The EU and the ICC : Wedding bells ?

EU - ICC relations

Six years after the entering into force of the Rome Statute and the International Criminal Court (ICC), the EU and the ICC could not have a better relationship. The practicalities of the partnership are beneficiary for both. However, the two organisations may need to be more independent in their outlook towards international justice. They should look at renewing their own sense of committing themselves towards international criminal law independent from each other, but at the same time giving even greater sense to the relationship.

History has seen the Continent being constructed, deconstructed and reconstructed through war and peace. But the end of the Second World War marked a new beginning for Europe, one that called for integration of its member states and of the need to push forward the rule of law. Europe used these methods to end a history full of mass atrocities, epitomised by the Holocaust of the Second World War.

In 1998 states came together to write out the principle of international justice to persecute those responsible for crimes against humanity. Leaders would no longer be free from committing purgeries against its own people. The Rome Statute became the founding text against international criminal acts. By 2002, the Rome Statute came into force and the ICC commenced its path into a renewed sense of international justice, independent from political motivations and dependent on the rule of law.

Rwanda : never again
Victims of the genocide in Rwanda

Europe and the ICC are natural allies. A recent EU publication relating to this relationship states this obvious bond : “The European Union is a staunch supporter of the International Criminal Court (ICC).” The continual meetings that the President of the Assembly of the ICC, Phillipe Kirsch, and Javier Solana have during a year is a great example of this special relationship.

Love is in the air

The European Union and the International Criminal Court - November 2007
Document on the current status of relations between the EU and the ICC.

The EU has backed the court in almost every aspect. Common Positions and Joint Actions towards the ICC on behalf of the EU ties in European member states to the organisation. The EU has adopted several decisions in the area of Justice, Freedom and Security so that member states can coordinate their investigations and prosecutions in the areas that are relevant to crimes under the Rome Statute. Both organisations have encouraged several diplomatic démarches to encourage the adoption of the Rome Statute around the world. The Union has given the Court €19.5 million in aid and it has inserted clauses for the adoption of the Statute in its Stabilisation and Association Agreements and in its trade agreements with third countries. It was one of the key organizations to refer the Darfur situation to the Security Council and for the adoption of a resolution. The EU has also given ample help in cooperation and assistance to coordinate the effectiveness of the ICC as in the Democratic Republic of Congo and Darfur. The EU has also created ICC working groups inside the Union, such as national technical experts and diplomatic contacts between member states (COJUR ICC) in the Council and ‘EP friends of the ICC’ in the European Parliament.

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It is happening again in Darfur

Due to the harsh nature of the international arena it is hard for the ICC to be able to be the player it wants, and it ought, to be. Darfur is a case that should be taken as an example.

The ICC could not ask for a better friend, and the EU could not ask for a better partner. From all the initiatives that they have taken, it seems hard to imagine that the relationship will ever break down. The willingness to globally support international justice through the ICC is a bold initiative that supports the EU’s effectiveness as a diplomatic actor. In this way, the EU has signed on to an objective where it can fully use its strength. The EU has risen as a great actor in international justice due to the influence of both its twenty-seven member states and the economic conditionalities that it sets. At the UN, the member states have been able to put the ICC as an important diplomatic tool to engage in areas of conflict where crimes under the Rome Statute have, or are being, committed. Here, member states of the EU have also made, and make, references in the General Assembly to make use of the ICC. Also, in the Assembly of State Parties, the body inside the ICC equivalent to the General Assembly of the UN, the EU plays a pivotal role as the largest player.

The EU can be seen to indirectly be the public diplomatic arm of the ICC. We should not undermine, however, the role that the President of the Assembly plays in this role. He travels often (maybe too often) in order to best represent the ICC. The President has tried to create better global cooperation between nations of the world and the ICC - even if the recent Assembly of State Parties have agreed on the outreach strategy that the ICC is now engaging in. But he is not the only one who does this. Luis Moreno Ocampo, the Prosecutor of the ICC, does so as well and the ICC has been more progressive in initiating a communication strategy towards this end, too. But this is not enough. Here the EU has had to play the international voice for the ICC. Due to the legal implications that common positions and joint actions impose on the member states of the EU, these are the best instruments that the ICC has in order to promote and fight the battles for the Court.

The EU has a priority in using the ICC as an instrument to make its presence felt as a player in international justice. In fact, this is an intelligent and useful method for both organizations. The ICC is an institution that needs as much support as possible. Due to the harsh nature of the international arena it is hard for the ICC to be able to be the player it wants and it ought to be. Darfur is a case that should be taken as an example. But the characteristics of the Court also require the full cooperation of member states for it to be able to detain and prosecute those who committed crimes under ICC jurisdiction. The lack of US support undermines the effectiveness that the ICC could have. Other states see this as a weakness and do not take ICC as seriously and believe that they can undermine the court. The EU is a necessary actor for the ICC.

Renewing their vows

The dependence of the ICC on the EU, however, is a doubled edged knife for both organizations. The reliance of the ICC on the EU will not let the court be able to develop the ability to fight its own battles. The ICC needs to be able to show its teeth when facing increased non-cooperation from states. It already has various ways in doing so apart from using the EU. Non-Governmental Organisations, such as the Coalition for the International Criminal Court (CICC), an umbrella organization to all NGO’s supportive of the ICC, can name and shame in the international public eye. But the UN can also play a heavy role inside this scheme. The cooperation agreements that it has signed with the UN makes the ICC an important pillar for both parties. But the ICC will need to start to coordinate this through better public diplomatic efforts through professionals set up to do so, not judges.

The EU, on the other hand, needs to keep up its support for the institution. The initiatives that have been bought forward are helpful and fruitful. But there needs to be a better strategy of keeping the ICC more independent as well as creating an enhanced approach for better means on implementing international justice. Independence to create its own approach is needed. The EU cannot fight every battle for the ICC but it can assist it. The ICC needs to make its mark be shown as it is already doing in DRC, Sudan, and Uganda. Even though the EU should keep its distance, the Union should also reinforce its efforts in universalising the Rome Statute through other means.

Let Us Beat Our Swords into Ploughshares
A sculpture given to the UN by the USSR in 1959 putting man’s desire to put an end to war, and to convert the means of destruction into creative tools for the benefit of mankind.

The EU should also focus on the need to reinforce justice on the ground. For effective international justice it is not only worth creating a top-down approach, but also a bottom-up approach. The EU must remember that the Rome Statute is a treaty that calls for complementarity and not just universal jurisdiction. Better local governance is a must for effective global international justice. The EU needs to help out more on developing local justice authorities so that it can best combat crimes under the Rome Statute. This can be made through efforts within the EU as well as with the UN in reinforcing the rule of law, both through courts and local authorities.

Both organisations are necessary for a successful partnership and effective international justice. The objective for both actors makes this relationship deeply interdependent. It is great to support ideas and philosophies. But for a more effective partnership both institutions need to look at the bigger picture and develop internally. The ICC needs greater diplomatic clout by creating a public diplomatic sphere, whereas the EU needs to look at more local solutions in global justice. By reforming internally both actors can increase their overall scope of action internationally. That would be a start to ending the scourge of war on a global scale.

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Michael Bourguignon

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