Diminishing Space for the International Criminal Court

From recent events around the global the continued efficacy of the ICC as a global court of last resort is seemingly under threat. The loud silence of the prosecutor new armed conflicts emerge and the old conflicts take new dimensions heightens the question regarding the continued viability of the court.

Perhaps, the most obvious criticism has been the slow pace of the investigations and the prosecution. With the kind of resources that it controls, the pace of the trials is simply unacceptable. The investigations and prosecution of the cases take a long time, it was argued, due to the difficulties in getting into conflict countries, and gathering sufficient evidence long after the atrocities have been concluded and the potential witnesses have already died. Fair enough. However, even in situations where the ICC conducted investigations soon after the conflict had ended, the delays remain the same. The Kenyan cases, for example, which were investigated in 2008-the same year that the violence ended-is still going on. It is arguable that even within the domestic setting, with an inefficient criminal justice infrastructure, sensitive cases do not last this long. But even if they do, the domestic courts are certainly not the ICC which is supposed to be the zenith-and therefore an example-of an efficient criminal justice system. The net effect of these delays is that the court has lost relevance in the lives of the ordinary people who have since “moved on” with their lives.

The criticism by the African member states has also removed the luster of the ICC off the eyes of a significant portion of the African population. It is true that the “we are being targeted” chorus is simply a way for the leaders to protect their own after the indictment of President Al Basher of Sudan and the prosecution of President Kenyatta of Kenya. However, it is also true that the only people under trial are Africans. This, I must emphasize, is not for the lack of potential cases elsewhere in the world [1]. Lack of prosecutions in situations outside Africa does not augur well with the ICC’s claim to independence and neutrality. Largely because of this perceived persecution of its members, the African Union recently extended the criminal jurisdiction of the African Court on Human and People Rights [2]. The Union also provided for the immunity of serving heads of states and all senior government officials during their term in office. The result is that the African states will prefer to deal with their own atrocities regionally. It is also likely that these states could withdraw en masse from the Rome Statute, thus significantly reducing the authority of the ICC as a global court. At best, the countries could remain as nominal members but concentrate on building the regional court. Interestingly, these same leaders were later wined by President Obama in Washington DC. One of them, President Uhuru Kenyatta, is still an ICC indictee. Could this be the beginning of the “ask no questions, see no evil” era of the Cold War? Likely [3]. If so, this is bad news to the ICC which relies on Western world’s financial and diplomatic muscle to continue with its work.

It also seems like the determination “to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes”[4] has been negatively affected by circumstances beyond its control. In relation to Ukraine, the Gaza and Syria the ICC looks very impotent mainly due to the geo political realities. In relation to the Southern Sudan, Libya, Central African Republic, Northern Nigeria the ICC could flex its muscles. However, the impasse with the African Union seems to have taken away any remaining appetite for more investigations in Africa [5]. The Democratic Republic of Congo is not any closer to having peace, despite the imprisonment of two perpetrators for war crimes. Although Iraq is currently under the ICC lens this has not deterred the ISIS militant group from executing its genocidal intentions [6]. Ditto the Boko Haram in Nigeria. With more and more conflicts in every other corner the capacity of the ICC is under severe strain. More importantly, its ability to deter the occurrence of future international crimes is questionable. So, is it time to close shop?

 

[1] Outside the African continent, preliminary investigations have been opened in Afghanistan, Columbia, Georgia, Honduras, Iraq and Ukraine. However, nothing tangible has come out of them so far.
[2] Resolution passed at the African Union’s Heads of States Summit held on 26th-27th June 2014
[3] See http://www.theguardian.com/world/2014/aug/05/africa-leaders-summit-why-human-rights-are-off-obamas-agenda
[4] Prelude of the Rome Statute
[5] See http://www.foreignpolicy.com/articles/2014/07/15/kenya_destroyed_icc_south_sudan_human_rights
[6] See http://blog.unwatch.org/index.php/2014/08/10/urgent-appeal-to-un-stop-genocide-in-iraq/

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