The recent indictment of Sudanese President Omar al Bashir has brought the role and work of the ICC once again into the spotlight. Footage of thousands of Al Bashir supporters protesting against the decision on the streets of Khartoum does beg the question – can the ICC do anything right? The court at Le Hague has frequently come under fervent attack, accused of ineffectiveness, irrelevance and hypocrisy. Debate surrounding the issue brings into focus a more general inadequacy in global affairs where, to put it simply, some war criminals are brought to justice while others are not. But then few would argue that men like Milosevic, Charles Taylor and DRC warlord Thomas Lumbanga ought not be held to account. The mandate of the ICC, as established under the Rome Statute of 2002, was to strengthen peace by providing justice. Yet even these objectives can prove competing, with many arguing that the indictment of Al Bashir will do little to promote peace on the ground in Darfur, in fact possibly triggering a greater level of violence in the region.
The ICC was created as an international court with the power to punish the most serious violations of human rights. Individuals responsible for atrocities and war crimes could be brought to justice by an international body in cases where their national justice systems are either unable or unwilling to do so. It was seen as a great success, symbolising the growth in strength of the human rights movement and a general appreciation that there should be an impartial and international means of prosecuting serious war criminals. So how did this optimistic and ground-breaking project end up being the subject of criticism and even arguments against its existence?
First of all the USA did not sign up to the ICC statute. This was hardly surprising, considering America’s strategies during the “war on terror” not to mention decades of dubious interventions from Latin America to Somalia, Afghanistan and Iraq. Added to this are the Bilateral Immunity Agreements (BIA’s) that the US has made with a number of countries which prohibit the surrender to the ICC of a very broad spectrum of persons associated with the US, even cutting off aid from countries which refuse to enter into these agreements. Israel signed the Rome Treaty initially but later backed out, citing concerns over the inclusion of occupation as a war crime under the ICC statute. Iraq decided to ratify the ICC in 2005 but later reversed the decision following pressure from the United States. China has opposed the court claiming that it interferes with the nations’ sovereignty.
So it was obvious from the outset that states could quite easily place themselves outside the remit of the ICC. This particularly so with powerful nations who are better placed to bargain and blackmail their way out of it. States party to the Rome Statute must co-operate with the Court and surrender suspects, as well as implement national laws to provide for this. States who are not party to the statute obviously need not cooperate in this way. So on the face of it at least, the more powerful the country the less accountable its war criminals are going to be, and this creates a huge setback for the ICC’s mandate of justice through accountability. It also left the court open to protest and criticism over its inevitable lopsidedness by those subsequently brought before it and their supporters.
In the seven years since the creation of the ICC, its focus has mainly been on Africa; specifically Northern Uganda, the DRC, the Central African Republic and Darfur. Public arrest warrants have so far been issued for thirteen suspected war criminals, four of whom are in custody awaiting trial. These four are Germain Katanga, Mathieu Ngudjolo and Thomas Lambanga of the DRC and Jean-Pierre Bemba of the Central African Republic. The trial of Lambanga began earlier this year. This seemingly exclusive focus on Africa has led to accusations of the ICC being yet another vehicle for western imperialism, and again hypocrisy, with such arguments being renewed with the recent indictment of Al Bashir. (although in must be noted that in three out of four of these cases the ICC prosecutor was called in at the request of the governments themselves). The vocal support of the United States for Al Bashirs’ arrest warrant only serves to legitimise this argument, for surely the US cannot opt out of the ICC and then support it if and when it suits them.
The other issue brought up by critics of the ICC is that by attempting to bring war criminals to justice it runs the risk of worsening situations on the ground. The threats of expulsion made by the Sudanese government to aid agencies over the past two days is seen by some as proof that rocking the boat can also cause greater human catastrophe. Or that if Al Bashir is arrested and tried before the ICC that this could lead to worsening violence or heightened attacked by militia in Darfur. The Rome Statute allows the prosecutor to refrain from action if it is in the interests of justice to do so, but should the court be effectively held to ransom by those it is trying to prosecute?
The arguments for and against the ICC are many and complex, and the wider issues these arguments raise are even more so. In fact the whole Darfur conflict has led to questions about humanitarian intervention, a concept still viewed with some optimism ten years ago but which has been discredited since America’s invasion of Iraq to the extent that it is widely viewed to be a cover for aggression and occupation. The indictment of Al Bashir for war crimes and crimes against humanity comes less than a month after Israel killed over 1400 people and injured thousands more in an aggressive war against Gaza. If one was to view such events at face value one would ask why punish some human rights violations and not others?
Perhaps however we should go back to basics. There is an internationally recognised court that gives authoritative legal opinion on certain acts which are inherently wrong. We are talking about the most grave violations of human rights and war crimes. Men that have been indicted by the ICC have evidence stacked against them which indicates they have been responsible for some of the worst crimes known to criminal law; massacre, mass rape, torture, recruitment of child soldiers and more. Few people could claim that these individuals legitimately deserve impunity. Yet at the same time the effectiveness of the ICC is dependent not only on bringing criminals to justice but also to be seen to be acting in a fair and balanced way.
The debate over the ICC is potentially infinite, and with enormous global political issues at stake. The pursuit of justice requires that all war criminals be held accountable for their crimes. The indictment of Al Bashir, or the trial of Lambanga or the arrest and trial of Taylor or Milosevic can only be seen as small steps on the road to justice. Perhaps the day will come that all victims of such crimes will see justice done, but that is a long way off.