When Hashim Thaçi, president of Kosovo, learned last year of the arrest warrant against him for crimes against humanity and war crimes, he resigned from office and surrendered the next day. Even more striking, Thaçi had presided, however grudgingly, over the establishment of the very tribunal that indicted him and several of his wartime allies, knowing all along that the mandate of the Kosovo Specialist Chambers would lead it to focus on crimes for which he and his allies were allegedly responsible.
Few of the governments facing an investigation by the International Criminal Court (ICC), have shown a similar degree of cooperation against self-interest. In multiple situations, governments have persistently refused to carry out the ICC’s arrest warrants or otherwise cooperate with its investigations. Sudan (a non-state party) ignored the court’s arrest warrants against some of its top officials for more than a decade. Kenya persistently refused to provide requested evidence and failed to hand over three of its nationals charged with witness tampering. Côte d’Ivoire never transferred the indicted wife of its ex-president; and Egypt (also a non-state party) sheltered a fugitive ex-official of Libya’s fallen Gaddafi regime on its territory until he died of natural causes.
Comparing the ICC’s frustrations in securing cooperation and the early success of Kosovo’s special court may seem unfair. Kosovo’s unusual status and history have left its leaders extremely dependent on international partners who enjoy broad domestic credibility. This gives Kosovo’s main international partners leverage to a degree unlikely to be replicated in many other places. For example, the United States and European officials have signaled that Kosovo’s international support and its integration into Europe depended on creating and cooperating with the special court. For the ICC, which has investigations or preliminary examinations currently open in 18 different situations, the need to obtain cooperation spans a daunting number of potentially recalcitrant states.
For each state being asked to cooperate with the ICC (requested state), there may not be a partner that has strong political leverage over that state and will insist that it cooperate with the court. Without the advantage of direct bilateral leverage, states supportive of the ICC (third states) must find ways of working together to apply scrutiny and constructive pressure to the requested state, including through multilateral bodies.
A forthcoming Justice Initiative briefing paper, to be issued in January, will show that third states have failed to provide such support with consistency. Three primary bodies – the ICC’s Assembly of States Parties, the UN Security Council, and the Human Rights Council – have called for cooperation in only a few ICC situations. Other multilateral bodies, especially regional institutions such as the African Union, the European Union, and Organization of American States, also have a potential role in shaping decisions by requested states on whether to cooperate with the ICC, though they are beyond the focus of the upcoming paper.
More than any other multilateral body, the Assembly of States Parties (ASP) is responsible for securing state cooperation with the ICC’s investigations, though it has made relatively limited use of what powers it has. For example, in its resolutions, the ASP nearly never mentions specific investigations or calls for cooperation from specific states–even those the court has referred to the ASP for non-cooperation. Protracted litigation preceding such referrals has blunted their impact, as has the limited reaction of states and the ASP to the referrals.
The Security Council and Human Rights Council (HRC) have offered rhetorical and sometimes more tangible support to a number of ICC investigations, making dozens of statements noting the ICC’s role or work in a country; calling for states to cooperate with the ICC prosecutor or praising them for doing so; and even instructing an investigative mechanism on Myanmar to cooperate with the court. The Security Council’s expressions of support have focused mostly on the less-controversial ICC investigations that came at the request of a cooperative host government. The HRC, on the other hand, has expressed support for the ICC in a different set of situations, including several where key governments have been hostile to the court’s role. The UN General Assembly adopts an annual resolution focused on cross-cutting ICC issues but almost never speaks about the ICC’s actual investigations. Mere statements or calls for cooperation may not by themselves be a powerful tool. But as part of a broader effort to create a political context in which a requested state knows its actions will be scrutinized, and in which third states are prompted to take a position, pursuing greater expressions of multilateral support could be worthwhile.
Finally, some ICC investigations have emerged from situations of conflict in which the international community has provided peacekeeping forces. Those forces have sometimes had the authority to help requested states arrest or transfer an ICC fugitive, or to make such an arrest themselves. No such independent arrests have taken place, but in situations where host-country authorities are unable or reluctant to make arrests, supportive states and advocates should work to preserve or build political support for assistance or action by peacekeepers. The Security Council has shown no signs it is likely to use its coercive sanctions powers to promote a requested state’s cooperation.
The new briefing paper will provide significant recommendations to address the above challenges. Without law enforcement capacity, the ICC relies fully on states, inter-governmental organizations, and other actors to enforce its mandate. The range of areas in which the ICC requires cooperation is broad and spans multiple situations with varying complex political contexts. State party action through multilateral institutions can help build expressions of political support that maintain a level of sustained backing and interest in the ICC. Over time, this could provide the court with increased cooperation and greater protection from political attacks.
As the 2021 ASP draws to a close and states look ahead at 2022 Independent Expert Review discussions on cooperation, the briefing paper’s recommendations will inform discussions about how states parties can strengthen the ICC.