Toothless ICC needs international community’s help

These are clearly not good times for international or multilateral bodies. The World Trade Organization ( WTO) is seriously hobbled by the refusal of the US to allow the nomination of judges to its dispute panel; Japan has tossed aside the International Whaling Commission’s ban on whaling; and the Paris climate accord remains barely worth the paper on which it was signed. Joining the list of failed or at least seriously troubled multilateral bodies is the International Criminal Court (ICC), which was set up with much ado as a global court to which criminals — notably powerful people such as heads of state or military generals, who are accused of committing crimes against humanity, including genocide and war crimes — could be prosecuted and punished.

Set up in 2002 and based in The Hague in the Netherlands, there have been 28 cases brought before the court so far, with eight people being convicted. However, over the past few years, it has faced several reversals and challenges to its authority from governments around the world. One of the biggest problems with the ICC is that, if governments do not wish to follow its rulings, there is little it can do. Being a fractious house, with leading countries following their own agendas, the ICC looks more and more like a toothless and declawed tiger.

The court has riled many African nations, which say — perhaps with some justification — that it seems to be an anti-Africa court. Of the 11 situations currently under investigation, 10 are in Africa, while the court has only begun preliminary examinations in countries like Iraq, Myanmar and Colombia.

But prosecution remains perhaps the biggest weakness of the ICC. This was highlighted most recently in the acquittal of former Cote d’Ivoire President Laurent Gbagbo, who was charged with crimes against humanity following a disputed 2010 election that left more than 3,000 dead. Gbagbo was arrested in 2011 following a raid by French and UN forces. He became the first former head of state to be tried by the ICC, marking a high point for the body.

Gbagbo appeared before the ICC for the first time in 2011 but, more than seven years later, on Jan. 28, the judges cleared him of all charges and ordered him to be released immediately. The judges said that the prosecution had failed to demonstrate the “existence of a common plan to keep Mr. Gbagbo in power.” The court also said that the prosecution had failed to demonstrate that public speeches by the former president constituted ordering or inducing the crimes that he was charged with.

While the ruling was cheered by several of Gbagbo’s supporters, others, mainly victims, were disappointed by the failure of the prosecution.

Gbagbo’s is not the only high-profile failure of prosecution at the ICC. In June 2018, barely six months before Gbagbo’s release, the ICC also freed former vice president of the Democratic Republic of Congo, Jean-Pierre Bemba, who had been in its custody for over a decade and who had been convicted by the court’s trial bench of having failed to prevent his soldiers from committing murders, rapes and pillaging during the conflict between government and rebel forces. Bemba was sentenced to 18 years in prison, but the appellate bench held that the trial bench had erred in its ruling, as it had failed to appreciate limitations faced by Bemba in controlling his troops.

As with Gbagbo, Bemba’s acquittal was a major setback for the prosecution at the

ICC, which also failed to gain convictions for Kenyan President Uhuru Kenyatta and his deputy William Ruto. The two had been charged with crimes against humanity following electoral violence in 2007-08. However, in December 2014, in a major embarrassment, the prosecution dropped all charges against Kenyatta for lack of evidence, alleging that the Kenyan government had not cooperated and prevented the handing over of crucial evidence. The charges against Ruto were dropped in 2016.

The ICC today stands accused of being a court that can only successfully try and convict rebel leaders and not the heads of states or armies who still retain control. But, for this to change, the global community needs to play its role by helping the court in prosecuting successfully and taking action against the governments or leaders who do not cooperate with the ICC. The international community’s resolve and commitment to the court also becomes hollow when prominent countries walk away from any rulings that they don’t like.