Having celebrated its 10th anniversary in July 2012, the International Criminal
Court is entering a critical phase which will test its staying
Last week, two significant events occurred in its cases against
alleged war criminals from the Democratic Republic of Congo
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
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
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
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
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
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
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.
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.
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