De­fec­tions put trou­bled global court onto docket

The Washington Times Daily - - FRONT PAGE - BY PATRICK COSTELLO

BERLIN | It’s an un­usual trial. The court it­self is in the docket, and the de­fense isn’t go­ing well.

The Hague-based In­ter­na­tional Crim­i­nal Court, launched at the turn of the cen­tury as an am­bi­tious ef­fort to bring in­ter­na­tional jus­tice to states around the world, has been buf­feted by a series of blows, in­clud­ing ris­ing crit­i­cism from ma­jor pow­ers and high-pro­file de­fec­tions from smaller coun­tries that say the ICC is bi­ased against them.

The ex­its of Bu­rundi, Gam­bia and South Africa in Oc­to­ber and the threat­ened pull­outs of Kenya, Namibia, Uganda and oth­ers from the court’s ju­ris­dic­tion may re­flect less a prin­ci­pled stand over fair­ness than a fear of pros­e­cu­tion. But in­ter­na­tional le­gal

schol­ars say the will­ing­ness of mem­ber states to take the dras­tic step of leav­ing al­to­gether is a ma­jor blow to the court’s le­git­i­macy and long-term health.

“It is dam­ag­ing to the court’s rep­u­ta­tion if states with­draw,” said Andreas Schuller, a lawyer spe­cial­iz­ing in in­ter­na­tional crimes at the Euro­pean Cen­ter for Con­sti­tu­tional and Hu­man Rights in Berlin. “If you look into the rea­sons why be­hind their de­ci­sions, I think it’s most wor­ry­ing for the peo­ple in those states that their lead­er­ship is with­draw­ing.”

In a blog post­ing for For­eignPol­icy. com, In­di­ana Univer­sity in­ter­na­tional af­fairs pro­fes­sor David Bosco won­dered aloud whether the court was “crum­bling be­fore our eyes.” Each de­fec­tion, he said, re­duces the court’s abil­ity to take on cases down the line.

“Fur­ther de­par­tures would di­min­ish the court’s le­git­i­macy and limit the scope for fu­ture in­ves­ti­ga­tions,” he wrote. “Ab­sent a res­o­lu­tion from the U.N. Se­cu­rity Coun­cil — tough to get in the best of times — the court can only in­ves­ti­gate when states give it ju­ris­dic­tion over their ter­ri­tory and na­tion­als. Ex­it­ing states aren’t merely ex­press­ing dis­plea­sure; they are shrink­ing the court’s room to op­er­ate and un­der­min­ing the court’s claim to be a bul­wark against atrocities.”

Don­ald Trump’s up­set vic­tory in the Novem­ber pres­i­den­tial elec­tion sug­gests the ICC will not have a strong ad­vo­cate in Wash­ing­ton over the next four years.

The court was es­tab­lished in 1998 af­ter the vi­o­lent breakup of Yu­goslavia, and the geno­cide in Rwanda led to a cho­rus of calls for a mech­a­nism to pros­e­cute the crimes against hu­man­ity and other atrocities. That made the ICC the world’s first per­ma­nent war crimes court. Sim­i­lar pan­els had been es­tab­lished tem­po­rar­ily to han­dle spe­cific cases, such as the Nurem­berg tri­bunal that pros­e­cuted Nazis af­ter World War II.

Sup­port­ers said a per­ma­nent tri­bunal, which be­gan func­tion­ing in 2002, was needed to take over pros­e­cu­tion in war-torn lands or coun­tries where the ju­di­ciary proved un­able or in­ca­pable of han­dling cases. For the U.S., the re­la­tion­ship with the ICC was com­pli­cated from the start.

Pres­i­dent Clin­ton signed the Rome Statute treaty that cre­ated the court, but the Se­nate never rat­i­fied it af­ter bi­par­ti­san ques­tions arose about U.S. recog­ni­tion of rul­ings from jus­tices other than those on the Supreme Court. Other ma­jor pow­ers such as Rus­sia, China and In­dia, cit­ing their own con­cerns about sovereignty and the ex­po­sure of their ci­ti­zens and sol­diers to the ICC, also opted not to join.

Rus­sia ‘un­signs’

Pil­ing on the crit­i­cism, Rus­sian Pres­i­dent Vladimir Putin in Novem­ber said Moscow was “un­sign­ing” the found­ing treaty doc­u­ment set­ting up the ICC. Like the U.S., Rus­sia signed the found­ing treaty doc­u­ment but never for­mally rat­i­fied its mem­ber­ship.

Shortly be­fore the move, the Hague­based court con­cluded in a le­gal anal­y­sis that the Krem­lin’s an­nex­a­tion of Crimea from Ukraine amounted to an oc­cu­pa­tion. Also, hu­man rights ac­tivists have de­manded that Rus­sia’s airstrikes on civil­ian ar­eas of Syria in sup­port of Pres­i­dent Bashar As­sad be deemed war crimes.

“Un­for­tu­nately, the court failed to meet the ex­pec­ta­tions to be­come a truly in­de­pen­dent, au­thor­i­ta­tive in­ter­na­tional tri­bunal,” said the Rus­sian with­drawal state­ment, call­ing the court “in­ef­fec­tive and one-sided.”

The ICC has been busiest in Africa, where it op­er­ates all six of its field of­fices, but many on the con­ti­nent ar­gue that they have been sin­gled out un­fairly and lack the re­sources that Wash­ing­ton and Moscow have to fight back.

Zim­bab­wean Pres­i­dent Robert Mu­gabe has called for all African Union mem­bers to quit the court en masse. But African coun­tries are too di­vided over the court for that to hap­pen, an­a­lysts said.

“There is no one com­mon po­si­tion among the African states,” said Mr. Schuller.

Still, many Africans main­tain that the ICC is noth­ing more than a tool that suits the needs of pow­er­ful coun­tries. The is­sue came to a head this fall when Bu­rundi, South Africa and Gam­bia an­nounced within days of one another that they were leav­ing the ICC. Gam­bian In­for­ma­tion Min­is­ter Sher­iff Bo­jang at the time de­nounced the ICC as “an In­ter­na­tional Cau­casian Court for the per­se­cu­tion and hu­mil­i­a­tion of peo­ple of color, es­pe­cially Africans.”

Mr. Bo­jang and oth­ers said the court’s record of con­vic­tions proves their point: Since it be­gan hear­ing cases in 2002, the court has in­dicted a to­tal of only 39 in­di­vid­u­als — all of them African. All of the court’s out­stand­ing lit­i­ga­tion in­volves sub-Sa­ha­ran coun­tries ex­cept for cases in Ge­or­gia and Libya, ac­cord­ing to the ICC’s web­site.

African abuses

But a glance at the coun­tries that have with­drawn calls the African lead­ers’ crit­i­cism into ques­tion.

South African Pres­i­dent Ja­cob Zuma has in­sisted that pro­vi­sions in the ICC’s treaty con­flicts with the coun­try’s con­sti­tu­tion and rules on diplo­matic im­mu­nity, but Mr. Zuma has re­peat­edly butted heads with lo­cal judges over cor­rup­tion charges and im­pugned the jus­tice sys­tem in his coun­try.

Mr. Zuma “is op­posed to any strong ju­di­ciary in gen­eral, whether do­mes­tic or in­ter­na­tional,” said Mr. Schuller. “That is a gen­eral po­si­tion of a pres­i­dent who wants to avoid be­ing held to ac­count on cor­rup­tion and a num­ber of other is­sues.” Op­po­si­tion par­ties are now chal­leng­ing South Africa’s with­drawal in na­tional courts.

Bu­run­dian Pres­i­dent Pierre Nku­run­z­iza with­drew from the ICC while the court was in­ves­ti­gat­ing vi­o­lence in his coun­try af­ter Mr. Nku­run­z­iza scrapped term lim­its in or­der to seek a third term in of­fice.

Pres­i­dent Yahya Jam­meh of Gam­bia like­wise has been ac­cused of re­sist­ing the rule of law. Ten­sions have been run­ning high in the tiny West African coun­try since Mr. Jam­meh lost elec­tions this month af­ter more than 20 years in power. Af­ter first ac­cept­ing de­feat, the pres­i­dent is now threat­en­ing to an­nul the elec­tion re­sults.

The ICC dropped charges against Kenyan Pres­i­dent Uhuru Keny­atta, who was ac­cused of fo­ment­ing vi­o­lence against his po­lit­i­cal ri­vals in 2007 be­fore he be­came head of state. Al­though Mr. Keny­atta has yet to for­mally de­clare that he would pull Kenya out of the court, he said this month that Nairobi’s mem­ber­ship would have to be re­con­sid­ered given the ICC’s sup­posed lack of im­par­tial­ity.

“The Kenyan cases at the In­ter­na­tional Crim­i­nal Court have ended, but the ex­pe­ri­ence has given us cause to ob­serve that this in­sti­tu­tion has be­come a tool of global power pol­i­tics and not the jus­tice it was built to dis­pense,” he said in a speech mark­ing Kenya’s in­de­pen­dence day.

Court watch­ers say the ICC could have fo­cused more on crimes in nonAfrican states dur­ing its early years, but the court has made re­cent ef­forts to open pre­lim­i­nary in­ves­ti­ga­tions into cases such as the war in Afghanistan, the sus­pected torture of Iraqis by Bri­tish troops, and war crimes and hu­man rights vi­o­la­tions in Colom­bia, Ukraine and other non-African coun­tries.

Africans have praised some of the ICC’s rul­ings, in­clud­ing the ver­dict this sum­mer sen­tenc­ing an Is­lamic mil­i­tant for the destruction of UNESCO her­itage sites at Tim­buktu in Mali. The mil­i­tant was the court’s fourth con­vic­tion. The other three were from Congo.

Some Africans are happy that they have at least some re­course to jus­tice.

When the court opened the trial this month of Ugan­dan Do­minic Ong­wen, a for­mer com­man­der in Joseph Kony’s Lord’s Re­sis­tance Army charged with war crimes that in­clude us­ing child sol­diers and sex­ual slav­ery, lo­cal reli­gious and com­mu­nity lead­ers said they were grate­ful for the ICC.

“It is a mile­stone in defin­ing one way in the at­tempt to se­cure jus­tice and ac­count­abil­ity for the peo­ple of North­ern Uganda, and ul­ti­mately to help peo­ple rec­on­cile with their past and move to­wards peace,” the lead­ers said in a state­ment.

Still, Mr. Schuller said, it’s im­por­tant for wealthy and pow­er­ful coun­tries to voice their sup­port for the fledg­ing court.

“It’s a young in­sti­tu­tion which still needs to de­velop, and that al­ways takes a lot of time,” he said. “So it’s im­por­tant that other states step up and an­nounce their con­tin­u­ing sup­port.”

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