The International Criminal Court, preliminary examinations, and the Security Council: Kill or cure?

• DOI: https://doi.org/10.13169/jglobfaul.8.2.0172
• Pages: 172-185
• Published date: 01 October 2021
• Date: 01 October 2021
• Author: Natasha Kuhrt,Rachel Kerr

The International Criminal Court, preliminary examinations, and the Security Council: Kill or cure?

Natasha Kuhrt and Rachel Kerr

172

The International Criminal Court, preliminary

examinations, and the Security Council: Kill or cure?

Natasha Kuhrt1 and Rachel Kerr2

Abstract

In March 2020, the Appeals Chamber of the International Criminal Court (ICC)

authorized the Prosecutor to open an investigation into the situation in the Islamic

Republic of Afghanistan. This was a significant milestone for the ICC, ending a lengthy and

contentious preliminary examination (PE) and opening the possibility of investigation

by the ICC of alleged crimes committed by US citizens. By December 2020, four other

preliminary examinations were concluded, two of them (Ukraine, UK-Iraq) potentially

involving investigation into the conduct of nationals of permanent members of the

Security Council (Russia and the UK) and the third (Palestine) involving a close ally of

the United States (Israel). While the conclusion of the examinations into the situations

in Ukraine, Palestine, and Afghanistan resulted in requests to open full investigations,

the outcome in the situation in Iraq-UK was to close the examination with no further

steps. This article discusses the situations in UK-Iraq and Ukraine, setting the actions of

the ICC Prosecutor and the responses of the P5 members involved in the context of the

international and domestic politics of international justice. We argue that, while PEs

were and remain highly significant for the future of the Court, they are not the cure to

its current malaise.

In July 2022, over two decades after the adoption of the Rome Statute, in July 1998, and

almost 20 years since the International Criminal Court (ICC) started operations, there was a

tangible sense that it was in trouble. It may be too soon to sound the death-knell, but there

have been warning signs since at least 2015 that the ICC was in crisis (Mutua, 2015). The Court

has a lackluster record, with only three convictions for core crimes, and two acquittals. It is

reasonable to ask whether these five judgements represent value for money at a cost of over

$1.5 billion and counting. Even for supporters of the court, there was a widespread sense that

things needed to change.

Meanwhile the court faces significant, and growing, political challenges. Some of

this emanated from the African Union, which perceived the ICC as harboring an anti-

African bias and even as an instrument of neo-imperialist oppression, and called for mass

withdrawals (BBC News, 2017). This has not resulted in the avalanche that was predicted,

but it remains a stain on the credibility of the Court, especially since the anti-African bias

appeared to be confirmed by the fact that, until 2016, all situations under investigation by

the Court were in Africa. Added to this, the Court cannot function without state coopera-

tion, so states remain in a powerful position to influence outcomes by providing or with-

holding such cooperation, as Kenya amply demonstrated.3

Partly to offset the anti-African critique, the Court made much of its preliminary

examinations (PEs), the majority of which, unlike the full-blown investigations, were into

situations not located in Africa. But this strategy was not without considerable risk. Indeed,

the Court attracted the ire of the United States (US) with the prospect of investigations in

Afghanistan potentially involving US citizens, and investigations in Palestine involving

Israeli citizens. In 2019, with Donald Trump as US President and John Bolton as his National