The International Criminal Court: Justice Or Politics?

Despite its noble aims to “to end impunity” for war crimes and crimes against humanity, the International Criminal Court (ICC) is not without controversy. The Court was established in 2002 in the Hague in the Netherlands and is governed by the Rome Statute. In its nearly 19 years of operations, the ICC has recently come under fire for failure to address some of the world’s most desperate situations as well as its bias towards certain cultural groups.

International tribunals have existed before the ICC such as when international bodies prosecuted crimes after the breakup of Yugoslavia and in the wake of the Rwandan genocide. However, the ICC is the first permanent Court for its purpose. Other tribunals were established to investigate particular places for specific periods whilst the ICC has jurisdiction in any member state from which a referral is made. The Court intervenes in conflicts and prosecutes governments and political leaders when national courts are unable or unwilling to do so. In particular, the Court takes cases relating to genocide, war crimes, crimes against humanity, and crimes of aggression.

In recent years, The ICC has been questioned regarding its role in providing justice for the weakest and most under-represented peoples throughout the world. The Court was scrutinised by Amnesty International after it rejected a request from Chief Prosecutor, Ms. Fatou Bensouda in respect to prosecuting crimes alleged to have been committed by U.S. troops and CIA service personnel in Afghanistan. This is a clear example of the ICC being called out for failing to fulfil the role it promotes.

Although the United States is not a ratified member of the ICC, the nation can be prosecuted for crimes committed in Afghanistan, as Afghanistan is a ratified signatory. In 2016 the ICC established there was reasonable basis to investigate the activities of U.S. troops in relation to the rape and torture of detainees done as a means of extracting information to aid U.S. objectives. The mistreatment of the civilian population has been widely reported. Miles Lagoze, an army veteran and documentary maker, emphasized in his new film “how absurd this war is” and that “there wasn’t even a definition of what the outcome was going to be, what winning would even look like, or anything, really. And just the waste of life.”

Since the outbreak of the war in 2001 and the Americans’ “Operation Enduring Freedom” there have been concerns about the appallingly high casualty rate among civilians from air strikes. Over 2000 have been killed on the U.S. side but the death toll for Afghan citizens and troops is around 10 times that number, at a conservative estimate. This is exactly the situation for which the ICC was established: to prosecute crimes committed by a powerful nation in a volatile conflict where civilians bear the brunt of armed unrest. In Afghanistan, however, this has not been the case.

Then, there is the evident bias against African people. The first verdict was in 2012, against a Congolese militia leader, Thomas Lubanga. Lubanga was prosecuted for the use of child soldiers and received a sentence of 14 years. The majority of charges from the ICC have been brought against black Africans, and while the continent has been the backdrop to a number of horrific contemporary conflicts, black Africans by no means have a monopoly on the crimes which the ICC could prosecute. As a result of this bias, member countries of the African Union have not always been forthcoming in their cooperation with the ICC. For example, when Sudanese President Omar Al-Bashir was indicted for multiple counts of genocide, war crimes and crimes against humanity, the governments of Kenya and Chad, members of the ICC, refused to cooperate in the arrest. Further, ICC signatories such as Burundi, South Africa, and representatives of the African Union have expressed they would rather conduct their own investigations into atrocities committed in member states. In the global community, The ICC is often seen as an extension of Western imperialism, especially since the main financial contributors to the Court are European nations.

The legitimacy of the ICC and its efficacy in enforcing global justice is also compromised by the United States refraining from becoming a party to the Rome Statute that governs the Court. In fact, the U.S. stands very much in opposition to the purposes of the ICC. The view from Washington is that such a court compromises the sovereignty and independence of nation-states. As one commentator put it in The Guardian, “under the Trump administration, the U.S. will not be found by rules, and will do what it pleases.” It seems that political clout and U.S. resistance are a likely cause for the aforementioned rejection of investigation into the U.S. conduct in the Afghan war. The bullying of judges who wished to investigate in Afghanistan did not go unnoticed as German judge Christoph Flügge observed in relation to the matter “every incident in which judicial independence is breached is one too many.”

It appears the ICC has become a tool for foreign policy and geopolitical rivalry, rather than the supra-national body for the enforcement of justice for the most vulnerable in the world. Moreover, earlier this year former Ivory Coast president Laurent Gbagbo was acquitted of crimes against humanity by an ICC judge, which was “yet another major blow” for the ICC according to James Goldston of Open Society Justice Initiative. The Court has so far not demonstrated that it can unbiasedly charge and convict powerful people convicted of grave crimes.

Even though it faces disputes over its legitimacy, accusations of bias, and severe political obstacles, the need for such a Court has been highlighted by many. For Instance, Human Rights Watch draws attention to the “setbacks” that the organization has encountered but acknowledges the dire need for its mandate as “human rights crises marked by international crimes continue to proliferate.” The former presidents of the Assemblies of States Parties of the ICC wrote in a blog post on the Atlantic Council “We have never needed the Court more than today… we are witnessing conflicts fought with cynical disregard for human dignity and international law. This has devastating consequences for the prospects of sustainable peace.” The need for a Court of its nature is undeniable however, it must carry out its duties in an impartial and legitimate manner to prove its worth.

There is obvious need for the ICC. The real question is whether it can solicit the support of its member states and escape the political mire in order to carry out its aims of defending justice and fighting impunity. As the former presidents wrote on the Atlantic Council, “it is powerful people who commit such crimes, and they will not concede without a fight.” If it is to maintain the image of a legitimate and just institution, the ICC must prosecute where ever there are victims, even if that means confronting a world power such as the United States. Political considerations have no part to play in a body that nominally values justice. There is an onus on member states to uphold the principles of the Court, and citizens of member states must hold their governments accountable for engaged membership. Despite its high profile and great potential to fight some of the greatest atrocities committed in the 21st Century, it remains unclear whether this Court will become an effective force, or whether it will be stymied with politics and complacency.

David N Rose