Why the International Criminal Court is a Success

Stefan Kirchner

The International Criminal Court (ICC) has been operative since 2002. However, since
then it has dealt only with very few cases and these cases have often been less
spectacular than might have been expected, in particular in light of the high
expectations placed on the ICC by large parts of the international community. Also the
long duration between the Nuremberg Tribunal and the ICC and the debates in the run-
up to the Rome Statute, the expectations have been very high. In particular the work of
the ICTY and the ICTR since the 1990s have led to very high expectations as to what the
ICC can achieve.

However, the ICC functions differently from the ICTY and the ICTR. The temporary
tribunals were created with specic situations in mind. Neither in the former Yugoslavia
nor in Rwanda were the local courts capable of providing meaningful criminal
investigations. The ICC on the other hand is based on the complementary principle. This
means that the states which have ratied the ICC have the primary responsibility for
implementing it. Only if they are unable or unwilling to do so will the ICC be able to get
into action.

The success of the ICC therefore cannot be measured like the success of other
international courts, for example in the number of cases which have been handled.
Rather, the Rome Statute (unlike the statutes of other international courts) has created
obligations for the states which have ratied it. This is where the true success of the
Rome-Statute lies. Therefore the question has to be asked more precisely. The Rome
Statute has received very far-reaching support (although some major countries are still
missing). If the question is meant to mean how effective the entire ICC project has been,
then the yardstick has to be the level of domestic implementation of the ICC statute.
From this perspective, the ICC has been successful because many states (more than
100) have ratied the ICC Statute.

In order to be a success, the ICC does not have to handle thousands of case. It is
necessary that national courts in the countries which have ratied it implement the rules
included in the Rome Statute. In the long run, the ICC will be a success if war crimes,
genocide and crimes against humanity are made history.

But also from the perspective of the Court as an institution, it has not been a failure. The
number of cases is not a sufcient indicator in this regard. What is more important is that
cases have been opened and that the system as such is functioning. Like in the case of
the International Tribunal for the Law of the Sea (which is only one of several different
options for the peaceful settlement of disputes in the law of the sea), the ICC has shown
that it works. There has been some criticism that the ICC had only dealt with situations in
Africa. This is explained easily: the complementarity principle means that states which
lack an effective judicial infrastructure are more likely to be unable to deal with situations
as those which are included in the ICC Statute, that in turn makes it more likely that the
ICC will have to take over. This is more likely the case in developing than in developed
countries and a large number of developing countries in which situations happen which
are relevant for the ICC happen to be located in Africa. In addition, in May 2014 it was
made public that the behavior of UK soldiers in Iraq is now under investigation by the
ICC. Therefore the charge that the ICC is too focused on Africa might soon be a thing of
the past.

Overall, the ICC has been successful - but its success is to be measured in a different
way than that of other courts. To some extent its success can be compared with the
success of the European Court of Human Rights in some European countries: while
there might be relatively few (i.e., less than one would expect given the population)
cases before the European Court of Human Rights against established states parties
such as the UK: in this context, too, it is also the domestic effect of the ECHR which in
legal terms is more relevant than the number of cases. The same can be said with regard
to the ICC.