Weaknesses of Rome statute call for rethink of ICC’s future

Looking at how the Kenyan Na Sudan cases were run in the ICC it is easy to conclude that a sense of hubris was inherent in the decision-making process regarding the two situations. [File, Standard]

This week, justice activists around the world will commemorate the 20th anniversary of the Rome Statute which established the International Criminal Court (ICC).

The ICC traces its origins to reactions to the horrors of the conflict in the Balkans and in Rwanda, which led the UN Security Council to establish the two ad hoc tribunals, one for each of the two situations.

The success of the two tribunals, as well as the sentiment that decisions on justice should not be left to the whims of the Security Council, is what motivated negotiations in Rome that culminated in the ICC as a permanent criminal court.

While the Rome Statute was meant to represent a systematic attempt at prosecuting serious crimes of international concern that would avoid the caprice of international politics, the power that the statute gave to the Security Council to refer cases to the court and also to defer the investigation or prosecution of cases has ultimately proved a problem for the ICC.

Because the Sudan is a non-state party to the Rome Statute, it only became possible to refer the situation in Darfur to the ICC after a resolution of the Security Council in 2005. It is this referral that culminated in the arrest warrants in 2009 against President Omar el Bashir, the first warrant against a serving head of state.

Although the referral of the Darfur situation was widely viewed as justified, and as going towards meeting the justice needs of the Sudan, the country would immediately invoke the very Rome Statute in seeking a deferral of the prosecution of the case by the ICC.

Supported by the African Union, the campaign for the deferral of the Darfur situation was initially weak, but was greatly strengthened when Kenya, whose situation the prosecutor was to refer to the court the following year, also started seeking its own deferral.

In hindsight, Sudan’s request for a one-year deferral was modest and is something that the Security Council could have allowed without too much disruption to the intended prosecution.

Looking back at the paths that the Kenyan and Sudan cases before the ICC were to travel, it is easy to conclude that a sense of hubris was inherent in the decision-making process regarding the two situations, and was responsible for the eventually failure of the Kenyan cases, and the complications that the case against Bashir was to face. What else would explain the fact that the Security Council did not find it fit to make a formal decision regarding the deferral request by Sudan?

This failure left the Sudan and the AU feeling disrespected, and while this situation festered, the prosecutor of the court, in a first-ever exercise of his proprio motu powers, referred the Kenyan situation to the same court.

While the initial effect of referring the Darfur situation to the ICC was that it marginalised Bashir and turned him into a pariah, referring the Kenyan situation so soon after eventually provided Bashir with a much-needed common cause, as he was able to leverage Kenya’s much larger diplomatic effort in his own aid. In turn, Kenya would leverage the Darfur referral in aid of its own campaign against the ICC cases, in what became a mutually-reinforcing pact.  

The Kenyan cases, more than any other, have exposed the weaknesses of the Rome statute arrangements, including the foundational assumption that states will transcend national politics in giving cooperation to the ICC when it seeks to prosecute crimes committed within their territories.

The hubris by the Security Council and the prosecutor created a situation where the ICC commenced a case in Kenya before its efforts in the neighbouring Sudan had consolidated. These decisions badly underestimated the ability of both the Kenyan state and the African Union to fight back, as ended up being the case.

The aftermath of the Kenyan cases is an ICC that has been humbled by the pummelling it has received in the theatre of politics. While this is the case, and as evidenced by the horrific conflicts that are still raging around Africa, the need for justice has never been greater, but comes at a time when the kind of moral leadership that led to the establishment of the ICC is at its lowest.

In the wake of the disaster of the Kenyan cases, something has changed about the attitudes of the international community, and some kind of humility is now evident. However, the ability by African states to manipulate this new attitude to foster impunity in their territories is also evident and is a new source of concern.

Because of the sometimes-traumatic experiences of the ICC in the last two decades, the Assembly of States Parties as the highest organ of the ICC seems ill-suited for processing new decisions about the future of the ICC.

On the occasion of the 20th anniversary of the Rome Statute, the international community must think of an extraordinary convening, akin to the 2010 Review Conference in Kampala, where major stock-taking can take place, with a view to deciding on the next phase of the ICC. 

- The writer is Executive Director KHRC. [email protected]