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Who's Afraid of the ICC?

by Karen Naimer, JD, LLM, MA on December 8, 2016

Russia’s recent announcement of its intention to withdraw from the International Criminal Court (ICC) follows similar threats of withdrawal from three African states: Burundi, Gambia, and South Africa. Kenya, the Philippines, and Uganda have also threatened to follow suit. These developments have triggered an outpouring of serious concern by human rights advocates. At last months’ Assembly of States Parties, an annual gathering of delegates representing states and NGOs participating in the ICC, leading African jurists warned against a mass withdrawal from the court.

The ICC, established in 2002, is a permanent institution intended to serve as the world’s court of last resort, providing access to justice for victims of war crimes, crimes against humanity, and genocide. The ICC was created to step in when countries are unwilling or unable to mete out justice locally for such atrocities. Because the majority of cases before the court concern situations in Africa, disdain for the ICC among leaders of some African states has been brewing for years.

But in truth, the rising critique of the ICC is not about bias; it’s about fear. Fear that the court is actually doing its job. Fear that heads of states may actually be held to account for violating human rights, disappearing civilians who protest against them, and occupying neighboring states. Indeed, Russia’s declaration comes a day after the UN General Assembly’s Human Rights Committee approved a resolution condemning Russia’s occupation of Crimea.

In the cases of Burundi, Gambia, and South Africa, a strong argument can be made that plans to withdraw from the court have not been driven by the hope to pursue justice locally, but rather to deny justice altogether. These states claim the ICC has a bias against Africa because so many of its investigations have focused on the continent. But such a charge is specious. Most of the cases before the court concern Africa because six of the ten investigations were instigated at the explicit request of the countries themselves. More needs to be done to support the court’s investigations of mass atrocities in other parts of the world, but alleging bias against Africa obfuscates rather than bolsters this criticism.

When contemplating the meaning of these impending exits from the ICC, it is critical that we also recall the importance of the court, both symbolic and real, for two groups: the victims of heinous crimes, and the domestic change-agents working tirelessly to reform the justice systems in their own countries and communities.

To be sure, the court took significant time to establish itself as a global institution; indictments, arrests, and convictions have proceeded slowly and faced hurdles, consuming significant funds along the way. And some high-profile cases have fallen apart. But, earlier this year, the ICC convicted former Congolese vice president Jean Pierre Bemba of war crimes and crimes against humanity for failing to stop his Movement for the Liberation of the Congo from engaging in a brutal campaign of rape and murder in the Central African Republic. His landmark conviction was the first at the ICC to recognize rape as a weapon of war.

As I have seen first-hand, it is precisely victories like the Bemba case that give victims and their families some degree of hope for an end to impunity in their countries. Local judges and prosecutors believe that if their domestic courts fail, the ICC – its imperfections notwithstanding – is there as a safety net. And, for the survivors, the ICC represents a promise: that, maybe not today, and maybe not tomorrow, but, someday, those who have inflicted terrible pain and suffering upon them will be held accountable for their crimes.

This message came home to me three years ago, when we at Physicians for Human Rights and the Brandeis Institute for International Judges brought a group of jurists from the Democratic Republic of the Congo to The Hague to meet with their counterparts from international criminal courts and tribunals to discuss the challenges of dealing with sexual violence cases.

On the last day of meetings, we visited the ICC. On the one hand, these national judges deeply appreciated the ambitious example of the court, and they were astonished to see Kenya’s Deputy President William Ruto in the dock, responding to charges of crimes against humanity for the post-election violence in his country in 2007-2008. On the other hand, the Congolese judges were devastated to hear the bleak outlooks of their ICC counterparts about the court’s future. If the ICC can fail – despite all of its resources and political power – they wondered how they might ever hope to succeed back in their own country.

A strong ICC is important far beyond the precincts of international justice. Victims of atrocities and those committed to reforming domestic justice processes also depend on a properly functioning international court. If the ICC is causing sitting state leaders to fear the consequences of their actions, then the court is doing its job. What is needed is not a diminished court but a stronger one, empowered and resourced to investigate cases everywhere.



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