ICC still retains power to shame accused perpetrators

I was part of a conversation in New York a few weeks back at the launch of a book entitled “Distant Justice: The Impact of the International Criminal Court on African Politics,” by Dr Phil Clark, who teaches at the University of London.

Dr Clark spent 11 years working on this book, and interviewing hundreds of people, both at the ICC and on the ground in DR Congo, and Uganda, which are the main countries the book focuses on.

For observers of the Court his findings are not surprising. But he brings out some interesting nuggets. For instance, though the ICC has always insisted that its focus on Africa--during the Luis Moreno Ocampo days--was largely from self-referrals, it turns out that the “self-referrals” by Uganda and DR Congo were the result of negotiations and compromises that Ocampo made with Yoweri Museveni and Joseph Kabila: He would focus on their opponents, and give the two dictators a free pass!

Apparently, the Court needed some “quick wins” and thought Africa would be easy pickings. Of course, the latent racism that informed the prosecutor’s decision to imagine that Africa would be “easy” was exposed when Uganda and DR Congo run rings around Ocampo that continue to haunt the Court.  

And it was similar convoluted thinking—underestimating the guile and ruthlessness of African politicians--that led to the absolute messing up of the Kenya cases by Ocampo. To be fair, the horrendous approach to witness protection and victims, handled by then Registrar Silvana Arbia contributed significantly to the debacle.  

The discussions in New York analysed the ICC 20 years since it started operating. Surprisingly, quite a few people urged patience and understanding for the clear weaknesses of the Court after two decades.

My personal favourite excuse was that these cases are complex and difficult so we should be less critical. Yet, it is precisely because war crimes, genocide, and crimes against humanity are complex, highly political and divisive that the ICC was formed! It begs belief that the raison d’etre for the Court is now the excuse for its incompetence.

Kenyan example

The solution to complex matters is better preparation, efficiency, and dedication. The ICC was specifically created to move beyond “victor’s justice” after grave atrocities, which has been the norm since the Nuremberg trials following the second world war. It is not so hard to get people in power to hold trials against their political or military opponents. What is harder, and the reason the ICC was created, is to hold accountable those in power or close to power. And on this score, ICC has done incredibly badly, with the Kenya cases the prime example. The Court could not even hold the Commissioner of Police accountable in what was probably the easiest case they had under the chain of command theory.

These discussions have been turning in my mind with the fall of Omar al-Bashir, who has a warrant of arrest against him by the ICC. And as expected, the calls to hand him over to the ICC have been loud and numerous.

Now that he is an ex-president, the ICC could probably do a better job, after learning—hopefully--from its other experiences. But it also depends on how much cooperation they can get from people who are still holding on to power in some form in Sudan, as well as some of the international players who likely hold a lot of information from their intelligence services.

If the ICC is to succeed, it better have all its ducks lined up, t’s crossed, and i’s dotted. And we all better be prepared for the backlash that the case will produce given that the crimes Bashir is accused of are political. On this we can learn from the Hissene Habre case, where the victims and survivors were front and center of the case, making it harder to politicize.

But as these calls were emerging, the Pre-Trial Chamber of the ICC then dropped a bombshell in declining the Prosecutor’s request to authorise an investigation of the situation in Afghanistan. This request was notable as any Afghan investigations would have touched on the role of the USA, which would have been historic and a huge move away from investigating just Africans.

The Pre-Trial Chamber made its decision to drop the Afghan cases following massive public pressure by the US, including the withdrawal of the Prosecutor’s visa to the US and public condemnation of the Court, which highlighted the Court’s perceived weaknesses.

Inadvertently or not, the judges of the ICC appeared to bend under pressure and have retained the impression that the ICC is about situations in weaker, less powerful countries.

The ICC clearly lost its deterrent power when Uhuru Kenyatta and William Ruto--aided by the Kibaki regime and its own incompetence--run rings around it. But it retains some power to shame accusedperpetrators, which is why Bashir’s current successors are reluctant to hand him over to the ICC.

Could this “fear of shame” be one of the reasons that our 2022 elections are looking to be almost a matter of life and death?

- The writer is former KNCHR chair. [email protected]