8 No. 70 JUSTICE requested the Prosecutor to become active and, in both situations, the Prosecutor only went after the armed opponents – both times fulfilling the hope of the government in place. In 2005, China, Russia, and the United States all refrained from vetoing a resolution by which the UN Security Council would refer atrocities allegedly committed in the Sudanese province of Darfur to the ICC. This was tantamount to the implicit recognition of the ICC’s existence by the three permanent Council members that were not Parties to the Statute. III. Storm Clouds The Security Council’s Sudan mandate marked the peak of the ICC’s meteoric rise in international affairs. The Sudan referral, however, sowed the seeds of the end of the honeymoon. Importantly, the central suspicion in the Sudan situation was not about crimes committed by rebellious non-state actors. Rather, and for the first time, the Court’s core mission was at stake: the supra-national investigation into allegedly State-sponsored criminality. In 2009, the ICC issued an arrest warrant against the sitting Head of Sudan, Omar Hassan Ahmad al-Bashir. Shortly afterwards, proceedings commenced against the thenacting President of Kenya, Uhuru Kenyatta. Quite a few African governments, having been court-friendly until that moment, now chose to attack the ICC and to denounce it as a neocolonial instrument. Sudan categorically refused to cooperate with the Court, and in Kenya, the Court’s work met with grave interference. In the absence of sufficient evidence, the proceedings against Kenyatta had to be terminated. Al-Bashir, who is now in custody in Sudan, was able to freely enter and leave several States that were parties to the ICC Statute, although those States were under a legal duty to arrest al-Bashir and to surrender him to The Hague. Despite this, the ICC received no backing from the UN Security Council. These heavy setbacks brought the Court’s structural vulnerability to light for the world to see. The ICC’s core ambition is bold indeed: to act in the interest of the international community against state organs if they are under suspicion of having committed international crimes. When it comes to implementing this benign mandate, however, the Court looks like a small supra-national island emerging from a vast and deep ocean of nations. In more prosaic terms, to carry out its vertical mandate, the ICC, in the absence of vertical enforcement power, must operate within an essentially horizontal structure where the principle of State consent remains its key currency. Antonio Cassese, first President of the International Tribunal for the former Yugoslavia, called his tribunal “a giant without limbs.” This metaphor is even more appropriate with respect to the ICC. IV. Tempest In 2012, the second Prosecutor of the Court, Fatou Bensouda, took office. During her tenure, the situation worsened for the Court. One main reason for this is that Prosecutor Bensouda went beyond her predecessor’s course of action in one crucial respect: on a number of occasions, and each time with judicial concurrence, she decided to exercise the Court’s jurisdiction over nationals of non-States Parties. In the Situation of Afghanistan, Bensouda opened an investigation which included allegations of war crimes against soldiers and secret service members of the United States. In the Situation of Palestine, apart from allegations in connection with the 2014 Gaza war, the Prosecutor decided to investigate Israeli settlements in occupied territories which are widely considered to be contrary to international law. At the time, Israel’s Prime Minister Benjamin Netanyahu spoke of “pure antisemitism.” The Trump administration went beyond strong rhetoric and placed the ICC at the same level as transnational terrorist organizations. On that basis, Prosecutor Bensouda was subjected to financial sanctions. The Situation of Palestine provides a useful illustration of the inevitability by which the Court comes under political fire. The legal issue, which is central to the Court’s jurisdiction, is extremely complex and controversial – namely whether Palestine is a State, be it generally or at least for the specific purposes of the Rome Statute’s jurisdictional regime. One can imagine that the Court would have been confronted with allegations of “neocolonialism” had it reached an opposite decision. During that difficult time, the Court’s situation was not aided by the fact that much of the support which States Parties held for the Court remained rather lukewarm. Take Germany, my own country, by way of example. When faced with complex questions of jurisdiction, Germany usually accepts that the final word (the “KompetenzKompetenz”) lies with the competent international judges. In the Situation of Palestine, however, the then-German Foreign Minister Heiko Maas left it with the observation that Germany disagrees with the Pre-Trial Chamber’s decision. Also, since 2015, only Palestine, El Salvador, and Kiribati acceded to the ICC Statute, while Burundi and the Philippines have withdrawn. For a while, the number of States Parties to the ICC Statute had not gone beyond 123. Without doubt, the imperfect cooperation by States, the complexity of international criminal proceedings, and the novelty of significant parts of the
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