Twenty years ago this July, the International Criminal Court (ICC) was born through its founding treaty, the Rome Statute. The ICC is a global court of last resort, intervening only when national authorities cannot or will not prosecute or try individuals for war crimes, genocide, crimes against humanity and aggression. In the last two decades The Rome Statute has been ratified by 123 countries, but the U.S. is a notable absence.
Non-government organizations (NGOs) around the world are a major factor in the operation of international courts such as the ICC. In her latest book, The Hidden Hands of Justice, Assistant Professor of Politics Heidi Haddad examines how and why NGOs act as institution builders to international human rights courts such as the ICC, the European Court of Human Rights and the Inter-American Human Rights System.
In this Q&A, Haddad explores the role of NGOs in international courts as well as the role of the U.S. in international human rights justice.
What inspired your book The Hidden Hands of Justice?
Like much research, The Hidden Hands of Justice came about because of a puzzling finding in a previous project. While examining women’s rights non-governmental organizations (NGOs) and their effects on sexual violence prosecutions at the Rwandan and former Yugoslav tribunals, I noticed that around the turn of the millennium their advocacy completely changed. Many of the groups abruptly stopped their previous efforts, banded together and turned all of their attention to the emergent International Criminal Court (ICC). This prompted a whole series of questions: What is so special about the ICC? What are these NGOs doing vis-à-vis the ICC? Do NGOs have inordinate access or influence at the ICC? Over time, these initial inquiries morphed into the larger project of comparative examination of NGO participation across the three courts: the ICC, the European Court of Human Rights and the Inter-American Human Rights System.
Who are the audiences for the book?
The main audience of the book is academic: particularly those in the fields of international law, human rights, comparative courts and international relations. The book also contains insights for human rights advocates, lawyers and organizations that currently engage, or might consider engaging, with one of the examined courts. Lastly, the book may appeal to a broader audience who work in the legal field and might be interested in how and why non-state actors can have such inordinate influence in the international legal system.
What is the role of NGOs in international court cases and why is this important?
One of the most fascinating things I learned from this research is that NGO involvement with international criminal and human rights courts is much broader and richer than formal participation in actual cases. Of course, NGOs can be influential in cases: they may bring forth strategic cases that push the boundaries of the law or file third party “friend of the court” briefs that provide important legal reasoning or facts. But NGOs also act as supports to the courts and help them function by providing vital information and services apart from the cases. At the ICC, NGOs have provided input on the prosecutor’s long-term strategy, helped the court assemble its budget, conducted on-the-ground outreach for affected communities on behalf of the court, and monitored judicial and prosecutorial elections, among other things. Non-state actors performing any of these functions in U.S. federal courts, or the Supreme Court, would be unprecedented. At the international level, where courts are highly dependent on states, often in cases in which the same states are the human rights violators, NGOs can also play a critical role by augmenting court functionality.
Where does the U.S. stand when it comes to the ICC and international human rights justice?
The U.S. stance towards international human rights justice has historically been inconsistent and self-serving. The U.S. outwardly supports the underlying principles and even sets up and finances international judicial institutions—such as the Nuremberg Trials and the criminal tribunals for Rwanda and the former Yugoslavia—but only those that are not binding on the U.S. This plays out in two of the courts examined in the book. The U.S. financially supports and engages with the Inter-American Commission on Human Rights, but has not signed or ratified the treaty, the American Convention on Human Rights, which would give the commission and court jurisdiction over human rights issues in the U.S. The U.S. was originally supportive of the drafting of the treaty establishing the ICC but when the final draft gave more autonomy to the prosecutor and judges, and less to the U.N. Security Council (on which the U.S. has a veto-wielding role), the U.S. position soured and turned quite antagonistic. The U.S. is not a party to the ICC and has established a federal law that prevents any support for the court and bilateral agreements with dozens of countries that mandate ending all foreign aid if the country turns over U.S. nationals to the court.
What’s next for the ICC and NGOs? Will their relationship remain close?
I anticipate that NGOs will continue to have working relationships with the ICC but it’s unclear whether those relationships will remain so broad and interdependent. The close partnerships between NGOs and the ICC came about because of the immense needs of the fledgling court—needs that well-resourced NGOs, who were already known and revered because of their work establishing the ICC, could help mitigate. Currently, the court is still fairly young and has many challenges, including a recent acquittal in the Bembacase and widespread claims of anti-African bias. The need for help remains, and NGOs are eager and known entities that have provided critical aid in the past. That said, as time goes on, the ICC may want, or need, to scale back its reliance on NGOs and face its challenges independently. There is some evidence that the court is moving in this direction: Chief Prosecutor Fatou Bensouda has been much more willing to publicly rebuke states for non-cooperation and the judicial chambers have repeatedly considered holding in-country hearings. Even with the continuation of this trend, NGO partnerships likely won’t disappear, but they may become more symbolic and demarcated, possibly similar to those at the European Court of Human Rights.