By Nathan Tipping

Since the International Criminal Court’s official inception in 2002, it has been beset by controversy. Accusations of bias, a lack of notable signatories and the perception that the Court aims to meddle in in the affairs of others have all worn away at its credibility and legitimacy. This raises the question of whether enforcing international  justice is even feasible at all – or whether it will simply remain a liberal pipe dream.

On 1st July 2002, the Rome Statute entered into force, creating the first long-standing court of its kind: an international criminal tribunal intended to complement the national judicial systems of its signatories. Signifying an increasing global commitment to human rights, the International Criminal Court (ICC) is mandated to operate during periods when a state was unwilling or unable to prosecute criminals themselves. Yet the Court has been continually beset by internal and external controversies, from accusations of having an ‘African problem’ to an overall lack of hard power. Furthermore, despite a long list of signatories, a number of big names remain absent; most notably, China, Russia and the United States.

With the majority of major human rights violations taking place in ‘developing’ nations, accusations that the ICC has an ‘African problem’ are particularly stinging. Of the 39 individuals indicted by the ICC so far, all have been African. These concerns came to a head in 2014, when an African Union meeting composed of various heads of states, floated the idea of a wholesale disengagement from the Court if it were not to end its supposed crusade against Africa. Despite this, there are a number of perfectly legitimate reasons for the disproportionate attention that states such as the Democratic Republic of Congo, Uganda and Liberia have received. Around 30 percent of the ICC’s 124 signatories are located in Africa, and since the mid-1990s many of the many high profile cases of human rights abuses have occurred there. As former Deputy Prosecutor James Stewart notes, ‘It is not African victims that are complaining of our presence in the region’. And in fact, most cases, such as those of the Congo and Cote d’Ivoire, arose following self-referrals, even though the states are not signatories of the Rome Statute. Regardless, if the ICC is to be seen as a legitimate authority, it must win support amongst both the populations and leaders of African states.

Nevertheless, heavy-handed Western interference has on occasion undermined the Court’s attempts to cast itself as a neutral arbiter of justice. In 2009, a warrant was issued for the arrest of Sudanese President Omar al-Bashir on charges of crimes against humanity and genocide, following the state’s actions in Darfur. The ICC’s warrant has been met with intense hostility from many Arab and African states, which have since effectively ignored it – Kenya, Qatar, China and Nigeria are amongst an array of nations that have since hosted al-Bashir without concern. Such events reflect the sheer lack of confidence in the impartiality of the Court.

Individuals such as al-Bashir remain at large due to the widespread perception that the ICC’s bark is worse than its bite. According to the Rome Statute, establishing an independent police force for the Court is not possible, and the idea of using UN peacekeeping forces to enforce its orders will inevitably be frustrated by the political machinations of the Security Council’s members. In this sense the ICC’s credibility problem is circular: its inability to enforce its rulings means that states are more likely to ignore any warrants it issues, which in turn weakens its credibility further.

To further compound the ICC’s crisis of credibility, it is often argued to be an obstacle to the peace process in many countries, by obstructing reconciliation efforts. A key step towards achieving long-lasting peace, and often one of the most difficult for those involved, is allowing certain crimes committed during conflict to slip by unaddressed – even if these are sometimes particularly serious. If the ICC were to indict a high profile figure currently part of the peace process, this may re-spark conflict in areas undergoing the delicate process of reconciliation. Critics have pointed towards the peace process in Uganda between the Lord’s Resistance Army (LRA) and the central government. In this case, number of high-profile LRA rebels failed to attend peace negotiations, citing fear of arrest after the ICC issued indictments against them.

The Court’s lack of ‘hard power’ – that is, a dedicated police force capable of enforcing its will – has prevented it from becoming a truly potent force.  China, Russia and the United States have viewed the ICC with nothing more than outright suspicion. Their shared concern rests on the assumption that they may find themselves on the receiving end of the Court’s judicial powers. These countries have had their own individual concerns. In the case of China and Russia, the Court is perceived as a stick with which the West may beat them over the issue of human rights. For the United States, it risks becoming yet another critic of their global interventions. If the ICC is to succeed in the long term, it will need all of these global powers to cooperate with its aims. Even then, however, the ICC would still face difficult problems. Noam Chomsky has noted that when such institutions become dominated by major powers, the ‘operational definition of a “war crime”’ becomes ‘“war crime that they committed and we did not”’. From this, another catch-22 appears: if the world’s major powers refuse to become partner to the ICC, its hard power remains weak, if they join, the ICC risks being viewed simply as a pawn.  

Faced with this mountain of challenges, it is easy to see the ICC as a project doomed to fail. Is it really feasible to create a Court that can be seen as genuinely neutral in a world wracked by clashing political interests? It certainly appears to be a mammoth endeavour. According to Viktor Peskin, Professor of Political Science at the University of California, a prosecutor in international law must play a dual role. Not only does he or she hold the responsibility of collating evidence to convict those suspected of war crimes, but they must also play the role of the “political strategist who manoeuvres through the relatively unchartered shoals of the trials of cooperation to obtain state compliance” when seeking a conviction. In short, judges must take international politics into account. This is, as Allan S. Weiner has noted, potentially a very slippery slope, given that judges are supposed to be politically impartial. Yet for a Court with such admirable but ambitious aims, this may be one of the only ways to ensure its legitimacy and credibility, and thus its effective functioning.

Justice is inherently political; to define what is and is not a crime, and how said crimes should be responded to, is a process characterised by political conflict. In the case of international justice, this is especially true. Despite this, it is still a noble cause worth pursuing even though at times it may appear an impossible task. After all, it has been shown to work. In March 2016 Jean-Pierre Bemba Gombo, a former military commander in the Central African Republic, was found guilty of two counts of crimes against humanity and three counts of war crimes. Without the ICC, Bemba’s crimes would have gone unpunished. If similar trials are to occur in the future, then the ICC must first face up to a mountain of problems.

By Nathan Tipping

 

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