Global Brief Magazine – http://globalbrief.ca – recently posed the following question to several leading experts, “What will be the impact of international human rights prosecutions by 2022?” Here follows my response:
Because the question refers to ‘prosecutions,’ and not litigation, it presumably targets the worst sort of human rights abuses – those that give rise to individual criminal responsibility, such as genocide, war crimes, crimes against humanity and torture. These are justiciable in the ICC, but subject to severe jurisdictional and procedural limitations. They are also justiciable in national courts either under universal jurisdiction or as an element of post-conflict justice, and in international or mixed criminal courts such as the International Criminal Tribunals for the former Yugoslavia and Rwanda.
By 2022, we can assume that there will no longer be any mixed or international criminal courts, as they will have completed their work. There appears to be very little enthusiasm for establishing new ones. At the same time, the Rome Statute will have achieved nearly universal ratification if the current rate of state adherences (six to eight per year) remains steady. That would bring the total number of countries adhering to the Statute to between 175 and 183, or nearly every country in the world. At present, 120 states are parties, but many powerful and populous states – including three of the five Permanent Members of the Security Council – China, Russia and the US – remain outside of the Rome Statute system. Politically, it will become increasingly difficult for states to remain outside of the Rome Statute system as the number of ratifications continues to increase. Additionally, in 2017, the ICC will likely include within its jurisdiction the crime of aggression, although ratifications of the Kampala amendments introducing that crime have been slow. It is quite possible that states that have thus far adopted a ‘wait and see’ approach to the Statute, such as India, may join once aggression is part of the Court’s Statute.
It is therefore likely that the effect and reach of the Statute – directly through international prosecutions, and indirectly in catalyzing and supporting domestic prosecutions – will continue to grow. It will become increasingly difficult for states to offer exile or otherwise shield those accused by the Court, and the Court should, as a consequence, have increased success in implementing its arrest warrants. This may have an important deterrent effect on the commission of atrocity crimes, as government leaders (and rebels) internalize the idea that there will be some degree of accountability for their actions. It is likely that the kind of regional anti-ICC politics now evidenced by African nations will diminish as the Statute moves closer to the goal of universal ratification, and as accused from countries outside of Africa are charged by the ICC Prosecutor. For its part, the US will come under increased pressure to ratify the Statute and, over time, the current domestic objections to ratification should dissipate. Entry of the US into the Rome Statute system – if it can be achieved by 2022 – will evidently strengthen the Court considerably as well.
Leila Nadya Sadat
Henry H. Oberschelp Professor of Law and Director, Whitney R. Harris World Law Institute
Washington University School of Law