World court battles questions of legitimacy and relevance as it marks milestone
Kampala, Uganda | IAN KATUSIIME | The International Criminal Court (ICC) on July 1 marked 20 years with few victories and many questions about its legitimacy. The fundamental question remains whether it can successfully prosecute the perpetrators of the biggest war crimes, crimes against humanity, and genocide.
An anniversary conference of the court based in The Hague, Netherlands, was aptly themed “International Criminal Court at 20: Reflections on the Past, Present and the Future.”
The ICC has faced accusations of racism and bias from African leaders; a number of whom have been indicted by the court, and now the court’s watchers are keen to see if the court will take any action on Russian atrocities in the war on Ukraine.
Lawyers, jurists and activists the world over have argued that the most crucial test for the ICC will be if it can launch investigations let alone indicting a leader from the West for crimes committed in Libya, Iraq, Syria, Yemen and a host of other smaller nations where drone strikes have killed children, destroyed families and caused untold suffering. Related to this, the ICC has faced the possibility of sanctions from the world’s most powerful nation, the USA.
“If the office of the ICC prosecutor is not to be seen as just the legal arm of NATO, it must devise an equally robust response in other country situations it is supposed to be investigating,” wrote Reed Body, of the International Commission of Jurists in Justiceinfo.net.
Body was writing in an article titled ‘The ICC at 20, Elusive Success, Double Standards and the “Ukraine Moment”’. He was counsel for the victims of the former dictator of Chad, Hissène Habré.
Body writes extensively on the Ukraine situation and argues that the justice mobilisation around the horrors visited on Ukraine is “heartwarming” and illustrates how justice can function when the political will exists. He adds, “But the long-term integrity and global acceptance of the ICC and the international justice framework require that they also take on crimes committed by powerful western actors, not just designated enemies.”
Most renowned case
The trial and conviction of Dominic Ongwen, a former commander of the Lords’ Resistance Army (LRA) is arguably the court’s most renowned case as it marks the milestone. Ongwen was sentenced to 25 years in jail in May 2021 after being convicted for 61 crimes comprising crimes against humanity and war crimes, committed in Northern Uganda between July 1, 2002 and December 31, 2005.
Ongwen’s case was said to be a much deserved coup for the court given that Uganda was the first country to refer a case to the ICC in 2003. This was a year after the Rome Statute came into force and established the ICC in 2002. Even when Ongwen’s defence team appealed against the conviction and sentence a few months later, the court has seized on the former child soldier’s case as a symbol of its fight for international justice. The Appeals Chamber held a hearing in February this year and the decision is pending.
It is at the ICC conference on July 01 that the assessments and perceptions of the court were well captured by people who have been actively involved in its work. First was Philippe Kirsch, the first president of the Court (2003-2009), who gave the keynote address.
“Many states welcomed the idea of a court that would target wrong doers forgetting that it would come after their own nationals,” Kirsch, the Chair of the Rome Conference said.
He added that the Assembly of State parties- the grouping of states that ratified the Rome Statute had “systematically prevented” the court from collecting evidence in a number of cases leading to more frustration for the top court. “The relative stagnation of state parties reflects the current state of the rule of law,” Kirsch told the audience.
The former president of the court bemoaned the state of multilateralism in the world and said he looked forward to the expansion of the global reach of the ICC.
Nothing reflected Kirch’s sentiments more than the decision of the U.S. in 2020 to impose sanctions on then-ICC Prosecutor Fatou Bensouda. The sanctions were in response to ICC investigations into Afghanistan and Palestine where the U.S. military has been actively involved.
Then U.S. President Donald Trump was disdainful of multilateral institutions like the ICC and although he is no longer in office, his move on the ICC left lasting damage to the court and the environment in which it operates.
“The world is more fragmented than it has ever been. That should be an excellent reason for the court to thrive,” Kirsch said. He hoped for improved national legislation and political will for the effective functioning of the court and that it can remain the court of last resort.
Angela Mudukuti, lawyer and Senior Legal Adviser at the Global Justice Center, chaired the session titled ‘From the crimes to the courtroom: preliminary examinations, investigations and confirmation of charges’ in a discussion that highlighted the complexities of the Office of The Prosecutor (OTP).
“Preliminary investigations and examinations play a big role in how the ICC is perceived,” Mudukuti noted. She listed questions participants needed to ponder: Is the ICC one sided, is it a particular crime always being investigated or is the judicial arm of the court bearing a lot of influence?
She also re-echoed the criticism of the court as too slow, investigating one side of the conflict, and failing on Sexual and Gender Based Crimes.
A few years ago, the ICC hired an Independent Expert Review which pointed out similar challenges: big case load, lack of timelines and benchmarks etcetera.
However, Mudukuti, a Zimbabwean national, whose country signed the Rome Statute but is yet to ratify it, said the ICC has a number of achievements it can toast to on its 20th anniversary. She cited “thousands of reparations, a more geographically diverse docket, more constructive engagement and use of modern technology in the investigation of crimes.”
It was the latter point on which Karim Khan, the court’s current prosecutor, spoke. “We should use modern technology to separate the wheat from the chaff either in an incriminating or an exonerating nature.”
Khan, a prosecutor with a long resume, said the techniques used to collect evidence from the Balkans for the International Criminal Tribunal for the former Yugoslavia (ICTY) cannot be used in latter day investigations.
Khan who worked at the International Criminal Tribunal for Rwanda (ICTR) and Special Tribunal for Lebanon, emphasised to the congregation at The Hague the importance of non-testimonial evidence with the prevalence of smart phones and video footage in crime scenes everywhere. “We cannot use analogue means to fulfill a very difficult mandate,” Khan remarked.
Other speakers included the Registrar of the ICC, the President of the Assembly of States Parties to the Rome Statute, the Chairperson of the Board of Directors of the ICC’s Trust Fund for Victims, the President of the International Criminal Court Bar Association, as well as leading academics, civil society experts and practitioners.
But perhaps where the court has faced the biggest opposition is in African countries where it has had the biggest cases. Legal analysts have argued that the ICC could most likely win cases where state parties are interested in cooperation. But the ICC has faced organised resistance; from President Uhuru Kenyatta of Kenya, former Côte d’Ivoire President Laurent Gbagbo, former Sudanese President Omar el-Bashir and former DR Congo warlord Jean Pierre Bemba.
The court indicted Kenyatta while he was campaigning for president together with his future deputy, William Ruto in 2012. The two rode to victory on the banner of fighting imperialism.
President Yoweri Museveni used the inauguration of Kenyatta in 2013 to lambast the ICC as a court engaged in “legalistic means” instead of dealing with an ideological matter- the 2008 post-election violence in Kenya. Eventually both cases were dropped because those facing charges were the most powerful people in Kenya.
South Africa refused to arrest Bashir after he set foot in South Africa while facing an ICC indictment for crimes committed against humanity in Darfur, Sudan. No African country has been willing to hand over Bashir and his case has virtually collapsed. Former Ivorian President Gbagbo was acquitted after a few years.