Analysis: ICC on verge of playing in another league

Having celebrated its 10th anniversary in July 2012, the International Criminal Court is entering a critical phase which will test its staying power.

ICC 370 (photo credit: REUTERS)
ICC 370
(photo credit: REUTERS)
Having celebrated its 10th anniversary in July 2012, the International Criminal Court is entering a critical phase which will test its staying power.
Last week, two significant events occurred in its cases against alleged war criminals from the Democratic Republic of Congo (ex-Zaire).
German Katanga and Bosco Ntaganda were former Congolese army and militia commanders who fell from grace.
Congo surrendered Katanga to the ICC in 2007 after he killed UN peacekeepers, violated an arms embargo and committed other crimes.
Ntaganda surrendered himself to the ICC in disputed circumstances, possibly under pressure from a combination of Congolese and Rwandan backers and authorities.
The Congo case was one of the “easier” of the ICC’s eight all-African cases with Congo having agreed to ICC jurisdiction and cooperating with providing the individual defendants to the ICC.
The first ICC conviction for war crimes came in March 2012 against another Congolese defendant, Thomas Lubanga Dyilo.
The ICC is about to grow up, or at least start playing in a different league.
On March 8, 2011, the ICC issued summons against several military and political Kenyan leaders.
On Saturday, Kenya’s Supreme Court upheld the election of Uhuru Muigai Kenyatta as the country’s next president.
Kenyatta is accused of indirect co-perpetration of crimes against humanity, including murder, forcible transfer, rape and persecution.
In late 2007-early 2008, around 1,100 to 1,300 people were killed and between 350,000 and 600,000 people were displaced in Kenya following a disputed presidential election between leaders of two warring ethnic groups.
Kenya has cooperated overall, allowing six leaders from both sides of the spectrum to face charges before the ICC so far, with the cases against Kenyan political-military leaders coming out of dual political pressures from a state-sponsored independent commission which investigated the nation-wide mass killings and internationally by former UN secretary- general Kofi Annan, and the West more generally.
Until Kenyatta was elected president, all of the Kenyans under indictment had been leaders of a sort, but whether by choice or chance, the list of defendants had avoided the highest echelon.
On March 11, ICC Prosecutor Fatou Bensouda announced that she was withdrawing charges against Francis Kirimi Muthaura, another top Kenyan leader, essentially because all of the witnesses the prosecution had assembled had either been intimidated into silence, died or been tampered with in ways that compromised their credibility.
With charges also having been dropped against others previously, this already reduced the number of Kenyan leaders potentially on trial from six to three.
Kenyatta's lawyers are in the middle of procedural legal battles to get the ICC to drop charges against him as well.
The decision is outstanding, but even if the ICC stays the course with the case on a formal basis, and Bensouda at least is pushing to move forward, it is difficult to see Kenya voluntarily handing over its new head of state no matter the international pressure.
Former ICC prosecutor Luis Moreno-Ocampo in April 2012 decided to avoid one of the most controversial possible cases, after three years of legal debate, turning down investigating alleged Israeli crimes against Palestinians during Operation Cast Lead in 2008-2009 on the basis that “Palestine” was not a state and could not give the ICC jurisdiction of the cases.
Palestinian Authority President Mahmoud Abbas has been fanning the flames by taking a second crack at convincing the current prosecutor, Bensouda, to take the cases against Israeli military and political leaders in light of the UN General Assembly’s recognition of a State of Palestine in November 2012.
From one perspective, taking an “Israel-Palestine”- related case would be a step up for the court, finally moving it out of being stuck in Africa.
It would also be an answer to accusations which continue to multiply that, because the ICC has only filed cases against Africans, the ICC is a Western-neocolonial organization for oppressing Africans.
But the Kenyan case is instructive. Though the cases were technically selfinitiated by the ICC prosecutor, without full Kenyan cooperation, the cases probably would never have gotten off the ground.
They might have been filed without Kenyan cooperation anyway, as was done with a UN Security Council referral or directive to look into cases against Sudanese leaders, including President Omar al-Bashir.
But they might not have, and Sudan had a UN Security Council referral, which would never happen in the case of “Israel-Palestine,” where the US would immediately veto such a move.
Also, the Sudanese case has embarrassed the ICC because Bashir has ignored the international arrest warrant issued against him and most African states, including those recognizing the ICC, have publicly disclaimed any need to comply with extraditing him.
The reality seems to be that the ICC is still too young and fragile to successfully prosecute cases to the end of proceedings against leaders who are still in power.
It is not alone in terms of weak international tribunals being overpowered by political realities. A joint Lebanese-international-created and -sponsored independent tribunal has failed to arrest any of the major Hezbollah operatives who it has indicted for the assassination of Lebanon’s former president Rafik Hariri. And that from a tribunal which has the nominal backing of the Lebanese government.
Rather than ending impunity across the board, the ICC’s only real authority for the time being is likely to remain in Africa or other non-influential developing countries that use the ICC to try and dispose of mostly unwanted former leaders who have fallen from grace.
Whatever side of the debate one is on, it is hard to see the ICC jumping into the controversies between Israel and the Palestinians (without even getting into all of the unique legal obstacles to a case moving forward) or even somewhat less controversial arenas in the near future.