The International Criminal Court (ICC) is in trouble. For commentators and observers of the Court, one crisis seems to lead to another, with the result that the field of international criminal justice has been described as being in “perpetual crisis.” After a brief “revitalization” of the Court due to its rapid response to Russia’s large-scale invasion of Ukraine in 2022, in recent events its investigation into the Palestinian situation has led to increased politicization and to a reluctance of States towards its work, particularly in so-called liberal democracies like Israel and the United States.
At the same time, the liberal international order faces its own challenges. Dictatorships are on the rise, and seventy percent of the world’s population now lives under them, meaning that the level of democracy has returned to 1989 levels; the liberal democratic gains of the last 30 years have come to an end. Without delving into what this means in terms of prospects for peace or increased violence, it raises questions about what an increasingly autocratic world might mean for the future of international criminal justice, given that the ICC depends entirely on the cooperation of states to do its work. For example, to effectively investigate international crimes, the Court needs access to territories and communities of victims and witnesses, including (state) security arrangements for its staff. Because the Court does not have its own police force, it also depends on states to enforce arrest warrants. Yet, as we know, state cooperation with the ICC is, at best, uneven and volatile. Thus, a central question remains whether non-state actors can fill at least some of the gaps resulting from the lack of state support and cooperation with the Court. In the remainder of this article, some of the fundamental questions regarding the past and present roles of civil society in the pursuit of international criminal justice are addressed, drawing on a recent article published in International Criminal Law Review.
Much of the early scholarship on civil society engagement with the ICC praised the broad participation of NGOs at the 1998 Rome Conference at which the ICC was established, celebrating the ICC as a “global success story of civil society” – a court “by the people, for the people”. After the ICC became operational in 2002, international human rights NGOs have been involved in almost every aspect of the Court’s operation, from setting the conflict agenda, to documentation and investigations on crimes, communicating with victims and victim communities, lobbying States for political and financial support for the Court, advocating for the ratification and implementation of the ICC statute in national justice systems, strengthening international justice capacities: the list is endless. International human rights NGOs have become full-fledged advocates of international criminal justice while participating in the daily functioning of the Court.
In recent years, additional new “types” of NGOs and civil society actors have become important in the field of international criminal justice, as demonstrated by ongoing developments in efforts to achieve accountability for international crimes in Syria and Ukraine.
In response to the ICC’s lack of jurisdiction over the conflict in Syria, various civil society actors, including international organizations and local NGOs, have worked to collect and preserve information, document and mount cases. files, with the aim of establishing responsibilities for international crimes. committed in Syria, including by the State itself. This includes local NGOs such as the Syrian Network for Human Rights and documentation actors such as the Violations Documentation Center established by Syrians immediately after the uprising began, as well as international organizations such as Bellingcat, the United Nations Commission on Syria, the International, Impartial and Independent Mechanism (IIIM) and the Commission on International Justice and Accountability (CIJA).
While in the past local and international NGOs have been involved in documenting international crimes, notably for the ICTY and ICTR, there is something qualitatively new about actors such as the CIJA working in the field of justice international. This reflects a growing privatization of international criminal justice and a “shift away from the practice of conducting international criminal investigations under the aegis of public institutions.” Because Syria is not a member of the ICC (and is a closed autocracy) and China and Russia have vetoed a referral of the situation to the ICC by the Security Council, the legal vacuum in the International criminal justice has paved the way for this type of trial. “entrepreneurial justice”. However, the privatization of international criminal justice could raise some accountability questions. It should be noted that these models rely on “local capacities” within the autocratic state, that is, on dissidents and local NGOs.
The full-scale Russian invasion of Ukraine triggered an unprecedented international (Western) mobilization for investigation and prosecution of war crimes. A multiplicity of national and international NGOs are now involved in collecting, documenting, investigating and preparing masses of data on war crimes for prosecution in various courts, legal institutions and jurisdictions. In addition to a host of international organizations, including the ICC and Eurojust, and contributions from Western states, domestic NGOs in Ukraine are heavily involved in documenting Russian war crimes. Documentation of war crimes is also crowdsourced among the Ukrainian population, with the Ukrainian prosecutor’s office having created a dedicated homepage where citizens can record and document war crimes.
This “democratization” of national NGOs and civil society actors engaged in documenting international crimes is facilitated by digital technologies and the availability of digital evidence such as open source information. Although significant challenges remain linked to the use of new technologies and open source surveys – particularly with regard to the digital divide – their potential seems particularly useful for local NGOs, both in allowing access to hard-to-reach areas and helping to counter state discourse. It is important to note, however, that participatory surveys depend on the existence of advanced digital infrastructure, which exists in Ukraine, but is not the case in many other ICC countries.
In short, what we see emerging in the international criminal justice ecology is a transnational and increasingly professionalized private industry, ready to collect evidence and prepare cases for prosecution, either under the universal jurisdiction, or, if time permits, before an international criminal court(s). This means that the growing wave of autocratization around the world is accompanied by significant changes in the actors and activities of civil society engagement with the ICC. These observable changes are driven both by technological advancements and, importantly, by opportunities arising from lack of jurisdiction and lack of state cooperation with the ICC. Diversifying civil society engagement with the ICC and international criminal justice in general – with investigative non-profit organizations, private technology companies and local NGOs focused on documentation and investigations instead than on advocacy – calls for further examination – particularly for what this all means for the ICC and for the pursuit of international criminal justice more broadly.
First, the diversification of civil society actors at the ICC reflects broader trends in the international criminal justice ecosystem. The ICC was originally designed by its creators to replace ad hoc judicial institutions that dealt with specific situations; for a time it represented the pinnacle of international criminal accountability. Today, this high position in the hierarchy of international criminal accountability is increasingly challenged by a proliferation of ad hoc, locally specific, and quasi-judicial “accountability” institutions. The “next generation” of UN accountability mechanisms for Syria, Myanmar and Daesh are mandated “to collect, collate, analyze and preserve evidence of international crimes… in accordance with criminal justice standards, and to render these evidence available for national or international prosecution” (D’Alessandra et al 2021).
In response to the large-scale Russian invasion of Ukraine, the EU, together with EuroJust, has also significantly stepped up its collection, processing and storage of evidence – for example through the International Center for the Prosecution of Crime of aggression against Ukraine – in anticipation of future domestic or legal proceedings. This “reorientation of stakeholders”, described as a “turning point in accountability” in the international criminal justice ecosystem, is accompanied by an increasing recourse to universal jurisdiction by national authorities when prosecuting international crimes. , such as Daesh crimes committed in Syria by Syrians. nationals but prosecuted in Germany. In other words, there has been a notable fragmentation and decentralization of international criminal justice, in which the ICC is increasingly mentioned and presents itself as a “capacity builder”, arguably abandoning its hegemonic role in international criminal justice. once considered having.
Second, this fragmentation of international criminal justice can make the investigation and prosecution of international crimes more effective since trials can take place under universal jurisdiction in third countries. On the other hand, one might wonder what the future holds for the ICC, given that it does not have a monopoly on international criminal responsibility and its institutional structure renders it powerless against the power of the State, especially in the power of large states. The emergence of new actors and the professionalization of civil society actors who document international crimes “increasingly prove that in the new ecosystem of international criminal justice, institutions dependent on the UN remain on the periphery of justice initiatives. accountability, as national jurisdictions emerge as key avenues for accountability.” (Aksamitowska 2021). Furthermore, it is questionable whether this development of accountability actually produces more “justice” for local populations and civil society on whose behalf international justice is (usually) sought. Indeed, we may see the expansion of a kind of “donor justice” and a more articulate politicization of the goals of international criminal prosecutions. Rather than claiming universality, it could increasingly give voice to a liberal monologue in an increasingly autocratic world.
Further reading on international electronic relations