By Salomé Wyns
Salomé Wyns is a recent graduate in International Relations and Politics at the University of Sheffield, UK.
February 2018 marked the twentieth anniversary of the Rome Statute which established the International Criminal Court (ICC). The ICC has, since 2002, taken up the daunting challenge of meting out international criminal accountability. As a permanent judicial institution, the ICC seeks to end impunity for the most serious crimes of international concern, namely genocide, crimes against humanity, war crimes and crimes of aggression (UN General Assembly, 1998). Since its implementation sixteen years ago, the ICC has faced a range of criticisms regarding its effectiveness and its alleged bias against African leaders. The purpose of this paper is to identify the factors contributing to the International Criminal Court’s lack of credibility –along the lines of impartiality and independence- and assess how these factors may hinder the process of conviction of perpetrators of mass atrocities. Through an analysis of the case of Kenya (2007-2008), this paper will argue that the ICC’s lack of credibility stems from inherent structural contradictions that limit the Court in its prosecutorial independence and impartiality, rendering it vulnerable to politicisation and manipulation by states, thereby enabling them to justify non-cooperation.
In recent years, the credibility of the International Criminal Court (ICC) as an impartial and independent institution has been challenged by African leaders, scholars and human rights advocates alike (Tiemessen, 2014: 444). The perception of the ICC as a credible institution by states and other international actors is crucial to its success, as the Court largely depends on the support of these actors. The focus of this paper, divided into four sections, will be on the ICC’s ability to safeguard its reputation as an impartial and independent judicial institution. The first section briefly provides a background of the ICC, defines the term ‘credibility’ and looks at the claim of inefficiency against the Court. The second section examines the ICC’s lack of police enforcement and its ties with the Security Council to argue that this association leads to politicisation. The third section focuses on the ICC’s case selection partiality and the bias and the double standards that stem from it. Finally, the fourth section turns to the case of Kenya to illustrate the negative effect of the ICC’s lack of credibility on state cooperation.
The Rome Statute was adopted by 120 states in July 1998 and entered into force in July 2002 (Wouters and Basu, 2009: 11). The implementation of a permanent international criminal court prosecuting humanity’s worst crimes constitutes a bold challenge to state sovereignty and was, therefore, likely to generate a certain degree of opposition (Bosco, 2012: 4). Since then, lengthy and costly trials resulting in few convictions have resulted in criticisms concerning the ICC’s credibility and efficiency.
The charge against the ICC
Before proceeding, it is necessary to define the word ‘credible’ in the context of this paper. In the case of the ICC, a credible institution would be independent and impartial, ultimately leading to efficiency (Gegout, 2013: 801). Indeed, if the perception of the ICC as an untrustworthy institution impacts its ability to convict perpetrators of mass atrocities, increasing that credibility depends on one hand on the ICC’s ability to act independently from states, and on the other, on its ability to deliver justice in a fair and impartial manner (Gegout, 2013: 800). However, one must be cautious not to make the assumption that the ICC’s conviction rate is entirely dependent on the Court’s level of credibility (see Davenport, 2014). Measuring the effectiveness of international institutions remains a complex challenge; as such, a number of factors can account for the ICC’s low conviction rate. Firstly, the Court only has territorial jurisdiction in the states parties to the Rome Statute and can only investigate crimes committed after 2002. This significantly limits the ICC’s ability to provide universal justice. Secondly, war crimes cases are extremely complex in nature and require time, since a delay in proceedings is essential to allow the truth to emerge (Whiting, 2009: 335). Moreover, a lack of cooperation usually generates delays in judicial proceedings and can lead to the complete collapse of a case, as with the case of Kenya (2007-2008). Finally, the ICC is a court of ‘last resort’ which means it can only intervene when national courts themselves lack the ability to prosecute perpetrators. As former prosecutor Luis Moreno-Ocampo, cited in Nichols (2016: 32), states:
‘as a consequence of complementarity, the number of cases that reach the Court should not be a measure of its efficiency. On the contrary, the absence of trials before this Court, as a consequence of the regular functioning of national institutions, would be a major success.’
One must also be mindful that the institution is fairly young and will only be able to build credibility over time (Cassesse, 1999: 145). Indeed, the creation of such court is truly revolutionary and changes at the international level happen incrementally. It is indisputable that the quality of justice the ICC delivers should continue to be scrutinised, as effectiveness is the only path for the Court to be sustainable. However, the ICC’s credibility should not only be determined by its conviction rate but by the legitimacy of the proceedings, and by the Court’s ability to uphold principles of independence and impartiality, characteristics which will be explored in the next sections. Nonetheless, it can be concluded that the perception of the ICC as an inefficient institution plays a role in undermining its credibility, as each failure undermines the Court’s ability to deliver justice in the eyes of the victims, as well as in those of the international community.
The politicisation of the ICC
This section will argue that the ICC’s dependence on external political actors allows special interests to permeate and influence the law. This dependence ultimately weakens the ICC’s credibility as an independent institution. Indeed, the Court is highly dependent on state cooperation as it does not possess any police force or effective means to enforce states’ cooperation (Kaye and Raustiala, 2016: 7). Whether it be to investigate on the ground, arrest suspects or provide evidence, cooperation from states is crucial. Vinjamuri (2014: 277) labels this phenomenon ‘the authority paradox’. On one hand, the ICC’s authority and credibility reside in the assumption that justice must be independent from politics. But on the other hand, the ICC is structurally dependent on states to enforce its mandate (Vinjamuri, 2014: 277). Although full cooperation with the Court in its investigations and prosecutions is required under Article 86 of the Rome Statute (UN General Assembly, 1998), the ICC’s authority has been blatantly defied by states on multiple occasions.
This structural weakness compels the ICC to seek assistance from powerful states that have coercive power (Kaye and Raustiala, 2016: 7). The challenge for the ICC therefore becomes to balance two opposing inclinations: restraining state power, while relying on their cooperation at the same time. Instead of enhancing the Court’s legitimacy and power, it has been argued that the United Nations Security Council’s (UNSC) special rights of referral under Chapter VII of the UN charter, as well as their right to defer proceedings in the interests of international peace and security under Article 16 of the Rome Statute, open the door for politicisation and double standards (Tiemessen, 2014: 454). This association reflects the strategic political constraints that entangle the UNSC and state parties’ self-interests. This was especially obvious in the early days of the institution when the prosecutor’s office avoided conflicts that involved major-power interests –the cases of Afghanistan and Palestine for instance- (Bosco, 2012: 78). As Bosco (2012) argues, even though major powers like the United States do not directly control international institutions, by adopting ‘marginalising’ or ‘controlling’ behaviours, powerful states can influence the Court. The United States has had a wavering position towards the Court, but some argue that, more recently, it has used the Court to target rogue states such as Sudan and Libya – neither of which are parties to the Rome Statute- (Mamdani, 2008). Particularly in the aftermath of NATO’s intervention in Libya, the proximity between the Security Council, state interests, and international criminal justice became too close for many of the ICC’s proponents. This has quickly resulted in allegations that the ICC had become associated with a Western military policy of regime change (Vinjumura, 2014: 284). Many now worry that the Rome Statute will be used to breach sovereignty through intervention (Mackie, 2012:138). The special privileges granted to a small number of powerful states by international institutions creates obvious tensions with a sovereignty norm that stipulates equal status to all states. The fact that the ICC is intertwined with the UNSC’s network of political and logistical support undermines its independence and ultimately is an important factor for the ICC’s loss of credibility.
An African bias?
The second factor resulting in the ICC’s lack of credibility is the selectivity in its case selection, which has resulted in an almost exclusive focus on African perpetrators. The mandate of the ICC is very ambitious, but a single institution cannot investigate all situations under its jurisdiction or prosecute the full range of criminal responsibility within them. Therefore, a degree of selectivity is necessary for the ICC to operate. However, the ICC’s apparent focus on Africa -every one of the 32 criminals ever indicted have been African men (Elsheikh, 2015)-clashes with its alleged global mandate. It is in this context that African leaders, such as Paul Kagame, have been very vocal, accusing the ICC of systematically targeting Africa whilst overlooking crimes perpetrated in other parts of the world (Mugabi, 2016). They argue that the ICC reflects a western bias, some even going as far as claiming that the Court is a tool of neo-colonialism (Kenyatta, 2013). According to that argument, the ICC is being used by western countries to exercise influence on the internal affairs of African countries. Mackie’s (2012) analysis of the ICC website’s language is useful to illustrate this argument. On the ICC’s website, fifty-five separate documents contain the word ‘barbaric’ whereas the word ‘savage’ appears forty-seven times in the context of human rights violations (Mackie, 2012: 134). These terms create a dichotomy of ‘us versus them’ and dehumanises perpetrators (Sagan, 2010: 16). The negative connotations of these words and the image of the external actor intervening to save helpless victims from heartless perpetrators seriously hearken back to rationalisations of colonialism. Such rhetoric strengthens African leaders’ argument that the ICC is a form of neo-colonialism institutionalised through international criminal law (Mackie 2012: 134).
However, the ICC’s focus on Africa can, once again, be explained by structural limitations. Firstly, as argued in the second section, the partnership between the ICC and the Security Council creates double standards. Many African countries do not have powerful protectors in the Council—unlike Syria, for example, where Russia has been blocking the ICC’s efforts to prosecute crimes committed there (Rothmyer, 2012). There is also the fact that many countries accused of human rights abuses (the United States, China and Russia amongst them) have refused to be a party to the ICC statute, making it unlikely that their alleged crimes will ever be prosecuted. It is therefore felt that the ICC is going after Africans by default (Rothmyer, 2012). This has resulted in a disengagement by African countries and leaders who feel unjustly targeted. The backlash first surged when an arrest warrant was issued against Sudanese President Omar Al-Bashir in 2009. The hostility between the Court and the African Union (AU) then reached new heights when ICC suspects, Uhuru Kenyatta and William Ruto, were elected president and deputy president of Kenya, and a potential massive pull-out from the ICC was considered.
There are also arguments against the potential bias of the Court. Firstly, considering that African States constitute the largest regional grouping of state parties, it was statistically more likely that prosecutions would arise from African states. Indeed, in the wake of the genocide in Rwanda, and given the long history of war crimes and impunity in the continent, African countries had a clear interest in joining an international criminal court. Secondly, judging the ICC to be more competent and impartial than their own national courts, many African countries have referred cases to the Court themselves. Hence, these referrals cannot be regarded as external interventions (Mendes, 2010: 168). Therefore, although the Court does reflect the double standards that are deeply rooted in global governance structures (Bosco, 2014: 189), the ICC’s case selection needs to be understood in the context of these limitations. Nonetheless, these allegations of racial bias and neo-colonialism, whether accurate or not, have significantly damaged the ICC’s credibility and hindered cooperation from African states.
The consequences: The case of Kenya
The forceful campaign led by ICC indictees Uhuru Kenyatta and William Ruto was designed to portray the ICC as an untrustworthy and biased institution and thus delegitimise its authority. This reflects the degree of politicisation involved in ICC cases and the negative effect it has on cooperation. In March 2010, the ICC opened investigations on six individuals for their involvement in the ethnically targeted violence that followed the 2007 Kenyan election (Mueller, 2014: 27). The post-election violence left thousands dead, injured and displaced (Claire, 2012: 641). However, the Kenyan government failed to deliver justice for victims. It was thus the first time a case was referred by the prosecutor himself (‘proprio motu’). Moreover, the judges and the prosecutor tried to stay away from Kenya’s domestic politics (Tiemessen, 2014: 456). However, despite these efforts to remain independent and impartial, rather than accepting the ICC’s authority, Kenyatta and Ruto joined forces to run for the presidency while campaigning against the ICC. Kenyatta employed a populist rhetoric to discredit the Court’s operations in Kenya and ultimately won the election. By recalling Kenya’s colonial past, Kenyatta managed to spin the charges into a powerful narrative implying that the ICC was a ‘toy of imperialism’ (Kenyatta, 2013). Kenyatta claimed before African Heads of State and Government that, since the Court’s budget is largely funded by the EU, ‘Western powers are the key drivers of the ICC’ and that ‘the threat of prosecution’ by this Court is being used as a tool to make ‘pliant states execute policies favourable to these [Western] countries’ (Materu, 2014: 221). Similarly, at the same AU Summit in October 2013, Kenyatta accused the ICC of ‘race-hunting’ Africans (Kenyatta, 2013). Consequently, whereas the African Union’s mediation process following the 2008 violence in Kenya was seen as a locally owned process, granted with support and legitimacy, those seeking to undermine the Court portrayed the ICC’s intervention as an externally driven process imposed by the West (Juma, 2009: 407).
Assessing whether or not the ICC has perceived credibility in Kenya and elsewhere in Africa is highly subjective, but some elements prove that Kenyatta’s campaign has clearly been effective in hindering cooperation with the Court. Indeed, in addition to building domestic support and winning the election, Kenyatta used his newly won platform as President to discourage the African Union from cooperating with the ICC (Mueller, 2014: 31). Between 2011 and 2012, Kenya aggressively lobbied African leaders to get support from the AU in their demand for a UN deferral of ICC investigations and their transfer back to Kenya’s domestic courts (Mueller, 2014: 31). Whilst their efforts were unsuccessful, Kenyatta’s campaign did resonate with the AU. In September 2013, a potential mass pull-out by African countries was even considered by the AU (Mueller, 2014: 32). South Africa and Burundi’s decision to withdraw from the ICC in October 2016 (Sieff and Mahr, 2016) marks another blow to the ICC’s deteriorating relationship with Africa. Cooperation with the Court has also been put at risk by the alleged attempts of intimidation of witnesses for the prosecution (Mueller, 2014: 33). Kenyatta and Ruto successfully postponed their trials until after they gained power. Finding themselves without witnesses, key documents, or political support, prosecutors had no choice but to withdraw charges in December 2015. In September 2016, the ICC issued a finding of non-cooperation to the ICC’s Assembly of States Parties. The failure of the case has resulted in the Kenyan victims feeling a ‘growing loss of faith in the ICC’ (Mueller, 2014: 38). Ultimately, justice for thousands is still to be delivered. Neither Kenya nor the ICC has met its responsibility to hold the perpetrators of war crimes accountable, showing yet again, that politics trumps justice. This attempt to undermine cooperation with the ICC can largely be attributed to the unique structure and jurisdiction of the ICC, which renders it vulnerable to the political interests of those who instrumentalise it. The case of Kenya highlights the ICC’s limited enforcement powers, especially when political power and non-compliance combine to threaten the law (Mueller, 2014: 38).
This essay has attempted to identify the causes of the ICC’s lack of credibility and its effect on the non-cooperation of states by examining the case of Kenya. It has been argued that structural weaknesses in the Rome Statute regime have limited the ICC in its independence and partiality, ultimately weakening the Court as a credible and effective institution. Without support and cooperation, the ICC will perpetuate the vicious circle of loss of credibility and will ultimately be less effective in meting out accountability and positively affecting conflict resolution. At its heart, the ICC reflects deep tensions between peace and justice, politics and law, and power and norms. It embodies strong ambitions and has a broad set of objectives, and balancing legal understandings and political interests, while maintaining credibility and support, will remain the ICC’s biggest challenge to ensure universal human security.
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