenges that the International Criminal Court (ICC) faces in today’s rapidly changing world. Some people are disappointed that only a few perpetrators have been tried by the ICC, and that the vast majority have so far escaped consequences for their crimes. Some countries are concerning the ICC will interfere their internal affairs as well as their national sovereignties.

However, cooperating with regional organizations may be a proper solution to these problems. Regional organizations have a better understanding of local governments and people, as well as local problem-solving approaches and political situations, and can promote peaceful solutions to problems before large-scale conflicts occur. If regional organizations can resolve regional conflicts by a more peaceful means, thereby reducing the likelihood of mass atrocities, then they can help the work of international criminal tribunals in their role of preventing mass crimes. And, with fewer procedural constraints than the ICC, regional organizations may be more efficient than the ICC in resolving local problems.

This comment argues four aspects that the ICC can cooperate with regional organization. First is the ICC can use their extensive influence in the international community to facilitate or even help them to find sponsor to the work of regional organizations. Second, the ICC could send some of their experts to regional organizations to give them some training courses both in how to work legally in local issues and how to draft internal regulations. Third, the ICC can consult with regional organizations on how to publicize, in what form, and with what content to achieve the best results, in order to develop the most effective and targeted means of publicizing in a region. Last but not least, an information linkage mechanism could be established between regional organizations and the ICC.

II. A New Challenge of Today

The international community of the Second World War has put in place many international and regional mechanisms for the protection of human rights, but millions of people still fall victim to genocide, crimes against humanity, war crimes and crimes of aggression. It is shameful that only a few of the perpetrators were finally trialed by international court, and the vast majority of them have escaped the consequences of their punishment to this day. Some commit their crimes with the full knowledge that there is only a small chance that they will be brought to justice. An the ICC would serve several purposes: to deter those who are prepared to commit or carry out serious crimes under international law; to enable national prosecutors, who have a fundamental responsibility to prosecute perpetrators, to carry out their duties; to bring truth and justice to victims and their families as a first step toward healing; to assist victims and their families in obtaining reparations; and to assist victims and their families in obtaining reparations when those in control of the state apparatus are unable or unwilling to ensure that human rights abusers are duly punished. When the groups in control of the state apparatus are unable or unwilling to ensure that the perpetrators of human rights violations are duly punished, mechanisms representing international justice must step in.

However, the ICC is now facing many challenges. Today, when we are looking at statistics of the ICC, we can’t help feeling a little bit disappointed that things did not go as well as we expected. It took International Criminal Tribunal for the Former Yugoslavia nearly twenty-five years and about $3 billion to try more than one hundred defendants.1 Trials in all of these tribunals have moved very slowly, taking years from arraignment to appeal. In some cases, delays in justice have turned into denials of justice.

Beside these slow trial procedures, there are many countries withdrawing the ICC in these years. On November 16, 2016, Russian President Vladimir Putin signed an order announcing his withdrawal from the ICC in The Hague, the Netherlands. According to RIA Novosti, Russian President Vladimir Putin has instructed the relevant ministries to inform the U.N. Secretary-General that Russia does not intend to become a member of the Rome Statute of the ICC.2 The U.S. initially signed the Rome Statute under the Clinton administration but later withdrew, under the leadership of George W. Bush. Sudan and Israel have also withdrawn their signatures in the past, while other nations—including China and India—have rejected membership outright.

In this case, the ICC need to work harder to achieve its goal of combating serious crimes and upholding justice and fairness. Cooperating with regional organizations can be a proper solution to this challenge we are facing today. However, the ICC has been working hard to accomplish its original goals, and despite pressure from all sides and often without sufficient understanding and support from the international community or even local people, the ICC has persevered in bringing the concept of fairness and justice to the world.

III. Regional Organizations in Solving Regional Conflicts

Peace and security are the eternal pursuit of human society, and there has been a long-standing dispute between globalism and regionalism on the issue of peace and security. After World War II, the political elites of the victorious countries established a collective security system centered on the U.N. Security Council, but with the changes in the international situation after the Cold War, the trend of regionalization of security emerged. In the post-Cold War period, especially in the last decade, regionalization of security is becoming an important feature of the new international security order, and the status and role of regions in the global security architecture is becoming increasingly prominent. Some scholars argue that regionalization, as the only intermediate channel between the state and globalization, can unify most social forces and serve as a buffer zone and medium between nation-states and the international community.3

Since February 2011, the Libyan conflict in North Africa has become the focus of international attention in recent years. The weak border defense between Libya and its neighbors, as well as the inextricable links between ideological and ethnic issues, have quickly turned the conflict into a regional event, and the situation in North Africa continues to be volatile. In terms of the consequences of conflict, the issue of human security in the African region is prominent, and in all conflicts, we see tragic scenes of displacement of innocent civilians, rampant disease, and massive population loss. In Congo, for example, the number of deaths directly or indirectly caused by conflict has exceeded the number of British deaths in World War I and World War II combined, while in the Darfur region of Sudan, nearly two million people have been displaced by civil conflict.4

However, despite being at the weakest link in the global security chain in the post-Cold War African region, the external support it can receive from the international community does not match its security needs. There are some reasons that caused this situation. First, in the face of the new security situation, the United Nations hopes that regional forces will share more and “undertake” the responsibility and obligation to maintain peace and security in the region. Second, the U.N. has shown a tendency to be selective in resolving regional conflicts.5 Third, major Western countries have adjusted their security policies toward the African region. The post-Cold War U.S. approach to regional security in Africa manifested itself in the need for Africa to assume its own responsibilities, and based on this purpose, the U.S. encouraged regional organizations to play a role in maintaining regional security.6

Under the influence of the above factors, external forces have been absent from security governance in the African region, which in turn has pushed African countries to seek to form mechanisms to maintain security at the regional level to bridge the gap between reality and needs. African countries have also begun to show more recognition of the involvement and role of their own regional organizations. In 2003, for example, the Sudanese government opposed the presence of international actors other than the African Union in Darfur, fearing that it would infringe on its sovereignty. It was only through the good offices of the international community that Sudan agreed to send a hybrid U.N.–AU peacekeeping force to Darfur. Similarly, in the 2002 conflict between the Sudanese government and Southern opposition forces, the parties to the conflict also saw the East African Intergovernmental Authority on Development as a more appropriate actor to play a central role.

At the same time, regional organizations have some natural advantages in resolving conflicts in the region. For example, African regional organizations are located in the region and know the region better; they are the first to feel the impact of regional conflicts and have more urgent political will to respond quickly to conflict events; they intervene in regional conflicts with a more moderate action posture, which is more acceptable to the parties to the conflict. The relatively poor governance capacity of most African governments makes it easy for an internal conflict to spread into a regional threat, and regional organizations try to remedy and resolve this dilemma to some extent. All of these reasons make regional organizations uniquely positioned to play a role in regional conflict resolution actions that other international actors cannot.7

If regional organizations can resolve regional conflicts by a more peaceful means, thereby reducing the likelihood of mass atrocities, then they can help the work of international criminal tribunals in their role of preventing mass crimes.

IV. Cooperation Between the ICC and Regional Organization

If the ICC can enter into cooperative relationships with regional organizations and sign cooperation agreements, a win-win situation can be achieved. Compared with regional organizations, international criminal tribunals have broader influence and appeal at the international level; and regional organizations also have local mediation capacity that international criminal tribunals cannot have. For example, regional organizations can effectively break the time limit of international criminal tribunals by solving problems at the local level. International criminal tribunals need to follow procedural justice, but procedural justice also sacrifices efficiency to a certain extent. Regional organizations, on the other hand, do not need to be subject to too many procedural restrictions because they are not court trials, and they can be more flexible in solving problems locally.

Take African Union Mission in Burundi as an example, prior to the withdrawal of the AU Mission in Burundi (AMIB) from the mission area in 2004, a stabilization posture had been effectively maintained over 95% of Burundi’s territory, facilitating access for humanitarian relief supplies, and providing protection for the return of specially designated leaders. It can be said that AMIB has succeeded to some extent in ensuring the “political and economic security” of Burundi. And the stabilization of the situation in Burundi paved the way for the UN’s intervention, and the U.N. peacekeeping force in Burundi replaced AMIB in June 2004 to carry out the peacekeeping mission.8 This case clearly demonstrate that African regional organizations are uniquely positioned and can play a positive role in maintaining regional peace and security. Their familiarity with the region and their ability to respond quickly make them an “advance guard” in maintaining regional peace and security, but limited by their lack of resources and capacity, they often also need the support and assistance of the U.N. and Western powers.

The most obvious difficulties for regional organizations in carrying out their actions are their lack of capacity and resources. The African Union (AU), Economic Community of West African States (ECOWAS), and other African regional organizations generally face a lack of resources problem, with the AU mission in Sudan, the ECOWAS operations in Liberia, and in Sierra Leone eventually being taken over by the United Nations. In the case of the AU, for example, about one-fifth to one-quarter of member states are unable to meet their financial obligations to the AU, forcing the AU to rely more on external assistance and raising questions about the sustainability and ownership of the AU operations.9 The dilemma regional organizations are facing is where the ICC can actively engage and make some difference. While not necessarily in a position to support the work of regional organizations with their own funds, the ICC can use their extensive influence in the international community to facilitate or even help them to find sponsor to the work of regional organizations.

Second, the deep-rooted issues in the actions of regional organizations are then the basis for the legitimacy of actions within the framework of the organization. Regional organizations are an effective option for maintaining regional peace and security and can play a positive role in using local approaches to solve local problems. However, regional organizations also face a double dilemma in terms of reality and international law when establishing regional collective security mechanisms based on the concept of regionalization of security to cope with the conflict-ridden security situation. It is regulated in Constitutive Act of The African Union that:

[T]he right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity.

It is clear that this provision draws on the relevant provisions of the Rome Statute, thus demonstrating the influence of international criminal tribunals on the legitimacy of regional organizations. It is understandable that regional organizations, with limited human and financial resources, often do not have the same number of legal and international political talents as the ICC, and therefore need the help of the ICC in drafting constitutional charters, establishing working regulations and ensuring the legitimacy of their work. It is practical that the ICC could send some of their experts to regional organizations to give them some training courses both in how to work legally in local issues and how to draft internal regulations.

Publicity is also another important part in cooperation between the ICC and regional organization. If cooperation can be reached with the ICC, in a way it means that a regional organization is recognized at the international level. And the ICC has also been committed to extending the concept of human rights, fairness, and justice to all regions. At a regional level, the ICC is likely to be less well known and recognized than a regional organization that is widely recognized within a region. The ICC can consult with regional organizations on how to publicize, in what form, and with what content to achieve the best results, in order to develop the most effective and targeted means of publicizing in a region. With their knowledge and experience in local community, regional organization can be a wonderful partner as well as counselor in publicity.

In addition, an information linkage mechanism could be established between regional organizations and the ICC, with regular communication and exchange of information between the two sides. In today’s international community, information is a very valuable resource. If the ICC can reach information cooperation with regional organizations, they can obtain timely information about the local political situation, armed conflicts, and even information about the defendants at the prosecution stage. The ICC can also share their understanding of the international political situation with regional organizations in a timely manner and use it to bring about the linkage and cooperation of more regional organizations. In this way, regional organizations have become information suppliers to the ICC, and the ICC has become a hub of information for many regional organizations. The ICC could even use this information advantage to hold regular meetings of regional organizations, not necessarily offline, but also online, to further promote inter-regional communication and conflict resolution.

V. Conclusion

Facing challenges today, the ICC should actively seek cooperation with regional organizations. There are four aspects for the ICC to seek cooperation with regional organizations, which is international criminal help regional organizations to find sponsors, the ICC send some of their experts to regional organizations to give them some training courses, the ICC and regional organizations help each other to publicize, establish information linkage mechanism between regional organizations and the ICC. Both parties should actively sign a cooperation agreement to define these details in order to seek long-term stable cooperation.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1.
Marieke Irma Wierda, The Local Impact of a Global Court: Assessing the Impact of the International Criminal Court in Situation Countries, 90 (Jan. 9, 2019) (Ph.D. dissertation, Leiden Law School), available online. ↩
2.
Russia Withdraws from International Criminal Court Treaty, BBC News, Nov. 16, 2016, available online. ↩
3.
Zaki Laidi, A World Without Meaning: The Crisis of Meaning, in International Politics 140 (Sep. 14, 1998), available online, doi. ↩
4.
See Selim Jahan, United Nations Development Programme, Human Development Report 2015: Work for Human Development (2015), available online. ↩
5.
See Martti Koskenniemi, The Place of Law in Collective Security, 17 Mich. J. Int’l L. 455 (1996), available online. ↩
6.
International Relations Subcommittee on Africa, African Crisis Response Initiative: A Security Building Block, H.R. No. 107–20, 107th Congress (Jul. 12, 2001), available online. ↩
7.
Jane Boulden, Introduction, in Dealing with Conflict in Africa: The United Nations and Regional Organizations 3 (Jane Boulden ed., 2015), paywall, doi. ↩
8.
Festus Agoagye, The African Mission in Burundi: Lessons Learned from the First AU Peacekeeping Operation, ISS 9, 14 (Aug. 26, 2004), available as download. ↩
9.
The African Peace and Security Architecture, AU, available online (last visited Aug. 29, 2023). ↩

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