International Criminal Court
An Experiment in Prosecuting Atrocities
The worst crimes in history — acts of mass inhumanity, usually committed amid political or military conflict — often have been the least punished. So in 2002, 60 countries came together to create the International Criminal Court in The Hague to provide, for the first time in history, a permanent, independent arena for holding accountable those who commit such atrocities. Since then its membership has more than doubled. Now the ICC’s ability to function effectively is imperiled by African members that complain it’s biased against them and are failing to cooperate and threatening to quit. Meanwhile, scholars debate whether the court’s prosecution of genocide, war crimes and crimes against humanity is the best way to heal traumatized societies.
In October, lawmakers in Burundi voted to leave the court. It was the first country to initiate such action. Soon after, South Africa’s government made the same decision, pending parliamentary approval, as did Gambia’s. African members have complained for years of bigotry at the ICC. All 23 cases brought before the court have been against Africans. At a cost to its member states of more than $1 billion, the ICC has convicted just five people, a former vice president of the Democratic Republic of Congo, two Congolese warlords, another from the Central African Republic and a jihadist from Mali. Those sentenced to imprisonment serve their terms at the ICC’s detention center within a Dutch prison. Some African members have declined to assist the court’s work. The ICC withdrew charges against Uhuru Kenyatta, now Kenya’s president, in 2014 because the Kenyan government failed to provide evidence in the case. Kenyatta was charged with culpability in ethnic violence after 2007 elections that claimed 1,100 lives. Although obligated as ICC participants to honor the court’s warrants, at least six African members have declined to arrest visiting Sudanese President Umar al-Bashir. The court has sought Al-Bashir since 2009 on charges including genocide.
In an early exercise of international criminal justice, Allied powers tried and punished German and Japanese leaders after World War II, sentencing some to death. Because the Allies granted themselves immunity from war crimes charges, the tribunals were criticized as victors’ justice. To avoid that conflict of interest, the UN Security Council created independent, international tribunals to prosecute atrocities in the Balkans and Rwanda in the 1990s. Those horrors revived a 19th-century idea of establishing a permanent world court for such purposes. The ICC was born out of an international treaty called the Rome Statute. Among the countries that have not ratified it are the U.S., China, Russia and India. The U.S. says putting its citizens under the court’s jurisdiction would violate their constitutional rights. The ICC can pursue cases when a country asks for an investigation within its territory or of its citizens, when the UN Security Council requests a probe, or when an ICC panel of judges authorizes an inquiry initiated by the court’s prosecutor. The prosecutor also must ascertain that domestic legal systems aren’t genuinely seeking justice. The court cannot impose the death sentence. A trust fund provides victims reparations even if those convicted are impoverished.
Critics in Africa say the court’s record shows it’s driven by echoes of colonialism or worse, racism. Many African governments argue that charging a sitting head of state tramples a nation’s sovereignty. The court’s supporters say victims deserve justice even if the accused is a powerful politician. They note that more than half the formal probes under way were initiated by African governments and that the continent has a concentration of nations in turmoil that lack effective legal systems. They point out that the ICC is conducting half a dozen preliminary probes outside Africa, in such places as Colombia, Ukraine and the Palestinian territories. ICC fans argue that bringing transgressors to justice eases victims’ suffering and creates deterrents against future crimes. Some commentators maintain that truth commissions, like the one in post-apartheid South Africa, are a better mechanism for righting wrongs. Those bodies typically collect evidence, publish reports and offer legal immunity if people tell the truth. The aim is peace between old enemies rather than justice per se. Other analysts prefer a model in which states themselves prosecute cases with the assistance of the UN and other nations. Such courts have been set up in Cambodia, Lebanon and Sierra Leone.
The Reference Shelf
- A report by the Congressional Research Service explains evolving U.S. policy toward the ICC; another explores the debate over adding the crime of aggression to the court’s jurisdiction.
- Political scientist Duncan McCargo argues in the Journal of Democracy that truth commissions are a better way of healing post-conflict communities than putting people on trial.
- Harold Honghu Koh, a U.S. State Department legal adviser, traces the evolution of international criminal justice in a 2012 address.
First published Aug. 12, 2015
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