The International Criminal Court at 12 Years Old
The International Criminal Court (ICC) reached its 12th birthday this month, but the occasion was not marked by celebration. Idealistic visions of a permanent international tribunal have been darkened by doubts about the court’s effectiveness.
The ICC remains a potent political force, championing the hope that international law can hold perpetrators of the most grievous offenses—genocide, crimes against humanity, and war crimes—to account. When governments and activists talk about justice for international crimes, in Ukraine, Syria, and elsewhere, they are looking to the ICC. However, the court’s role as a weapon against impunity and a deterrent against new atrocities will ultimately depend on its ability to win convictions.
The following is a review of the ICC’s eight ongoing investigations. The success or failure of each case will determine not only the ICC’s credibility, but also the practice of international criminal law as a whole.
The subject of the ICC’s first investigation, the conflict involving the Lord’s Resistance Army (LRA) rebel group in northern Uganda, was referred to the court by Ugandan president Yoweri Museveni in 2004. Arrest warrants for LRA leader Joseph Kony and four other rebel commanders were unsealed in 2005, but not without controversy. Many domestic and international observers feared that the ICC intervention would damage prospects for a peace deal with the LRA and complicate amnesty procedures that might coax the group to surrender. More worrisome, though, is the appearance of leniency toward the Ugandan government, which has also been accused of committing crimes against humanity during the conflict.
Democratic Republic of the Congo (DRC)
The ICC investigation into the armed insurrection in the eastern DRC is arguably the court’s most successful to date. DRC president Joseph Kabila referred the case to the tribunal in 2004, and it issued arrest warrants for six rebel leaders and commanders, all but one of whom have appeared in court. The ICC’s first trial led to the conviction of Thomas Lubanga Dyilo, who was sentenced to 14 years in prison for the conscription of child soldiers. The court’s second conviction was upheld this year against Germain Katanga. However, the trial judges revised the charges against Katanga to avoid an acquittal on all counts after the prosecutor failed to provide sufficient evidence, leading to questions about the fairness of the proceedings. The ICC also issued its first acquittal as part of its DRC investigation, citing a lack of evidence. Separately, fugitive former general and rebel commander Bosco Ntaganda surrendered last year and is now on trial for war crimes and crimes against humanity.
Central African Republic (CAR)
Begun in 2005, the ICC investigation into the CAR rebellion of 2002–03 is focused on only one defendant—former DRC vice president and rebel leader Jean-Pierre Bemba. He was arrested in 2008 and transferred to The Hague, where his trial began in November 2010. Bemba is accused of crimes against humanity and war crimes for his militia’s involvement in the conflict, but he and four codefendants also face new charges of witness tampering, bribery, and presenting false evidence in connection with the original trial. Closing arguments for the first trial are scheduled for October; proceedings for the new case are in the pretrial phase.
In response to the deaths of nearly 400,000 people in the Darfur region of Sudan, the UN Security Council referred its first case to the ICC in 2005, against the wishes of the Sudanese government. The ICC issued arrest warrants in 2007 and 2009, most notably against Sudanese president Omar al-Bashir, who became the subject of a second arrest warrant in 2010 for alleged genocide. Because Sudan is not a member of the ICC, Bashir and other high-ranking suspects in the country have been protected from arrest. Bashir travels openly to member and nonmember states, and the ICC has been unable to broker his detention and extradition. Chief ICC prosecutor Fatou Bensouda has responded to recent allegations that the UN peacekeeping force in Darfur has covered up evidence of atrocities committed by the government, threatening to expand her investigation to include possible charges of obstruction of justice.
The ICC’s ongoing prosecution of Kenyan president Uhuru Kenyatta and deputy president William Ruto has raised some political and legal challenges. In response to the postelection violence of 2007–08, the ICC for the first time exercised its powers to investigate crimes committed on the territory of a state party on the court’s own initiative. However, Kenyatta and Ruto have opposed the ICC intervention, demanding that the court drop their cases. Kenyan lawmakers voted to withdraw the country from the ICC’s governing Rome Statute, and Kenyatta has urged other African Union member states to do the same. In The Hague, Ruto and Kenyatta’s proceedings have been marred by alleged witness tampering and frequent postponements due to unreliable witnesses. Increasing political pressure pushed the ICC’s legislative body of member states to adopt new rules that allow Ruto and Kenyatta to be absent for most of their trials, although the legal judgments that support this have been called into question by many commentators. Kenyatta’s trial is set to begin in October of this year, while Ruto’s trial is ongoing.
After a violent crackdown against peaceful protesters by the regime of Mu’ammar al-Qadhafi in February 2011, the UN Security Council made its second referral to the ICC, leading to arrest warrants for the Libyan leader, his son Saif al-Islam al-Qadhafi, and intelligence chief Abdullah al-Senussi. While the elder Qadhafi was seized and killed in the civil war sparked by the crackdown, Saif al-Islam has been detained by former rebels in the city of Zintan since November 2011, and Senussi was turned over to the new Libyan authorities by Mauretania in 2012. The Zintani militia has refused to transfer Saif al-Islam to the Libyan government. He is now on trial before a domestic court in Tripoli via video link, but his defense counsel in The Hague maintains that he is being denied due process. The ICC has yet to issue an order of noncompliance against the Libyan government for failing to surrender the defendant to the international tribunal, and commentators have criticized the court’s inaction. In July, the ICC Appeals Chamber upheld a controversial judgment that allowed Senussi’s trial to be conducted in Libya. Many court monitors have condemned the ruling, arguing that due to recent violence and political influence on the Libyan judiciary, the government cannot ensure a fair proceeding.
The ICC formally initiated investigations into the postelection violence of 2010–11 in October 2011. Arrest warrants were issued for former president Laurent Gbagbo; his wife, Simone Gbagbo; and Charles Blé Goudé, former head of the pro-Gbagbo party’s youth wing. The former president’s trial is scheduled to begin later this year, making him the first former head of state to be tried at the ICC. Blé Goudé made his first appearance in The Hague in March, and Côte d’Ivoire is challenging the ICC’s jurisdiction over Simone Gbagbo on the grounds that it is able to try her in domestic courts. The proceedings have been criticized by many as “victor’s justice,” as no parallel charges have been brought against figures associated with current president Alassane Ouattara.
Mali became the subject of the latest ICC case after the government asked the tribunal to investigate crimes committed by secular and Islamist rebel groups in the northern part of the country since January 2012. Continued violence initially complicated the ICC’s investigation, which formally began in January 2013. However, international peacekeeping forces have been generally supportive of the ICC intervention, including French troops who helped quash the rebellion early last year. The ICC has yet to publicly issue any arrest warrants.
Analyses and recommendations offered by the authors do not necessarily reflect those of Freedom House.
After several tumultuous weeks, the ICC’s future in Africa is quite uncertain. What is next for the ICC in Africa?
Many African rulers, citing the need for “reconciliation,” are vying to strip a nascent regional court of its ability to prosecute sitting heads of state for war crimes, crimes against humanity, and genocide.
The Democratic Republic of Congo (DRC) has been mired in severe instability and violent conflict since 1994, with rival militias, foreign governments’ proxy forces, and ordinary civilians clashing against a backdrop of underdeveloped social services, lucrative natural resources, and pervasive lack of government accountability. A small step forward came in 2009, when a peace agreement provided for the absorption of a major rebel group into the Congolese national army. Last month, however, the rebels’ former leader, Bosco Ntaganda, defected from the army along with hundreds of soldiers, launching a fresh rebellion and plunging the eastern DRC back into conflict. Violence between the newly baptized M23 rebel group and government forces has displaced at least 45,000 people since April 27, and there are reports that Ntaganda has returned to his past practice of forcibly recruiting child soldiers.