The “interests” of the ICC and the Afghanistan Decision
Posted: Mon Feb 17, 2025 9:20 am
More than anything else, I believe that this turn to practicality helps to explain the decision of ICC Judges not to approve an investigation into Afghanistan as well as the support that observers lent to it. It was not about victims or justice. It wasn’t about “interests of justice” either. It wasn’t even – and this bears stressing – about whether the situation in Afghanistan met the threshold required to open an investigation.
The decision was about what outcome would be best for the International Criminal Court. What was best, according to this logic, was to avoid an investigation into a situation where cooperation wouldn’t be forthcoming and which would lead to additional scorn from Washington. In its justification, it was all about saving the ICC from its aspirational self. An investigation was deemed too difficult, so it wasn’t even worth trying. Three robed officials decided that delivering justice didn’t look likely, so it wasn’t worth aspiring to.
Of course, the decision invariably affirms American exceptionalism, inspires governments wary of the ICC to violently oppose the institution, leaves victims disappointed, and stretches the meanings of pseudo-legal terms such as the “interests of justice”. That was all worth it as the presumably calculated cost of protecting the interests of the Court.
But the biggest drawback, in my view, was to the idea of the ICC as an aspirational institution. The Afghanistan decision fundamentally undermines the idea of the ICC as a court willing to do things that were unexpected of it, a court that defied the conventional wisdom that great powers enjoy impunity every time just because they are great powers; a court which understood that it means something to show up to the fight, even if you don’t or can’t ‘win’.
Balancing Aspiration and Practicality
Let it be clear: it did not have to be this way. Imagine, for example, that the Judges ruled that the investigation should be opened but – as they did in their decision – spoke to the difficulties that lied ahead with regards to successful investigations and the enforcement of any subsequent warrants. Imagine if they said that they were concerned employment database about the Court’s chances to deliver, but that in the interests of justice it would be implausible to abandon the thousands of victims who asked for an ICC investigation. Imagine if they opened the investigation and worked to manage expectations of what justice would – and would not – be likely to follow. Just imagine a Court that spoke honestly about the prospects of accountability without stripping its constituencies of a reason to aspire.
None of this is to plead for a return to an era of unrealistic expectations and irresponsible rhetoric regarding what the ICC can achieve. The increased sobriety of claims made by senior Court staff and proponents of international criminal justice is welcome. Additionally, and as I have written elsewhere, the ICC should take its own interests into account. But that need not come at the cost of also being aspirational. This requires us to think through what the ICC is and wants to be, accepting that it is both an international organization that can affect global politics and a criminal court that can, at least sometimes, bring perpetrators of international crimes to justice. It also requires us to think about how the Court can deliver a regular stream of defendants to trial while working to achieve meaningful accountability for communities where justice is otherwise not on offer and holding those who historically enjoy impunity to account. And here’s the key: it should do this even if it doesn’t work, but in the hopes that it does. To quote hockey great Wayne Gretzky: “you miss 100% of the shots you don’t take.”
The decision was about what outcome would be best for the International Criminal Court. What was best, according to this logic, was to avoid an investigation into a situation where cooperation wouldn’t be forthcoming and which would lead to additional scorn from Washington. In its justification, it was all about saving the ICC from its aspirational self. An investigation was deemed too difficult, so it wasn’t even worth trying. Three robed officials decided that delivering justice didn’t look likely, so it wasn’t worth aspiring to.
Of course, the decision invariably affirms American exceptionalism, inspires governments wary of the ICC to violently oppose the institution, leaves victims disappointed, and stretches the meanings of pseudo-legal terms such as the “interests of justice”. That was all worth it as the presumably calculated cost of protecting the interests of the Court.
But the biggest drawback, in my view, was to the idea of the ICC as an aspirational institution. The Afghanistan decision fundamentally undermines the idea of the ICC as a court willing to do things that were unexpected of it, a court that defied the conventional wisdom that great powers enjoy impunity every time just because they are great powers; a court which understood that it means something to show up to the fight, even if you don’t or can’t ‘win’.
Balancing Aspiration and Practicality
Let it be clear: it did not have to be this way. Imagine, for example, that the Judges ruled that the investigation should be opened but – as they did in their decision – spoke to the difficulties that lied ahead with regards to successful investigations and the enforcement of any subsequent warrants. Imagine if they said that they were concerned employment database about the Court’s chances to deliver, but that in the interests of justice it would be implausible to abandon the thousands of victims who asked for an ICC investigation. Imagine if they opened the investigation and worked to manage expectations of what justice would – and would not – be likely to follow. Just imagine a Court that spoke honestly about the prospects of accountability without stripping its constituencies of a reason to aspire.
None of this is to plead for a return to an era of unrealistic expectations and irresponsible rhetoric regarding what the ICC can achieve. The increased sobriety of claims made by senior Court staff and proponents of international criminal justice is welcome. Additionally, and as I have written elsewhere, the ICC should take its own interests into account. But that need not come at the cost of also being aspirational. This requires us to think through what the ICC is and wants to be, accepting that it is both an international organization that can affect global politics and a criminal court that can, at least sometimes, bring perpetrators of international crimes to justice. It also requires us to think about how the Court can deliver a regular stream of defendants to trial while working to achieve meaningful accountability for communities where justice is otherwise not on offer and holding those who historically enjoy impunity to account. And here’s the key: it should do this even if it doesn’t work, but in the hopes that it does. To quote hockey great Wayne Gretzky: “you miss 100% of the shots you don’t take.”