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Is the International Criminal Court biased?

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By Neha Basnet

The International Criminal Court (ICC) is a vital part of the international effort to eliminate a persistent culture of impunity. This culture of impunity has sheltered those who have committed serious international crimes such as war crimes, crimes against humanity, and committed genocide. Situated in The Hague (also known as political city), the ICC is a permanent international judicial institution designed to complement national judicial systems, if they are unable or unwilling to prosecute individuals for serious international crimes (See Article 17 of ICC Statue).  Many questions on the ICC’s equity and accountability have been raised. The controversial Kenyatta trail has now been postponed by three months after the Court ruled that the prosecutor had failed to provide solid evidence to proceed with the trial. Uhuru Kenyatta, from Kenya, is the first sitting president to appear before the ICC. He was accused of planning and financing the ethnic violence after the disputed elections in 2007, in which more than 1,200 people died and thousands were displaced.

But how does the ICC make its decisions? Are there political motivations behind these decisions?

In July 1998 at the Rome Conference, the court supporters – states and the non-state actors alike – tabled a draft statute for creating an international court without the support of the most powerful nations. However, for several years the powerful nations, the U.S. in particular, vetoed the existence of the court as an independent actor and rather preferred it being a tool of the UN Security Council with a prosecutor serving as the Council’s agent. Further, the powerful nations refused to sign the proposal fearing that the Court would restrict their foreign policy and relations with the other states, giving small and medium states a leverage to bring the citizens and foreign contractors of powerful nations under investigation.

For the court to come into effect, the agreement required 60 state ratifications, a milestone that was reached more quickly than expected by April 2002. Twenty-two African countries were among the founding ratifiers of the Rome Statute, and out of the 108 states parties to the ICC, thirty of them are countries from Africa (ICC Statue). The Rome Statute of the International Criminal Court (ICC) indicated that many issues (for example, genocide) which were once of purely theoretical interest would soon arise in concrete form with very real legal and political ramifications. However, the Court was and still is not endorsed by Russia, China and the U.S., all powerful members of the Security Council which requested immunity for their citizens. There were many doubts then already about the ICC’s success and its legitimacy.

“The ICC was created by the African Countries and it has received referrals from the African states,” said Dr. Jeff Handmaker, Senior lecturer in Law, Human Rights and Development at the International Institute of Social Studies (ISS) of Erasmus University, Rotterdam, The Netherlands. “Many people who criticize the ICC have very little idea about it and how it operates. The criticism that’s been coming from the African states is often whipped up by the nationalist elements in countries in the global South and by powerful countries of the north. Consequently, those who raise (legitimate) criticisms of the ICC are accused of either being on the side of the dictators or on the side of the neo-conservatives.”

The first country to appeal to the ICC and initiate an investigation was Uganda. Realizing that the Court could be used as a tool against unwanted rebels and warlords, Uganda referred its own civil war with the Lord’s Resistance Army to the Court in December 2003 (Hawkins, 2008). Sensing this to be a good thing, Congo and the Central African Republic followed suit the next year by also referring situations in their countries to the ICC. “This is why it is not surprising that the trials at the ICC have been exclusively from the African states,” Handmaker stressed.

Thomas Lubanaga, the leader of an armed group in the Democratic Republic of Congo, was the first person to go on trial and to be tried before the ICC on the charges of war crimes. Along with Lubanaga, Germain Katanga and Mathieu Ngudjolo Chui also were on the ICC prosecutor’s list. However, Germain Katanga made peace with the government in 2004 and the government rewarded him with the post of general in Congo’s Army. Despite all the controversies surrounding the fact that the prosecutor had withheld evidence from the Trial Chamber on March 2012, after 7 years, Lubanaga was found guilty and faced a sentence of 30 years (Aljazeera news, 2012).  He is the first person to be convicted by the ICC.

“If they (African Nations) were not sure about the implications of signing the Rome Statue, then why now blame the ICC and its procedures,” said Floan, a Ugandan Student at the ISS. Though Floan shared that violence in Uganda has definitely decreased following the trials, I felt that ICC has not been doing its job properly.  Being biased is not her only concern with the ICC. She argues that the ICC takes up accusations without proper homework and it really creates a negative image about the ICC in peoples’ minds. Take the example of Lubanaga.  He faced the first trial in 2007, almost a year after he was arrested on the charges of war crimes and transferred to the ICC. It was said that the trial was suspended because, according the Trail Chamber, the “prosecution was unable to release more than 200 documents fearing that Mr. Lubanaga would not receive a fair trial.” Lubanaga was charged with the war crimes of enlisting and conscripting children under the age of 15 as soldiers and of using them in hostilities between September 2002 and August 2003 (Human Rights Watch, 2009).

To be effective, the ICC must pose a real threat of prosecution, trial, and conviction for the perpetrators of major international violations of human rights.  At the same time, it need not be limited to the trials it conducts of individual suspects to pursue justice. There are several and more effective ways of pursuing justice such as by playing a mediator ending conflict and civil war, or as a powerful body which holds the right to remove the sitting head of a state out of power.

“The motive of the ICC is very good but because of the way it handles the cases, it might not be taken seriously,” said Irene Nyamu, a Kenyan Student at the ISS. To cite just one example,  an arrest warrant against Omar al-Bashir was declared, but despite being parties to the Rome Statue of the International Criminal Court, countries such as Nigeria, Kenya, Chad, and Djibouti continued to allow Bashir to travel freely in Africa. This raised many questions on the ICC’s capability and its limit. The ICC derives its power from the nations who have signed the so-called “Rome Statue”, which actually established the ICC. Most, but far from all, nations in the world have signed on to the treaty thereby limiting its ability to act.  The ICC has to wait for nations to submit the accused individuals to the institution. Ultimately, many feel, the success or failure of the ICC can only be measured by the impact it makes on the level of crime within its jurisdiction. In other words, “justice” is equated with “criminal retributive justice,” a theory of justice that considers proportionate punishments as an acceptable response to crime.

The ICC must be viewed not in isolation but as the pinnacle of a pyramid of national courts sharing responsibility for international criminal justice. The doctrines of complementarity and universal jurisdiction are central to the effectiveness of the ICC. At its best, the Court can only deal with a handful of the most intractable and important cases which the nation states cannot or will not undertake.  It would be absurd to imagine that a single court in The Hague could ever have the capacity to put on trial all those suspected of human rights abuses throughout the world. The ICC was never meant to displace the responsibility of every individual state to bring such criminals to justice within their own domestic courts. And international human rights laws, including the Geneva Conventions, require individual states to assume jurisdiction over those suspected of violations outside their own territory.

In 2010, a review conference of the state parties to the ICC statue stressed the need for national governments to step up investigations and prosecutions of crimes against humanity and to strengthen their commitment to universal jurisdiction. Yet many states have failed to accept that international justice is more valuable than the parochial traditions of old-fashioned diplomacy. They remain wedded to the doctrine that the states should not trespass on the sovereignty of other states, a doctrine which in the modern world cannot be allowed to extend to the most serious international crimes.

Given these multiple difficulties, the struggle to achieve justice at a global level is complex and frustrating.  At the same time, it is also important to understand the motives and limits of the ICC.

Author: 

Neha Basnet is a graduate from the International Institute of Social Studies at Erasmus University, The Netherlands. She writes about development, child rights, and youth.

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Cafe Dissensus Everyday is the blog of Cafe Dissensus magazine, based in New York City, USA. All materials on the site are protected under Creative Commons License.

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Read the latest issue of Cafe Dissensus Magazine, “Teach for India: A ‘Movement’ to Uproot Inequality through Education” (Edited by Mary Ann Chacko & Yohann Kunders).

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