Where to from here? The end of faith
Posted: Mon Feb 17, 2025 9:29 am
Afghanistan is exactly the kind of situations for which the ICC was created; it was the Court’s legitimacy test case. If the ICC had only been capable of approaching this situation in the same way as it would any other situation not overshadowed by the US’ involvement, it would have already vindicated itself and, in a symbolic yet important sense, ‘succeeded’. By not even trying, it fell victim to its own misguided politics, giving its self-professed foes a reason to celebrate (see reactions by the White House, Bolton, and Netanyahu). The ICC support community should muster the courage to acknowledge that in the moment of truth the Court did not rise to the occasion.
This should trigger a much-needed candid conversation on its independence as a judicial institution and the integrity of the Rome Statute system as whole. Regardless, the damage has been done and legitimacy costs will be high. Repairing that damage might take decades and the Afghanistan decision will come to haunt the Court in other situations. It will also have broader implications for the project the ICC symbolizes. The ruling will not only fuel the general public’s scepticism about international criminal justice but possibly also lead states in the Global South, civil society actors, and individuals working on international criminal and transitional justice issues to reappraise their commitment to, and any future engagement with, the project.
“Is this the end of the ICC as we know it?” and “Is it worth saving?”, are just employment database some of the questions in the wake of the Afghanistan ruling. The institution will most definitely stay on. It has shown its occasional utility to the powers-that-be and also the resilience and flexibility, that are requisite for survival. But if one speaks of the ICC as the Court meant to deliver ‘justice for all’ and ‘speak truth to power’—the idea(l) which has held public imagination at least since 1998—it has proven unsustainable and disembodied from the actual institution.
Before the ICC supporters reel from their disappointment sufficiently to start brainstorming how the Court could be restored back to ‘factory settings’, they ought to linger for a moment to fully comprehend (and mourn?) what has happened. It is not possible to explain the Afghanistan non-investigation away as a one-off misstep, part of the maturing process, or a lesson to learn for the future – and move on as if nothing happened. The PTC decision has highlighted the (inherent) limits for the ICC as an institution occupying a certain niche in the global power politics, as an actor which—at least for now—is not only structurally unable to challenge major powers but also unwilling to just displease them. This amplifies the critical voices which question the emancipatory ambitions and impacts of international criminal justice. Those critiques ring truer and resonate more strongly than ever before.
The ICC will get further chances to redeem itself, the next serious test being the situation in Palestine. Nevertheless, the ICC’s historiographers will likely be using the Afghanistan decision as a sort of marker between the two eras. The former is the era of inextricable faith in an independent and impartial court doing its best to dispense justice, often doing so in impossible circumstances and (understandably) failing. The latter is the era when such view becomes hard to maintain even for believers who have supported the institution all along and interpreted all doubts in its favour.
This should trigger a much-needed candid conversation on its independence as a judicial institution and the integrity of the Rome Statute system as whole. Regardless, the damage has been done and legitimacy costs will be high. Repairing that damage might take decades and the Afghanistan decision will come to haunt the Court in other situations. It will also have broader implications for the project the ICC symbolizes. The ruling will not only fuel the general public’s scepticism about international criminal justice but possibly also lead states in the Global South, civil society actors, and individuals working on international criminal and transitional justice issues to reappraise their commitment to, and any future engagement with, the project.
“Is this the end of the ICC as we know it?” and “Is it worth saving?”, are just employment database some of the questions in the wake of the Afghanistan ruling. The institution will most definitely stay on. It has shown its occasional utility to the powers-that-be and also the resilience and flexibility, that are requisite for survival. But if one speaks of the ICC as the Court meant to deliver ‘justice for all’ and ‘speak truth to power’—the idea(l) which has held public imagination at least since 1998—it has proven unsustainable and disembodied from the actual institution.
Before the ICC supporters reel from their disappointment sufficiently to start brainstorming how the Court could be restored back to ‘factory settings’, they ought to linger for a moment to fully comprehend (and mourn?) what has happened. It is not possible to explain the Afghanistan non-investigation away as a one-off misstep, part of the maturing process, or a lesson to learn for the future – and move on as if nothing happened. The PTC decision has highlighted the (inherent) limits for the ICC as an institution occupying a certain niche in the global power politics, as an actor which—at least for now—is not only structurally unable to challenge major powers but also unwilling to just displease them. This amplifies the critical voices which question the emancipatory ambitions and impacts of international criminal justice. Those critiques ring truer and resonate more strongly than ever before.
The ICC will get further chances to redeem itself, the next serious test being the situation in Palestine. Nevertheless, the ICC’s historiographers will likely be using the Afghanistan decision as a sort of marker between the two eras. The former is the era of inextricable faith in an independent and impartial court doing its best to dispense justice, often doing so in impossible circumstances and (understandably) failing. The latter is the era when such view becomes hard to maintain even for believers who have supported the institution all along and interpreted all doubts in its favour.