Indicting the International Criminal Court

May 19,2019
By Aryeh Neier

NEW YORK — The International Criminal Court (ICC) has come under withering criticism from the first four presidents of its oversight body, the 123-member Assembly of States Parties, following its decision not to investigate war crimes and crimes against humanity in Afghanistan. The reproach, which came in the form of an essay published by the Atlantic Council, is unprecedented but not unwarranted.
While the four diplomats, including former United Nations High Commissioner for Human Rights Zeid Raad Al Hussein, remain “strong supporters” of the ICC, they are “disappointed”, “frustrated” and “exasperated” by its weak performance. Given how desperately the world needs the ICC, they argue, an “independent assessment of the Court’s functioning by a small group of independent experts is badly needed”.

As someone who urged the creation of the ICC two decades ago and has been among its leading proponents ever since, I agree that the court needs fixing. The presidents’ letter cites the April 12 decision on Afghanistan, which reflected a lack of confidence that the ICC could successfully carry out the job. But frustration with the ICC’s ineffectiveness has been building for a long time.

Consider the case of former president Laurent Gbagbo of Côte d’Ivoire. After his electoral defeat in 2010, Gbagbo refused to step down. The ensuing violence, which was widely attributed to forces under Gbagbo’s control, resulted in some 3,000 deaths. Yet, after several years in ICC custody, Gbagbo was recently acquitted of all charges of war crimes and crimes against humanity. He remains in detention while the prosecution appeals the trial court’s judgment.

In fact, though the ICC has initiated proceedings against multiple heads of state, none has been convicted. Sudanese president Omar Al Bashir was indicted a decade ago for crimes against humanity and genocide in Darfur, but was never apprehended. And while Kenyan President Uhuru Kenyatta faced charges related to ethnic violence that followed disputed elections in 2007, the case was withdrawn after witnesses against him became unavailable to testify, presumably due to intimidation or bribery.

Gbagbo’s acquittal was preceded by another major setback for the prosecution at the ICC. Last June, an appellate tribunal overturned the conviction, for war crimes, of Jean-Pierre Bemba, the Democratic Republic of the Congo’s former vice president and the highest-ranking official the ICC had ever convicted.

All told, in the 17 years since it began operating, the ICC has secured lasting convictions against only six people. This weak record contrasts sharply with those of the ad hoc tribunals established by the UN to prosecute the war crimes committed in the former Yugoslavia, Rwanda and Sierra Leone. Together, these tribunals have secured about 165 convictions, including of top officials, after thorough, credible trials and appellate proceedings.

As the former assembly presidents’ essay acknowledges, “we have never needed the [ICC] more than today”. In Syria and Yemen, for example, atrocities are being committed on a daily basis. The ICC should be securing justice for these crimes, not only for the victims, but also to discourage combatants in future conflicts from behaving with such blatant disregard for the rule of law, international norms and human rights.

But, as it stands, the ICC is unable to act, because Syria and Yemen have not agreed to be subject to the ICC’s jurisdiction, and Russia, probably joined by China, would veto a decision by the UN Security Council to refer crimes being committed there to the ICC. China would also veto any resolution referring to the ICC its so-called reeducation camps, where roughly a million Uighurs, an ethnic and religious minority that the authorities view as a security threat, are currently detained.

This does not mean, however, that the ICC has no options. For starters, it should indict Philippine President Rodrigo Duterte, who has directed the extrajudicial execution of about 20,000 alleged participants in the illicit drug trade. Though the Philippines recently revoked its ratification of the ICC treaty, the investigation was already underway, meaning that proceedings could continue.

The ICC could also indict those responsible for Myanmar’s forcible expulsion of more than 700,000 Rohingyas to Bangladesh, which is a party to the ICC. Carrying out such investigations effectively and without delay would restore the ICC’s credibility and bolster its ability to fulfil its intended role as a powerful force for international justice.

To succeed, the ICC will need to overcome strong resistance, not only from dictators and warlords, but even from elected leaders, especially US President Donald Trump. In April, when the ICC was determining whether to proceed with its inquiry into war crimes in Afghanistan, including any that may have been perpetrated by American forces, the Trump administration revoked the visa of the court’s chief prosecutor.

If the ICC is to fulfil the role for which it was created, it can neither bow to such pressure, nor allow its deficient performance to continue. Instead, its leaders, especially its chief prosecutor, the Gambian attorney Fatou Bensouda, must take recent criticism as motivation, and prove that they are up to the task.

Aryeh Neier, president emeritus of the Open Society Foundations and a founder of Human Rights Watch, is author of “The International Human Rights Movement: A History“. Copyright: Project Syndicate, 2019.


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