Navigating Between Scylla and Charybdis: How the International Criminal Court Turned Restraint Into Power Play

• Citation: Vol. 33 No. 1
• Publication year: 2018

Navigating Between Scylla and Charybdis: How the International Criminal Court Turned Restraint into Power Play

Rebecca A. Shoot

NAVIGATING BETWEEN SCYLLA AND CHARYBDIS: HOW THE INTERNATIONAL CRIMINAL COURT TURNED RESTRAINT INTO POWER PLAY^{† *}

Introduction: Moving Beyond Existential Challenges to Confront the International Criminal Court's Contemporary Dilemmas

Across nearly two decades since its establishment, volumes have been written and feature films produced devoted to recounting the embattled origin story of the International Criminal Court (ICC or the Court).¹ Despite hand-wringing by perennial skeptics;² opposition of persistent objectors, notably including the United States;³ and second-guessing from disenchanted former proponents,⁴ the ICC is now, in the words of its current chief prosecutor, "a fact of life."⁵ And yet, despite having been a half-century in the making,⁶ "construction [on the Court] continues."⁷

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Caught between powerful international organizations on one side and domineering states (including both States Parties and influential non-States Parties)⁸ on the other, the Court is buffeted between the proverbial twin demons of Scylla and Charybdis. Navigating this treacherous course requires both skill and a steady hand at the helm (favorable winds would also be welcomed, although not necessarily expected, as this Comment further explains).

Recently, and without much fanfare, the ICC had the occasion to demonstrate both traits, as it confronted one of the latest in a series of flagrant instances of non-compliance with the outstanding arrest warrant for Sudanese President Omar al-Bashir.⁹ In a remarkable display of maturity and Solomonic judicial creativity, the bench found a way to assert itself while giving the outward appearance of deference. In so doing, the Court has proven that it can think and act politically without becoming politicized.¹⁰

A. Infancy to Adolescence: The ICC's Difficult Childhood and Growing Pains

Since its inception, the Court has confronted the fundamental challenge of balancing judicial independence against inevitable and necessary interdependence with other institutions and actors.¹¹ Its own former president

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has suggested that the cooperation of States, intergovernmental organizations, and civil society is sine qua non for the Court to deliver effectively on its mission to end impunity.¹²

During the protracted negotiations, from early talks at U.N. Headquarters in New York to the final Rome conference,¹³ advocates sought to protect the Court from political machinations, including the influence of powerful permanent members of the United Nations Security Council (U.N.S.C.).¹⁴ Upon the adoption of the Rome Statute for the ICC, then-United Nations (U.N.) Secretary General Kofi Annan famously lauded the Court as "a gift of hope to future generations, and a giant step forward in the march towards universal human rights and the rule of law."¹⁵ Others have hailed the Court's founding as "one of the boldest progressive moves in the history of international relations."¹⁶ However, observers are fond of saying that international law is "in recession,"¹⁷ "under assault,"¹⁸ or "in crisis."¹⁹ Entire

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conferences have been dedicated to the latter topic.²⁰ Even one of its staunchest and most celebrated advocates, the Hon. Richard Goldstone, when asked to discuss "international law in crisis," demurred, only to go on to suggest that there was a crisis with regard to its implementation.²¹ Although "normative consensus and organizational machinery have largely been established . . . the Court is still young."²² At the frontlines of this battleground and now in its adolescence, the ICC continues to struggle to assert its autonomy.²³

While well-intentioned, the ambitious notion that the Court could be shielded from state interests reflects a naïveté about the realities the ICC would confront. As one of its more respected observers suggests, the "encomium to legal objectivity understates the complexity of challenges to the Court . . . the Statute is ultimately a document of political compromise . . . political choices abound at all levels."²⁴ Phrased differently (and with some degree of understatement), "[t]he relationship between the ICC and the United Nations Security Council was one of the stumbling blocks in the negotiations on the establishment of the Court. . . . The emerging picture is characterized as friction."²⁵ In the summer of 2017, this fractious relationship took a turn.

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B. Potential Proving Ground and Rite of Passage

On July 6, 2017, Pre-Trial Chamber II (PTC II) reached decision regarding South Africa's failure to arrest Omar al-Bashir while he was on South African sovereign territory for the African Union (AU) summit in June 2015.²⁶ The decision did two things: first, the Court resoundingly rejected South Africa's claim that sovereign immunity applied to al-Bashir while he was on South African soil.²⁷ In fact, this point should have been a foregone conclusion, as South African diplomats consulted the Court on the issue prior to al-Bashir's visit and received the same answer.²⁸ Moreover, the Court previously had ruled on numerous similar instances of state non-compliance with al-Bashir's arrest warrant (although differing legal arguments were given by the various judges in these cases, as discussed in Section III.A.).²⁹

Having ruled on South Africa's culpability, PTC II was confronted with a second (implicit) decision: to whom to refer the case to take action against South Africa given that the Court itself has no mandate to sanction and no enforcement mechanism.³⁰ On this second point, the Chamber's decision is notable. Article 87(7) of the Rome Statute provides,

[w]here a State Party fails to comply with a request to cooperate by the Court contrary to the provisions of this Statute, thereby preventing the Court from exercising its functions and powers under this Statute, the Court may make a finding to that effect and refer the matter to the Assembly of States Parties [hereafter, ASP] or, where the Security Council referred the matter to the Court, to the Security Council.³¹

However, it is important to note that,

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[w]hile the Court can make such determinations, it has no authority to decide on remedies or consequences arising from a failure to cooperate. The Statute delegates this function to two executive arms, the ASP, and in cases arising from situations referred to by the Council, the Security Council. The Council and the Assembly are expected to react, within the purview of their own powers, to address the instances of non-cooperation . . . . The provisions on non-cooperation are the sole manner in which the Court and formally and judicially denounce lack of compliance.³²

The Chamber not only used its discretionary authority not to refer the case to either of the available enforcement organs, the ASP or the U.N.S.C., but took the occasion to criticize both.³³ In bold, exceptional, and volatile language, PTC II stated that a referral would be "futile" given the numerous instances of inaction by both bodies with regard to al-Bashir's arrest.³⁴ Further, in a masterful stroke, at a time when "Africa's current relationship with the International Criminal Court has deteriorated considerably"³⁵ and South Africa itself has attempted—unsuccessfully—to withdraw from the Rome Statute,³⁶ the decision not to recommend sanctions or censorious measures gave the State Party an honorable way out of a legal bind. Moreover, citing the state's cooperation (by "self-referring" the matter to the ICC) and referencing the decision of its own Constitutional Court also reinforced the principle of complementarity, reassuring a suspicious and reluctant State Party, as well as chary onlookers (notably, the AU) that the ICC respects state sovereignty and does not intend to overstep its mandate.³⁷

Although largely unnoticed, this Comment posits that the ICC's decision regarding the non-compliance by South Africa regarding the arrest and

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surrender of Omar al-Bashir represents the Court's own "Marbury v. Madison moment," whereby an instance of judicial restraint becomes a power play.³⁸

C. Structure of this Comment and Limitations of Research

Following an introduction, this Comment reviews the history of the case against Omar al-Bashir of Sudan, including the charges against him; his subsequent conduct and that of states he visited; and how these developments have evinced and contributed to dynamics among and between the ICC, individual African states, the AU, and the U.N.S.C. The Comment then analyzes the recent and exceptional decision of PTC II regarding South Africa in light of previous jurisprudence involving state non-cooperation in al-Bashir's arrest. After decoding the messages contained in the decision, the Comment explores if and how the decision betokens an evolving rapport for the ICC vis-à-vis States Parties and empowering organs. Finally, the Comment concludes with some modest recommendations.

This Comment does not purport to analyze the merits of the al-Bashir prosecution; that path is well-trodden.³⁹ Rather, this Comment regards the al-

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Bashir situation as illuminating the broader dynamics between the ICC and its empowering organs. The Comment specifically considers the legal significance of Pre-Trial Chamber II's recent decision regarding South Africa and what it may portend for interinstitutional relations in the future.⁴⁰

I. Omar Al-Bashir; The Contentious Relationship Between Africa, the Court, and the U.N.S.C.; and Power Struggles in The Fight Against Impunity

President al-Bashir is the only sitting head of state or government with a currently outstanding arrest warrant before the ICC.⁴¹ While the merits of the charges and history of the case against al-Bashir are not the direct subject of this inquiry, it is necessary to provide a brief overview of the prosecution to illustrate how this...