Created to punish perpetrators of the world’s serious crimes, the International Criminal Court is yet to live up to its promise. The ICC’s focus on situations in Africa and its unwillingness to prosecute powerful violators of human rights and humanitarian law suggests that other forces are infl uencing its functioning.
The South Asia Human Rights Documentation Centre is located in New Delhi.
Established in 2002 with the purpose of punishing individuals who commit serious crimes that cannot or will not be addressed at a national level, the International Criminal Court (ICC) can assert jurisdiction over crimes against humanity, genocide, war crimes, and, as of 2017, crimes of aggression.1 Cases come before the ICC in three ways – (1) a referral from a state that is a signatory to the ICC statute; (2) at the initiative of the ICC’s prosecutor; (3) or from the United Nations Security Council (UNSC). In the first two, the state in which the crime was perpetrated or the accused’s state of nationality must be a party to the ICC statute. A state which is not a party to the ICC statute may consent to the court hearing the case on an ad hoc basis. If the UNSC refers a case to the ICC, the court has jurisdiction regardless of the state involved being a party to the ICC statute.2
Eighteen cases from eight states have been brought before the ICC. Of these, two were initiated by the prosecutor, four via state party referrals, and two from UNSC referrals. All eight states in which prosecutions are taking place are African. This has led to protest from African states, and the African Union (AU) holding that the ICC is targeting Africans (Africa Legal Aid 2011). It is alleged that the ICC is a tool for western powers to interfere. They point to the indictment of African leaders unpopular in the west, such as Muammar Gaddafi of Libya, President Omar al-Bashir of Sudan, and President Uhuru Kenyatta of Kenya, as evidence. It is claimed that there are greater atrocities being committed by major powers and their allies but these enjoy immunity from criminal proceedings.
As a Political Tool
The ICC recently came under fire for indicting Kenyan President Kenyatta. Kenyatta is expected to stand trial in July 2013. He has been charged with crimes against humanity.3 The crimes relate to his alleged role in the ethnic violence after the 2007 Kenyan elections.
At Kenyatta’s inauguration, Yoweri Kaguta Museveni, president of Uganda, held that the violence during the 2007 election should be dealt with by Kenya, not some international judiciary. Museveni claimed that the ICC had become a tool for western powers “to install leaders of their choice in Africa and eliminate the ones they don’t like” (Museveni 2013). Museveni’s record on human rights is not blemish-free, and there are allegations that he too has used courts to play politics.4 But it would be a mistake to see his comments merely as self-serving. He reflects a broad sentiment among African leaders that the ICC is not acting in the interest of Africans. This sentiment was borne out recently when AU Chairman Hailemariam Desalegn, prime minister of Ethiopia, accused the court of “some kind of race hunting” (Al Jazeera 2013).
Courtenay Griffiths, chief defence counsel for ex-Liberian President Charles Taylor at the Special Court for Sierra Leone, wrote a scathing review of the ICC’s prosecution of Kenyatta in the London newspaper, The Telegraph, titled “The International Criminal Court Is Hurting Africa”. Griffiths (2012) argued that the Kenyatta case was motivated by British antipathy to the Kenyan president.
Britain does not want Mr Kenyatta to be President of Kenya. It sees its interests as best served through the election of Mr Odinga in the forthcoming contest.
Griffiths wrote nine months before the election, and claimed that the UK’s hostility towards Kenyatta and its support for the ICC’s indictment was an example of the ICC being used as a “vehicle for its primarily European funders, of which the UK is one of the largest, to exert their power and influence, particularly in Africa”.
ICC and the Impunity of Power
The history of the ICC demonstrates a highly selective choice of who and, more importantly, who not to prosecute. It stretches credulity to believe that crimes similar to those in the African states have not been committed elsewhere. By the end of 2012, the office of the prosecutor received 9,717 communications alleging crimes across the world.5 Evidently, many of the alleged crimes did not meet ICC criteria for initiating investigation or prosecution, but it would be absurd to assert that many cases which occurred outside Africa were not worthy of the court’s jurisdiction.
The presence of underlying political interests precludes the court’s involvement in many instances. Without understating crimes committed in Africa, questions must be asked about criminals from non-African states not being brought to justice.
The ICC would have a strong case against Bashar al-Assad as well as many of the groups opposing him. The United Nations (UN) reports that in the past two years 70,000 people have been killed in the country’s civil war and UN High Commissioner for Human Rights Navi Pillay has described Syrian President Bashar al-Assad as a “war criminal” (Holden 2013). Despite Pillay and 58 states calling for the trial of Assad, the UNSC has not responded (Sands 2013). While five members of the UNSC support such action, Russia and China, both with veto power, have prevented the council from acting (The Hindu 2013).
Israel and Palestine
Over the last four years, UN human rights investigators released two reports indicating that Israel may have perpetrated war crimes against Palestinians.6 However, no action has been taken by the ICC in spite of repeated calls from Palestinians.
In 2009, Palestine attempted to formally recognise the jurisdiction of the ICC to consider acts committed on Palestinian territory since 2002 (Palestinian National Authority 2009). The ICC concluded that it could not consider cases as it had no jurisdiction over Palestine. The court determined that it was for relevant bodies at the UN or the Assembly of States Parties of the ICC to make the legal determination whether Palestine qualified as a state for the purpose of acceding to the ICC statute. However, the office of the prosecutor stated that the conflict in Palestine could be considered if the UNSC referred the matter (Un Kim 2013). No referral has been forthcoming. Given the US veto on the UNSC, this is hardly surprising.
The circumstances of Palestinian nationhood recently changed. In November 2012, Palestine was confirmed as a non-member observer state by the UN General Assembly (UNGA). This led Fatou Bensouda, the ICC prosecutor, to state that as the UNGA had determined that Palestine was, indeed, a state, “the ball is now in the court of Palestine”, “Palestine has to come back”, and “we are waiting for them” (Whitbeck 2013). If the Palestinians do move ahead with their original plans to ratify the ICC, close attention will need to be paid to whether the court is capable of exercising independence.
In 2002, the Gujarat riots in India led to the death of 2,000 (mainly Muslim) women, men and children. In 2012, Amnesty International reported that 10 years later very few perpetrators had been brought to justice by Indian courts despite widespread suspicion of the local government’s complicity in the deaths (Amnesty 2012). Under the ICC statute, a case is admissible if the state in whose territory the crime took place is genuinely unwilling or unable to carry out the investigation or prosecution [Article 17(1) (a)]. Article 17 was invoked in the cases of Gaddafi and Kenyatta, despite the willingness in both their countries to open investigations. Irrespective of whether the ICC is correct in its assessment that the circumstances in Libya and Kenya warranted intervention, it is striking that no move was made to open investigations in India, where 10 years have produced only reports, badly biased prosecutions, and no justice for the victims (Amnesty 2012). It is noteworthy that the allegations against President Kenyatta of organising and inciting ethnic-based violence bear strong similarity to those in Gujarat.
Sri Lanka is a glaring example of the limits of the ICC. Numerous organisations have alleged war crimes by both the Sri Lankan government and the Liberation Tigers of Tamil Eelam (LTTE).
In a 2010 report, “War Crimes in Sri Lanka”, the International Crisis Group (ICG) stated that it possessed evidence of intentional shelling of civilians, hospitals, and humanitarian operations, all of which constitute war crimes and crimes against humanity (ICG 2010). Likewise, a 2011 report by a UN panel of experts found credible allegations of war crimes and crimes against humanity (UNSGE 2011). These allegations pointed to crimes on behalf of the government, including murder, mutilation, cruel treatment and torture, rape, attacks on civilians, attacks on medical and humanitarian objectives, starvation of population and denial of humanitarian relief, and enforced disappearances.
If this was not enough to draw the attention of the ICC, Sri Lanka refused to pursue anything remotely resembling an impartial investigation. It rejected the UN experts’ report as “seriously flawed” and insisted that its own euphemistically titled “Lessons Learnt and Reconciliation Commission” (LLRC) was adequate to the task (Haviland 2011). This ignored the finding in the experts’ report that the LLRC fell far short of international standards due to its bias and refusal to address any serious violations during the later stages of the war. Moreover, the government centralised all power in the exec0utive and removed the last remnant of judicial independence through the impeachment of the chief justice (ICG 2013). If there was ever an example of a government unwilling, let alone institutionally incapable, of carrying out the investigation or prosecution of war crimes and crimes against humanity, surely this is it.
Sri Lanka is not a signatory to the ICC statute. It would take a UNSC resolution to initiate an investigation. This would be unlikely, given Russia, China and a strong clutch of other countries, including India, support the Sri Lankan government. In May 2009, 17 countries attempted to get the United Nations Human Rights Council (UNHRC) to investigate war crimes in Sri Lanka, but were voted down. Instead, the UNHRC passed a resolution commending the Sri Lankan government’s actions, condemning the LTTE, and ignoring all allegations of crimes by government forces (BBC 2009).
The US, by initially signing, though not ratifying, the ICC statute has sought to immunise its own nationals against the ICC while simultaneously supporting the court’s prosecution of others.
During the presidency of George W Bush, the US administration renounced its signature on the ICC statute and then set about forcing signatories to the treaty to sign bilateral agreements guaranteeing immunity of US nationals from prosecution by the ICC for crimes committed on their territory. The US did this primarily through both diplomatic pressure and the American Service-Members’ Protection Act (ASPA), which cut military aid to countries that ratified the treaty. Under Bush, the US suspended economic support to ICC state parties who refused their demands for bilateral immunity agreements. By 2008, such agreements had been accepted by approximately 102 governments (DiCicco 2009).
In 2002, the US almost brought the Bosnian peacekeeping mission to a halt when it refused to renew its troop commitment unless its peacekeepers were immunised from prosecution before the ICC. According to the BBC, the US feared that its troops could be made vulnerable by unjustified accusations of war crimes by enemies (BBC 2002). A last-minute compromise was hammered out whereby the UNSC issued a resolution that peacekeepers of non-state parties to the ICC, which included the US, were exempt from prosecution. The legality of the resolution was questionable (Stahn 2003). It was, in fact, a compromise from the original position of the US, which was to give the permanent members of the UNSC, including itself, the right to veto any prosecution by the ICC (BBC 2002).
US hostility to the ICC notwithstanding, it was willing to countenance the actions of the court when it suited its interests. In 2007, both the State Department and Congress supported the ICC’s prosecution of war crimes in Darfur (AMICC 2011). More recently, the Barack Obama administration not only voted in favour of referring the situation in Libya to the ICC, but also co-sponsored the resolution. Admittedly, it has taken a more cooperative approach to the ICC, yet the same intractable resistance to actually being held accountable remains. Not only did US Ambassador-at-Large for War Crimes Issues Stephen J Rapp announce in 2010 that the US would not join the ICC in the foreseeable future, but the involvement of the US in the review conference on the ICC in Kampala, Uganda, in May-June 2010 resulted in the inclusion of an explicit exemption for non-state parties from prosecution under the newly-minted crime of aggression (MUSG 2010).
US and Drones
Drone attacks are being carried out by the US in Pakistan, Libya, and Yemen (Warren). Frequently causing civilian deaths, they offer no legal recourse for the non-combatants harmed (Roth 2013).
The Obama administration has failed to create a credible legal rationale for the strikes and has opened up the administration to a variety of international law complaints. Kenneth Roth, head of Human Rights Watch, lays out the troubled legal arguments in his article “What Rules Should Govern US Drone Attacks?” (2013). The administration continues to rely on an assumed right to attack terrorists around the globe. Arguments citing self-defence are weak as international law requires that there be an imminent threat posed before lethal force is used. Moreover, strikes are conducted against persons whose identity is unclear, but by their conduct deemed to be combatants. This creates a level of uncertainty unacceptable to international law as to whether legitimate threats or simply innocent bystanders are being targeted.
In Pakistan alone, there have been about 330 drone attacks, leaving 2,200 people dead, including 400 civilians (Gamage 2013). UN Special Rapporteur on Counter-Terrorism and Human Rights Ben Emmerson has announced the launch of an inquiry into the use of drones and has admitted that various strategies in which they are employed may constitute war crimes (Ackerman 2013).
It is no surprise that African governments are taking umbrage at the court’s focus on them. It must be acknowledged that the overrepresentation of African accused has some basis. Thirty-three African states chose to join the court and give it broad jurisdiction over violence within their borders while many other areas of the globe troubled by violence have not (Bosco 2013). Many African states that did join have a history of persistent internal conflict. As a direct result of this history, four of the eight states with cases currently before the court are there at their own request. A senior Rwandan official summed the situation well, “There is not a single case at the ICC that does not deserve to be there. But there are many cases that belong there, that aren’t there” (Bosco 2013).
Given these considerations, it is heartening that the office of the prosecutor is currently conducting preliminary examinations in Afghanistan, Colombia, Georgia, Honduras, and the Republic of Korea (Office of the Prosecutor 2012). If any of these investigations go ahead, it remains to be seen if the court can overcome the vested interests of major powers or if it will remain a court of “small fry justice”.
1 For more on offences covered by the ICC, see Frequently Asked Questions at http://www.icc-cpi.int/en
2 For more on the jurisdiction of the ICC, see Frequently Asked Questions at http://www.icc-cpi.int/en
3 Extensive information regarding the Kenyatta case is available on the ICC website at http://www.icc-cpi.int/en
4 See “Okwir Rabwoni, Africa’s Child Soldiers”, Daily Times, 30 May 2002, http://www.dailytimes. com.pk/default.asp?page=story_
5 For more on communications to the ICC, see “Preliminary Examinations”, http://www.icc-cpi.int/en
6 The first of UNHRC reports on Palestine and Israel is entitled “Human Rights in Palestine and Other Occupied Arab Territories” (2009) and focuses on Israel’s action in the Gaza War from 2008 to 2009. The second (2012) is on Israel’s use of settlements in the West Bank.
Ackerman, Spencer (2013): “UN Drone Investigator: If Facts Lead to US War Crimes, So Be It”, Wired, 29 January,http://www.wired.com/
Africa Legal Aid (2011): “The AU: Its Stance against the ICC and Impunity in Africa”, http://www.imanager.nl/
Al Jazeera (2013): “African Leaders Accuse ICC of ‘Race Hunt’”, 28 May, http://www.aljazeera.com/news/
AMICC (2011): “Chronology of US Actions Related to the International Criminal Court”, 4 March, http://www.amicc.org/docs/US%
BBC (2002): “Annan Condemns Bosnian Veto”, 3 July, http://news.bbc.co.uk/ 2/hi/americas/ 2091832.stm, viewed on 7 June 2013.
– (2009): “Colombo Hails UN ‘Diplomatic Win’”, 28 May, http://news.bbc.co.uk/ 2/hi/8071661.stm, viewed on 7 June 2013.
Bosco, David (2013): “Why Is the International Criminal Court Picking Only on Africa?”, Washington Post, 29 March, http://articles.
DiCicco, Lucia (2009): “The Non-Renewal of the ‘Nethercutt Amendment’ and Its Impact on the Bilateral Immunity Agreement (BIA) Campaign”, AMICC, 30 April, http://www.amicc.org/docs/ Nethercutt2009.pdf, viewed on 8 June 2013.
Gamage, Daya (2013): “UN Says: US Drone Strikes Violate International Law and Pak Sovereignty”, Asian Tribune, 18 March,http://www.asiantribune.com/
Haviland, Charles (2011): “Sri Lanka Rejects Secret UN War Report as ‘Flawed’”, BBC, 13 April, http://www.bbc.co.uk/news/
Hindu (2013): “Five Security Council Members Support Syria Referral to ICC”, 19 January, www.thehindu.com/news/
Holden, Michael (2013): “UN’s Rights Chief Says Assad Should Face War Crimes Probe”, Reuters, 16 February,http://www.reuters.com/
International Crisis Group (2010): “War Crimes in Sri Lanka”, 17 May, http://www.crisisgroup.org/en/
– (2013): “Sri Lanka’s Authoritarian Turn: The Need for International Action”, 20 February, http://www.crisisgroup.org/en/
Museveni, Yoweri Kaguta (2013): “Statement at Inauguration of HE Uhuru Kenyatta, Kenya’s President-Elect”, 9 April,http://www.scribd.com/doc/
MUSG (2010): “US Engagement with the International Criminal Court and the Outcome of the Recently Concluded Review Conference”, Mission of the United States, Geneva, 15 June, http://geneva.usmission.gov/
Office of the Prosecutor (2012): “Report on Preliminary Examination Activities 2012”, International Criminal Court, 22 November,http://www.icc-cpi.int/en, viewed on 5 June 2013.
Palestinian National Authority (2009): “Declaration Recognising the Jurisdiction of the International Criminal Court”, http://www.icc-cpi.int/en, viewed on 6 June 2013.
Roth, Kenneth (2013): “What Rules Should Govern Drone Attacks?”, Human Rights Watch, 11 March.http://www.hrw.org/news/2013/
Sands, Philippe (2013): “Referring Syria to the International Criminal Court Is a Justified Gamble”, Guardian, 16 January.http://www.guardian.co.uk/
Stahn, Carsten (2003): “The Ambiguities of Security Council Resolution 1422 (2002)”, European Journal of International Law, 14 (1), pp 85-104.
Un Kim, Sung (2013): “ICC Lacks Jurisdiction to Investigate Palestine War Crimes Claims: Prosecutor”, Jurist, 3 April,http://jurist.org/paperchase/ 2012/04/icc-lacks-
UNSGE (2011): “Report of the Secretary-General’s Panel of Experts on Accountability in Sri Lanka”, 25 April,http://www.un.org/News/dh/
Warren, Vincent (nd): “The 9/11 Decade and the Decline of US Democracy”, Centre for Constitutional Rights, http://ccrjustice.org/