ANALYSIS: Is the ICC dead?

Why should Russia, Georgia or Israel cooperate with the ICC if countries who have joined the ICC have obstructed its investigations or pulled out?

October 26, 2016 02:43
2 minute read.
Omran Daqneesh

Young Omran Daqneesh, bloodied and dazed, was pulled from the rubble in Aleppo.. (photo credit: screenshot)

South Africa and Burundi are in the process of becoming the first countries to pull out of the International Criminal Court.

Is this a deathblow to the ICC? Obviously, the ICC is not going to disappear, but is this the beginning of a gradual process whereby it will be permanently relegated to the status of a first, well-intended global attempt at international criminal justice that just fell short?

On the one hand, last year the ICC moved into a new, state-of-the-art complex, which seemed to signify that after 14 years in business, enough of its founding states both approved of its work and were ready to invest in its future.

The ICC has also had some major victories of late in terms of convictions, and in the Mahdi Mali case the ICC made the first-ever conviction for war crimes in the destruction of historically significant buildings.

Moreover, ICC Prosecutor Fatou Bensouda has expanded preliminary examinations from the ICC’s more typical Africa cases into the higher profile Russia-Georgia and Israeli-Palestinian conflicts.

The ICC Prosecutor’s Office even pulled off a coup with a recent visit to both Israel and the West Bank – something that few international organizations have succeeded at.

Alex Whiting, one of the top commentator’s on the ICC, has pointed out that even if more African countries might leave, several have already committed to staying the course, meaning that an African or general exodus is unlikely, despite recurring accusations that the ICC is too focused on Africa.

That is the “glass is half-full” version, which focuses more on the ICC’s survival.

But the real question has always been whether the ICC could transcend the failure of the International Court of Justice, which basically only makes an impact when powerful countries don’t care that much about the issue.

That has been in doubt from the start, as certain countries, including the US, Russia and rogue countries, like Sudan, which the ICC would most likely go after, never joined the other 124 member countries.

But South Africa’s decision to leave, which was made after the ICC rebuked the government for allowing Sudanese President Omar al-Bashir to visit without arresting him, is a major blow.

As an ICC member, South Africa had an obligation to arrest Bashir, who has been accused of genocide.

The fact that it not only refused to arrest him, but reacted both to the ICC and its own supreme courts rebukes by pulling out suggests that countries will not cooperate with the ICC if it in any way compromises their own interests.

This follows what most acknowledge as Kenya’s obstruction of the ICC case dealing with war crimes committed during its own civil war, which it initially supported.

Later, when the ICC chose to focus on its two top leaders, however, the country had buyer’s remorse.

Why should Russia, Georgia or Israel cooperate with the ICC if countries who have joined the ICC have obstructed its investigations or pulled out? Why should any country cooperate, beyond where the ICC furthers that country’s interests?

The ICC could still be considered a success in that it is the first permanent, global criminal court, eliminating the need for ad-hoc temporary courts such as those in Rwanda and the former Yugoslavia.

But short of a major victory down the line, in a country that heavily dislikes the outcome, it appears that the ICC’s teeth have been blunted, if it ever had teeth.

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