The International Criminal Court (ICC) is in trouble. For analysts and observers of the Court, one problem seems to lead to the next, so that the field of international criminal justice is described as a ‘permanent crisis’. After the Court’s brief ‘renewal’ due to its rapid response to Russia’s full-scale invasion of Ukraine in 2022, in recent events, its investigation into the Palestinian situation has led to further politicization and backlash in states against its mission, including this one. -called liberal democracies like Israel and the US.
At the same time, the liberal international order is facing challenges of its own. Dictatorship is on the rise, with 70 percent of the world’s population living under it, meaning that the level of democracy has returned to 1989 levels; the liberal democratic progress of the past 30 years has come to an end. Without examining what this means for prospects for peace or the escalation of violence, it raises questions about what an increasingly authoritarian world might mean for the future of international criminal justice, given that the ICC is entirely dependent on state cooperation to carry out its work. For example, in order to effectively investigate international crimes, the Court needs access to the places and communities of victims and witnesses, including (state) security provisions for its staff. Since the Court does not have its own police force, it also depends on the states to enforce arrests. However, as we know, state cooperation with the ICC is uneven and variable, at best. So, the important question remains non-state actors he can fill at least some of the gaps resulting from state support and cooperation with the Court. In the remainder of this piece, some of the key issues related to the past and present role of civil society in the pursuit of international criminal justice are discussed, based on a recent article published in. Review of International Criminal Law.
Much of the early scholarship on civil society engagement with the ICC praised the broad participation of NGOs in the 1998 Rome Conference at which the ICC was established, celebrating the ICC as a ‘success of global civil society’—a court ‘of the people,’ by the people’. After the ICC became operational in 2002, international human rights organizations have been involved in almost every aspect of the Court’s work, from agenda-setting disputes, to documenting and investigating crimes, to communicating with victims and victimized communities, to lobbying states for political and financial support. the Court, advocating for the ratification and implementation of ICC law in domestic justice systems, the creation of international justice capacity—the list is endless. International human rights NGOs have been important advocates of international criminal justice just as they have been part of the Court’s daily operations.
In recent years, more and more new ‘types’ of NGOs and civil society actors have emerged in the field of international criminal justice, as can be seen from the ongoing development of international criminal accountability efforts in Syria and Ukraine.
In response to the ICC’s lack of jurisdiction over the conflict in Syria, a variety of civil society actors, including international organizations and local NGOs, have worked to collect and preserve information, and document and formulate cases, in seeking accountability for international crimes. what is happening in Syria, including the regime itself. These include local NGOs such as the Syrian Network for Human Rights and documentary actors such as the Violations Documentation Center established by Syrians as soon as the uprising began, as well as international organizations such as Bellingcat, the UN Commission for Syria, International, Ipartial, and the -Independent Mechanism (IIIM), and the Commission on International Justice and Ethics (CIJA).
While in the past local and international NGOs have been involved in drafting international criminal cases, including the ICTY and ICTR, there is something qualitatively new about actors like CIJA working in the field of international justice. It attests to the increasing privatization of international criminal justice and ‘abandoning the practice of conducting international criminal investigations under the framework of public institutions’. Because Syria is not a member of the ICC (and a closed democracy) and the Security Council’s referral of the situation to the ICC is blocked by China and Russia, the regulatory gap in international criminal justice has paved the way for this type of crime. ‘business justice’. However, the privatization of international criminal justice may raise some accountability issues. It is worth noting that these models depend on the ‘local context’ within the dictatorship, that is, the opposition and local NGOs.
Russia’s full-scale invasion of Ukraine sparked an unprecedented (western) international campaign of war crimes investigations and prosecutions. A number of local and international NGOs are now involved in collecting, documenting, investigating and preparing a large amount of data on war crimes for prosecution in various courts, law enforcement agencies, and jurisdictions. In addition to a number of international organizations, including the ICC and Eurojust, as well as contributions from western states, domestic NGOs in Ukraine are heavily involved in documenting the war crimes of Russia. Documentation of war crimes is also being done by many Ukrainians, the prosecutor’s office of Ukraine has established a homepage where citizens can register and document war crimes.
This ‘democratization’ of domestic NGOs and civil society actors involved in documenting international crimes is driven by digital technologies and the availability of digital evidence as open source information. Although significant challenges remain in the use of new technologies and open source research—including especially regarding the digital divide—their potential appears to be especially useful for local NGOs, both by allowing access to hard-to-reach areas and facilitating counter-narratives. Importantly, however, crowdsourcing research depends on having a developed digital infrastructure, which is present in Ukraine, but not in many other ICC countries.
In short, what we see emerging within the ecology of international criminal justice is a growing private industry that is progressive and international that is ready to gather evidence and prepare prosecution cases, either under international jurisdiction or, if time allows, international criminal courts. This means that the growing wave of human sovereignty around the world is accompanied by a significant change in the players and the functions of public relations and the ICC. These virtual changes are both driven by technological progress, and, more importantly, the opportunities that arise due to the lack of power and the lack of cooperation of the state and the ICC. The diversity of public engagement with the ICC and international criminal justice more broadly—with non-profit organizations, private technology companies, and local NGOs focusing on documentation and investigation rather than representation, requires further consideration—not least what this all means for the ICC and the pursuit of international criminal justice. in detail.
First, the diversity of public 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 while, it represented the ultimate goal of international criminal accountability. Today, this high position in the scale of international criminal accountability is being challenged by the proliferation of direct, local, and quasi-judicial ‘accountability’ institutions. The ‘new generation’ of the UN’s accountability mechanisms for Syria, Myanmar and Daesh have been given the mandate to ‘collect, collate, analyze and preserve evidence of international crimes … according to the standards of criminal justice, and to make this evidence available to domestic or international prosecutions’ (D’Alessandra et al 2021).
In response to Russia’s widespread aggression against Ukraine, the EU, and EuroJust, have also significantly increased their collection, processing, and storage of evidence—for example through the International Center for the Prosecution of the Crime of Aggression against Ukraine— in anticipation of future domestic or official prosecutions. . This ‘reorientation of actors’, called ‘opportunity for accountability’ in the international criminal justice system, is accompanied by the growing use of international powers by domestic authorities when prosecuting international crimes, such as Daesh crimes committed in Syria by Syria. foreigners but were persecuted in Germany. In other words, there has been a visible split and a division of positions in international criminal justice, where the ICC is increasingly referred to and calls itself a ‘builder of power’, without a doubt giving up the major role in international criminal justice, which it was once thought to be.
Second, this division of international criminal justice would make the investigation and prosecution of international crimes more efficient as trials could be held under universal jurisdiction in third countries. On the other hand, one might ask what the future holds for the ICC at all, given that it has no accountability for international crimes, and its institutional structure makes it impotent in the face of state powers, especially superpowers. The emergence of new actors and the professionalization of civil society actors documenting international crimes, ‘increasingly prove that in the new system of international criminal justice, institutions dependent on the unsc remain on the margins of accountability systems, while domestic powers emerge as important mechanisms of accountability’ (Aksamitowska 2021). Furthermore, questions may be asked whether this development of accountability really produces more ‘justice’ for the local people and civil society on whose behalf international justice (generally) is sought. Indeed, we may see an increase in the form of ‘donor justice’ and a more political interpretation of the purposes of international criminal prosecution. Rather than seeking universality, it may continue to give voice to a liberal monologue in a growing democratic world.
Further Studies in E-International Relations
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