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Any good reasons to cry wolf? Understanding and strengthening independence and accountability of the International Criminal Court in a political world

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In probably the most emblematic incident of its kind with regard to the work of the ICC so far the African Union Assembly decided in a resolution in early July 2009 that African Union member states should not implement the arrest warrant issued by the International Criminal Court (ICC) following the formal indictment of Sudanese President Hassan Al Bashir in March 2009. Underlying this decision, which since then many African countries in fact disowned, were a range of arguments of lack of accountability of both the ICC and the UN Security Council. In essence the African Union Assembly cried wolf over what they see to be an act of unaccountable, politicised justice, and asked for the ICC to be reigned in. Sudan called the ICC nothing less than a tool of western powers seeking to re-establish neo-colonial patterns of domination over Africa.

But aside from political posturing and unwarranted abuse of global governance institutions and their representatives, is there a real danger of politicised justice at global level, can the ICC strengthen its ability to demonstrate accountability and independence, and where are the limits to what it can do by itself to ensure its independence in a political world?

The paper analyses these questions from the perspective of the Rome Statute for the ICC, the relationships of the Prosecutor, the Pre Trial Chamber, and of the Court overall with the Assembly of State Parties and the Security Council. It reviews briefly how the accountability issues that these bodies face themselves impact on the ICC and perceptions of its independence. The paper concludes that the case of the ICC indeed shows that it is subject to power and is part of a web of political accountabilities which affect the exercise of international criminal justice. Yet in itself it faces limitations on the choices it can make to safeguard its independence as it is not solely in control of the accountability relationships in which it is tied in. The paper closes with four propositions for how the ICC itself can strengthen to some degree its accountability and independence, including

- the development of a Prosecutorial Code,

- the establishment of an independent monitoring mechanism by the Assembly of State Parties,

- encouragement of both case related support and watchdog functions by NGOs, and

- improved communication of existing accountability mechanisms in place to guarantee independence and prevent political abuse of power within the ICC.