As the International Criminal Court (ICC) marks its twentieth anniversary, Amnesty International has warned that the court’s legitimacy risks being eroded by an increasingly selective approach to justice. The organization highlighted several recent decisions and practices which appear to demonstrate double standards and a willingness to be influenced by powerful states.
For example, in 2020 the Office of the Prosecutor (OTP) decided not to investigate war crimes by UK forces in Iraq, despite its own finding that these crimes had been committed. This was followed by a decision in 2021 to deprioritize an investigation into war crimes in Afghanistan by US and Afghan national forces, with Prosecutor Karim Khan citing viability and budget constraints. But just six months later, the Prosecutor launched his office’s largest ever investigation in Ukraine, for which he had sought ‘voluntary’ financial assistance from member states – much of which was ‘earmarked’ by states for the Ukraine investigation.
The ICC’s budgetary excuses for inaction on Afghanistan, Nigeria and others can no longer be maintained.Agnès Callamard, Amnesty International’s Secretary General
“Twenty years ago the ICC opened its doors for the first time, following a historic decision to create a permanent international criminal court with jurisdiction over the most serious international crimes. For victims and survivors who had been denied justice, the ICC offered a glimmer of hope that perpetrators would be held to account,” said Agnès Callamard, Amnesty International’s Secretary General.
“But it has appeared to veer off course in recent years, with recent decisions by the ICC Prosecutor raising concerns that the court may be heading towards a hierarchical system of international justice. There must be no doubt: the investigation in Ukraine is urgent and vital. But it shows that the ICC’s budgetary excuses for inaction on Afghanistan, Nigeria and others can no longer be maintained.
“The response to the situation in Ukraine has shown what the ICC is capable of. We now call on the Office of the Prosecutor, and on states parties, to ensure that all investigations receive the same standard of treatment, so that all victims of international crimes have equal access to justice.”
Court at risk of manipulation by powerful actors
The international community has shown unprecedented support for the ICC since the Russian invasion of Ukraine. Governments who have previously opposed ICC investigations involving their own nationals or political allies have actively encouraged the OTP to investigate crimes committed in Ukraine.
Meanwhile, the ICC has recently begun accepting voluntary funding and seconded personnel clearly ‘earmarked’ for the Ukraine situation. Without exceptional caution and sufficient transparency, this approach risks allowing states parties to support only those situations which align with their interests. This exacerbates the risk of selective justice and leaves the court vulnerable to manipulation by powerful states.
Amnesty International is also concerned that the court and its principals have largely remained silent on the situation in Palestine and other investigations, in contrast to the publicity they have given to the Ukraine situation. This silence may have weakened the court’s deterrent effect, and has left a void which has been filled with political attacks on the court’s work, as well as attacks on human rights defenders. It is vital for the court’s credibility that its messaging does not appear politicized.
On this twentieth anniversary, we still believe the ICC can play a unique role in the realization of the universal rights to remedy and reparations.Agnès Callamard
Amnesty International is calling on the ICC to ensure that all funding is allocated in a non-discriminatory way and in accordance with the interests of justice, and to ensure that all victims of international crimes have equal access to the rights to remedy and reparations. In particular, and with its increased funds, the OTP should reprioritize its investigations into crimes committed by all parties in Afghanistan. It should also request judicial authority for its hibernated Nigeria investigation, and increase its activities in other situations where it has justified minimal progress with resource constraints.
ICC states parties must ensure that all of the court’s investigations and activities are fully funded – they must not use their resources and cooperation as tools to influence which situations and parties are investigated. Meanwhile, all states who have not yet done so, including Ukraine, must ratify the Rome Statute.
“On this twentieth anniversary, we still believe the ICC can play a unique role in the realization of the universal rights to remedy and reparations,” said Agnès Callamard.
”To fulfil this role, the Prosecutor must pursue all investigations without distinction: into all perpetrators of atrocities, without fear or favour, and no matter how great the political or economic power of certain actors.”