by Thierry Cruvellier, ‘The New York Times,’ November 6, 2016
In just a few weeks, Burundi, South Africa and Gambia have announced that they would withdraw from the International Criminal Court, a permanent tribunal investigating war crimes, genocide and crimes against humanity. Since its creation in 1998, the I.C.C. has been hobbled by the refusal of major countries like the United States, China and Russia to subject themselves to its jurisdiction. But the recent defections by member states, on grounds that the court is biased and undermines peace, seem like an unprecedented blow to its legitimacy.
Yet even before the withdrawals were announced, the court itself was already trying to find a way out of African cases, and away from the types of wartime atrocities that have been its mainstay. It had begun to look into other forms of widespread violence, including in countries at peace, apparently in the hope that broadening its reach would quiet claims that it is prejudiced and widen its appeal.
The current crisis had been brewing for years. Of the I.C.C.’s 124 members, 34 are African states. The Office of the Prosecutor has sought to bring charges against 31 individuals since the I.C.C. began operating in 2002 — all of them African.
For their part, major powers like the United States, Russia and China are shielded from prosecution because they reject the court’s jurisdiction over them and can veto any referral to the I.C.C. by the United Nations Security Council. (Consent and referral are the two main methods by which an I.C.C. case can be opened; the prosecutor’s office may also initiate a case itself, but only in a member state.) Yet nonparties to the court have sometimes encouraged it to intervene in countries that also refuse to recognize its jurisdiction.
And the I.C.C., eager to gain recognition from powerful nations, has obliged with zeal. For example, it indicted President Omar Hassan al-Bashir of Sudan and Col. Muammar el-Qaddafi of Libya at the request of the U.N. Security Council. (Neither state is a party to the I.C.C.) The United States, China and Russia either voted for those referrals or abstained: Considering their own rejection of the I.C.C.’s authority over them, their decision not to veto the referrals can only be seen as a tacit — as well as opportunistic and hypocritical — endorsement of the cases.
This is one reason Mr. Bashir’s indictment alienated many African leaders. During the campaign for Kenya’s 2013 presidential election, Uhuru Kenyatta and William Ruto, two candidates who were charged by the I.C.C. for their alleged role in postelection violence in 2008, denounced the court as a tool of Western neocolonialism. Once elected, they refused to cooperate with the I.C.C.’s investigation and, the court claims, “interfered” with it. The case collapsed.
At the same time, major powers that instrumentalized the I.C.C. have then left it hanging out to dry. After the court opened the Sudan case, for example, governments that had long denounced Mr. Bashir’s regime — including those of the United States and several European countries — did nothing to help enforce the court’s arrest warrant against him and instead continued to engage his administration with soft diplomacy and conflict-management strategies.
Defenders of that approach argue that negotiations over humanitarian aid and peace talks took priority over seeking criminal accountability. But to others, the main and predictable effect was to defang the I.C.C. Nobody feared it any longer, and nobody respected it.
The court’s predicament was compounded by the mediocrity of some of its investigations, inefficiency — only five individuals have been tried in 14 years — a cumbersome bureaucracy and the haughtiness of some of its representatives. I.C.C. prosecutors have claimed to also be considering alleged crimes in Georgia, Colombia, Afghanistan, Ukraine and Palestine, but no concrete action has come of those preliminary examinations. Meanwhile, by some estimates, the court’s activities have cost at least $1.5 billion.
Could this change? With the I.C.C. facing mounting criticism and inching toward an institutional crisis, Fatou Bensouda, a Gambian national and the court’s chief prosecutor since 2012, recently announced a major policy shift.
On Sept. 15, Ms. Bensouda’s office put out a policy paper describing a new outlook: The court would also consider crimes against humanity relating to “the illegal exploitation of natural resources, arms trafficking, human trafficking, terrorism, financial crimes, land grabbing or the destruction of the environment.”
One such case concerns Cambodia and a raft of alleged crimes — including murder, illegal imprisonment and forcible relocations — said to have been committed in the course of widespread and systematic land-grabbing by state officials, military officers and businesspeople. Other possible files concern extrajudicial killings in Mexico and the activities of members of the Islamic State. (No formal investigation has been opened yet for any of these instances.)
In late September, the I.C.C. sentenced a former Islamic extremist from Mali to nine years in prison on charges of destroying cultural heritage — specifically, Muslim shrines in Mali’s ancient city of Timbuktu. With that case, Ms. Bensouda was further demonstrating her willingness to diversify the court’s mandate and focus on crimes that usually garner little attention, giving them — and hopefully also the court — more visibility.
The shift is remarkable. Not only is the I.C.C. beginning to move away from cases involving African states; it is also partly moving away from atrocities committed during war. The repositioning is at once modest and ambitious: Conflicts related to land use and ownership, for example, are a major source of social and political violence in many parts of the world, and they usually affect the most vulnerable populations, like minority groups and the poor.
Will this be enough to burnish the court’s reputation, and answer the charge that it has been biased?
Christine Schwobel-Patel, a senior lecturer at the University of Liverpool, thinks not. She has argued that the court’s rebranding may “further stigmatize the global South while protecting the interests of the military and economic powers of the global North.” As the I.C.C. tries to overcome one apparent bias, the argument goes, it may be falling prey to another, broader kind.
Perhaps, but in appearing to tackle abuses, like land grabs, that often are precursors for widespread violence, the I.C.C. might be able to buttress the fragile claim that its activities can help prevent conflict.
What’s more, the request for the I.C.C. to look into land-grabbing in Cambodia was driven by victims’ groups, whereas the court’s investigations to date were the result of requests by states or the United Nations. Were the prosecutor’s office to take on more files brought by victims or civil society, the I.C.C. would appear to act on behalf of victims’ rights rather than as a compliant tool of opportunistic political interests.
The I.C.C.’s new direction may not make its life any easier; in fact, it may cause even more parties to withdraw from the court. But it would make the institution seem more independent — and then any defections by member states, rather than appearing to expose the I.C.C.’s flaws, would only underline its newfound relevance.