17th July 2018 marked the 20th anniversary of the Rome Statute, the treaty that established the International Criminal Court (ICC). Established to investigate, prosecute and deter serious international crimes such as genocide, war crimes and crimes against humanity, the ICC was aimed at ending impunity and setting a stage for global accountability. However, over the last decade, a series of the Court’s decisions has elicited mixed reactions. For some the Court is a principal organ for ensuring accountability for grave crimes and a beacon of international rule of law, while for others it is a neo-colonial instrument used by the West to perpetuate subjugation of Africa states, and still for some it is inefficient. These reactions are central to debates on the ICC.
On 20th and 21st September 2018, the Department of Diplomacy and International Relations at Kenyatta University in partnership with the Open Society Initiative for Eastern African (OSIEA) created a platform for a debate themed “20 Years Since the Rome Statute of the International Criminal Court (ICC) – The Status of International Rule of Law, and Access to International Criminal Justice in Africa.” The international convention aimed at providing a platform for taking stock of the achievements of the ICC; the challenges and missed opportunities, and suggesting options for future global justice agenda. The convention brought together leading scholars, researchers, government officials, diplomats, civil society and media. Some of the leading participants included Justice Richard Goldstone; Prof Makau Mutua; Prof Mark Drumbl, Prof Gilbert Khadiagala, Pro Sirleaf Matiangai, among others. In this post I highlight some of the thematic issues that featured during the two days conversation.
Origins of the International Criminal Court
The origins of the ICC can be traced to the Nuremberg trials of 1945-1949 in the aftermath of the World War II to bring Nazi war criminals to justice. The Nuremberg tribunal constituted a benchmark in international criminal justice and contributed to development of the Genocide Convention and Universal Declaration of Human Rights in 1948.
Following the Holocaust, European states vowed “never again” shall genocide occur on European soils. However, between 1992 and 1995, genocide occurred in Yugoslavia. In response the International Criminal Tribunal for Yugoslavia was formed. Before the world could come to terms with the horrific events, genocide occurred in Rwanda in 1994, necessitating the formation of the International Criminal Tribunal for Rwanda. These developments informed the drafting of the Rome Statute and the establishment of the ICC as a permanent international judicial institution. This was at the height of civil wars in Africa, too massive for local adjudication. An international intervention instrument to deal with criminality of these conflicts would be appropriate. New thinking such as limited sovereignty, sovereignty with responsibility and responsibility to protect informed the aspiration for the Court. African countries including Malawi, South Africa, Uganda and Kenya actively participated in the drafting and signing of the Rome statute in 1998. When the court became operational in 2002, Africa as a continent had the highest number of countries who had ratified the Statute.
Upon the ratification of the Rome Statute in 2002, many world leaders heralded the development of international criminal law enforcement. It epitomised the development of international criminal law, raised international justice to a higher level and represented a magnificent leap forward in the struggle against impunity, surpassing the benchmark set by its predecessors.Director of the Codification Division of the UN Office of Legal Affairs, Roy Lee, remarked that the Statute was a tremendous historical success. On 11 April 2002, when 60 states signed their membership of the Rome Statute, the then UN Secretary General Kofi Annan is reported to have remarked that impunity had ‘been dealt a decisive blow’. Prof Cherif Bassiouni described the ICC as an institution that befitted the nature of international relations characterised by competing interests.
Justice Richard Goldstone gives his keynote address at the International Conference on 20 Years Since the Rome Statute at Kenyatta University, November 20, 2018
Achievements of the ICC
The question is whether the ICC has succeeded in eliminating impunity. For some observers there has been a decline in impunity as states are continuing to incorporate aspirations of the Rome Statute into their domestic laws and that some ICC deterrence effects can be seen. For example Sudan’s Al Bashir has had a limited freedom of movement since his indictment. Thus regime of restraint is slowly getting routed. Conflict actors no longer commit atrocities without thinking of who might be watching them. These notwithstanding, there are serious challenges the ICC has encountered within its 20 years.
Challenges to the ICC
First, the ICC has been accused of dismal performance with some cases dismissed at the pre-trial stage for lack of evidence and lack of state cooperation. The ICC is perceived to have registered very few convictions. The acquittal of Jean Pierre Bemba, in particular, whose troops committed atrocities in the Central African Republic, is seen as a major blow to the course of justice and the performance of the Court. It can as well be observed that the Court has only succeeded in convicting the ‘middle level fish’ rather than the ‘big fish’. The ICC has not focused on international aiders and abettors of the conflict, which perpetuate conflicts.
Second, the ICC has been caught up in the web of global politics. Powerful states such the USA, China, Russia, India have declined to be parties to the Rome Statute. The United States, in particular, has opposed the ICC from the time of George Bush Junior to current administration of Donald Trump, questioning legitimacy of the ICC. A recent statement by the United States’ National Security Adviser, John Bolton in September 2018, claims that the Court has been ineffective, unaccountable, and indeed, outright danger. Bolton stated that the US will not cooperate with, or provide assistance, or join the ICC and will let it die on its own—that that ICC is already dead. The US fear is that the ICC and its prosecutor have potentially enormous and essentially unaccountable powers that could hurt the constitutional rights and sovereign rights of the American people.
In Africa, political elite are also critical of the ICC. A dominant criticism is that the Court has been acting as a Western neo-colonial enterprise in Africa, that it is disproportionate and biased against Africa. This has elicited the threats of mass withdrawal from the ICC. Observably, majority of the situations where the ICC has intervened are in Africa.
However, political actors seem insincere and incoherent in their criticisms. John Bolton’s claim that the ICC is dead and dangerous is really incoherent. If it is superfluous, why talk about it? If it is dead then it is not dangerous. The US is ambiguous in its support for or rejection of the Court. The USA supports the ICC’s interventions in Africa while maintaining that the Court is dangerous to America. The USA selectively supports international criminal justice regime when it advances its foreign policy objectives. The establishment of the Sierra Leone Special Court was, for instance, predominantly financed by the United States, many of the prosecution lawyers came from the USA and judges from countries under influence of or had close ties with the USA.
African political elite’s claims against the Court is a mark political insincerity and equally ambiguous. The same leaders use the Court to foster their domestic political interests. For example President Kagame, a critic of the ICC, once petitioned the UN to create an international tribunal to try perpetrators of the 1994 genocide. President Museveni referred the LRA atrocities to the ICC. Museveni and Kagame later became arch critics of international justice system. As Museveni joined in calls for mass withdrawal from the Rome Statute, he transferred Dominic Ongwen to the ICC. The Kenyan cases demonstrate the power of state parties over the ICC. Kenya used its political power to marshal Africa to reject the ICC and its political protestations overshadowed and undermined victimhood in Kenya. Power of politics greatly influences the activities of the ICC.
Third is the question of victims. Experience shows lack of victim participation, reparation, and protection, due to several factors. At the ICC, victims have a dual status- as case-victims and as situation-victims, which complicates addressing issues of their victimhood. Where victims double up as witnesses, they fear coming out for their security. Funds also delay ICC missions and ultimately the process of justice delivery. Victim representatives cannot operate if they fail to get security from the ICC as well as from the state. This undermines their operations. Interested parties also interfere with witnesses thereby hindering justice for victims. In the Rome Statute regime there is a manner in which victimhood depends on successful conviction, thus, victims become disillusioned when a case is dismissed.
Ken Ogeto, Solicitor General, Republic of Kenya, gives his keynote address at the
International Conference on 20 Years Since the Rome Statute at Kenyatta University, November 20, 2018
There are advocates for regional institutions with capacity to complement the ICC’s efforts in dealing with impunity. The Malabo protocol that established the African Court of Justice and Human Rights (ACJHR) would be a relevant instrument. The protocol could present a unique vision of international law and provides a chance to re-think how African states can shape international criminal justice.
However, a critical issue with the Malabo Protocol regards the clause of immunity for heads of states. This has triggered debates on the relevance of the instrument in international accountability. The protocol maybe used by some leaders to protect themselves while pursuing their political opponents. Thus it is not clear if the Protocol will achieve the aspirations of international rule of law in Africa.
Professor Mark Drumbl gives his keynote address at the International Conference on 20 Years Since the Rome Statute at Kenyatta University, November 20, 2018
i. The ICC needs to accept that it works in a context of global politics and rethink its idealistic liberal institutionalism. It should explore ways of transcending the international politics by defining its relationships without compromising its independence. States must also acknowledge that radical realism on the contemporary global stage cannot guarantee security and peace for all. These will provide better environment for investigating and prosecuting alleged atrocities.
ii. The ICC needs to strengthen its investigative, pre-trial and trial processes in order to promote timely and effective delivery of justice and improve its legitimacy. The Court should address the accusations of selective pursuit of cases.
iii. The ICC needs to devise better ways to promote witness and victim participation, representation and reparations. Victims should be involved in all processes that affect them.There is a need to focus on sexual and gender based violence. Having female judges at the ICC is vital for responsive decision making on women issues.
iv. Africa and the ICC need to stop talking past each other. It is important that the ICC seeks to build trust with Africa (and other relevant actors) through honest and open engagements. African leaders on their part need to acknowledge that the ICC regime has the effect of moderating transitional politics within states by deterring atrocious seizure and transfer of state power.
v. African continent needs to strengthen domestic and regional capacities to deal with serious atrocities committed by their citizens by developing regional and domestic instruments of international criminal justice. The Malabo protocol should demonstrate that it is not for the protection of political elite but for the international rule of law.
vi. There is a need to rethink the concept of international criminal justice and to consider how alternative mechanisms including restorative justice can complement the work of international legal institutions.
vii. State parties need to reconsider budget cuts as this undermines fair trials which are often lengthy and costly.
Due to the ICC, leaders can no longer act with absolute disregard of the international rule of law. But there are challenges like internal deficiencies, apparent selective prosecutions, lack of essential states cooperation and limited victim participation. However, demise of this Court would be a huge set back in the pursuit of international rule of law.
Dr Joseph Wasonga, Lecturer in International Relations and Diplomacy at Kenyatta University
The writer acknowledges the support of Open Society Initiative for Eastern African and the Knowledge Platform Security and Rule of Law