Many criticisms of International Criminal Court have validity
Opinion: Avoidance of difficult cases creates risk of perceived double standards
Congolese warlord Thomas Lubanga, who was convicted by the International Criminal Court for recruiting child soldiers. Photograph: Reuters
When the International Criminal Court (ICC) was established in 2002, there was real optimism about holding those most responsible for genocide, crimes against humanity and war crimes to account. Today, the Court is being criticised for having a racist agenda, a flawed investigation process and a prosecutorial strategy, as well as suffering from unacceptable delays. The current prosecutor, Fatou Bensouda from Gambia, has hit back at critics, saying they are trying to protect the perpetrators of these crimes.
Many of the criticisms are valid. To date, the court has convicted only one defendant, a former Congolese warlord, Thomas Lubanga. Last December, a second Congolese warlord was acquitted when the court rejected the prosecution evidence and testimony of a number of key witnesses. More recently, a judge reprimanded the prosecutor’s investigation of Uhuru Kenyatta, now president of Kenya. Reference was made to the grave problems in the review of evidence by the prosecutor and lack of proper oversight. This week, the court requested the prosecutor to consider providing further evidence or conducting further investigation with respect to the charges presented against Laurent Gbagbo.
Other international tribunals have not fared much better. The special tribunal established to prosecute former Khmer Rouge leaders in Cambodia, with its mix of international and national staff, has been plagued by internal strife and government hostility. After seven years and just one conviction and two remaining defendants, states financing this system are losing faith.
The Special Tribunal for Lebanon has been painstakingly slow due to intimidation and attacks on its team in Beirut.
The International Criminal Tribunal for the former Yugoslavia has faced criticism that it has an anti-Serb bias. Last November it overturned a number of trial decisions in controversial appeal judgments. It also acquitted the former prime minister of Kosovo for a second time, raising the question as to why the case was brought in the first place.
Virtually all the cases before the ICC at present are from the African continent. However, nearly all of the current investigations arise from referrals to the court by the African countries themselves.
In Kenya, it soon became clear that the political leadership was not committed to accountability for the post-election violence. As a consequence, the prosecutor at the ICC began an investigation.
There is no doubt that the tension between the court and some African states has been heightened by the fact that the Sudanese and Kenyan presidents are on the current list of wanted persons. The plea for UN Security Council intervention to terminate the ICC proceedings in respect of Kenya was misjudged. Kenya must co-operate with the ICC while still pursuing national prosecutions against less powerful political figures.
The president of the ICC has defended its record, claiming it is impartial and apolitical. The evidence points to the contrary. The situations and cases currently under review have a decidedly African focus. When the investigations that have progressed are compared to those that are stalled, a similar pattern emerges.
The cases that are being prosecuted also involve a range of individuals that in some way or another have incurred the wrath of larger Western states. States’ support for the ICC has been inconsistent, strong on rhetoric and weak when political support is needed to do its job.
Politics and law, especially at an international level, will always be intertwined. The atrocities committed in the course of the conflict in Sri Lanka did not lead to any commission of inquiry or tribunal, let alone a referral to the ICC. The Sri Lankan government had powerful friends. The UN Security Council has referred the situation in Darfur and Libya to the court. However, the situation in Syria has not been referred owing to disagreement among the permanent members of the Security Council.
All this points to the defects in the administration of international justice. Central to this process is the role of prosecutors. The prosecutorial strategy adopted by the ICC under its first prosecutor, Moreno Ocampo, has left a challenging legacy to follow.
The ICC does not replace national jurisdictions; it only complements them when necessary. National prosecutions are preferable, but few have confidence in the current Kenyan leadership. Likewise, it is unlikely that Gadafy’s son, Seif al Islam, would get a fair trial in Libya. How the court manages the Kenyan dilemma will test its credibility. Navigating the political and diplomatic storm that situations such as Palestine present will prove difficult. To date the court has taken the easy options and steered clear of contentious cases. The current policy risks creating a double standard that threatens its integrity.
Prof Ray Murphy teaches at the Irish Centre for Human Rights, School of Law, NUI Galway. The centre hosts an annual summer school on the International Criminal Court with international experts from June 17th to 22nd.