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Is this the beginning of the end for the International Criminal Court?

With great expectations and over many objections, the International Criminal Court was set up in 2002 to be the court of last resort in prosecuting war crimes, genocide and other crimes against humanity. The Court’s jurisdiction was to deal with cases where national courts could not or would not undertake judicial processes themselves. The Rome Statute which established the ICC has been ratified by 123 countries, but not by 42 others including the United States, China, India, Indonesia and Israel. Now, some countries which have been members are withdrawing. Is this the beginning of the end for the ICC?

The motivation behind the ICC was to create an international mechanism to hold perpetrators to account for gross acts of criminality which couldn’t be prosecuted by national courts, either because competent courts didn’t exist or because they couldn’t operate independently.  It was a noble idea, but it had serious flaws — not least that the ICC and its judges would not be democratically accountable.

This was not a trivial failing: it meant that the Court had only its Statute to guide it, with judges and prosecutors largely free to interpret the Statute as they wished. They alone would decide whether circumstances warranted prosecution, whether the ICC would assert its authority over that of a national court to pursue the prosecution, and whether an individual would be found guilty. There are no trials by jury at the ICC. It also meant that the Court could be as legalistic as it wanted to be and take action regardless of the consequences including the collateral damage done to other legal, political, or diplomatic processes. Finally, it meant the Court could barge into potentially volatile situations over the objections of national governments while insisting those governments help it to gather evidence, issue indictments, make arrests, and arrange extraditions to the Hague in the Netherlands where the ICC is located.

So what kind of record does the Court have? Well, over its 15-year history to date, the ICC has prosecuted just 36 people and has successfully convicted only two. It has also been responsible for some high-profile debacles such as the 2008 indictment of Sudanese president Omar al-Bashir who remains in power and has been able to travel freely to 17 countries including China and India despite an outstanding arrest warrant against him for the Darfur massacres; and the 2014 collapse of the ICC’s case against Kenyan leader Uhuru Kenyatta. Meanwhile, the Court has entertained (but not so far acted on) the idea of prosecuting such “international war criminals” as Henry Kissinger, George W. Bush, Richard Cheney, and Donald Rumsfeld, on the logic that since these individuals are still “at large” US courts must be deficient and the ICC can therefore exercise jurisdiction. By the same logic, the Court appears to have concluded recently that it should launch an investigation into war crimes which might have been committed by NATO and other forces in Afghanistan.

It is the Africans, however, who have been the first to express their displeasure with the Court by withdrawing from it. In October, Gambia, Burundi and South Africa all notified the UN Secretary General of their intention to leave after the mandatory one-year waiting period. Gambia and Burundi offered the rationale that the ICC harbours a bias against African states, noting that all 36 of the individuals the Court has prosecuted have been African and that nine of the ten investigations the Court is currently conducting involve African countries. Both have more immediate reasons as well, being targets of ICC actions. South Africa is departing for different reasons, citing jurisdictional clashes with the ICC over South Africa’s commitment to respect the immunity it affords African heads of state (the government refused to act on an ICC warrant for the arrest of al Bashir); and South Africa’s policy, drawn from its own experience, to promote peace and reconciliation on the African continent — a goal which can be compromised when a leader is incentivized to hold on to power to avoid being prosecuted.

South Africa’s departure from the Court is the most consequential to date, but it is not expected to be the last. There are indications Kenya, Namibia and Uganda may soon follow suit.

 

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