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With 17th July marking the World Day for International Justice, there’s no better time to clarify the importance of the International Criminal Court.
Q: What is the International Criminal Court (ICC)?
A: The simplest explanation comes from the ICC website itself: ‘the International Criminal Court (ICC) investigates and, where warranted, tries individuals charged with the gravest crimes of concern to the international community: genocide, war crimes and crimes against humanity’.
The ICC is based in The Hague, a city on the coast of Western Netherlands. The court was established by a treaty known as the Rome Statute, which came into force on 1 July 2002, and as of March 2016 there were 124 states that were party to the statute. The court has no retrospective jurisdiction, so it can only deal with crimes committed after the Rome Statute came into force.
Q: How does the court work?
A: The ICC itself has to rely on national police services to make arrests and then seek their transfer to The Hague. This can sometimes create problems as countries sometimes refuse to co-operate in arrests.
The prosecutor can begin an investigation only if a case is referred either by the UN Security Council or by a ratifying state. Both the prosecutor and the judges are elected by the states taking part in the court, and each state has the right to nominate one candidate for election as a judge.
Q: What cases has the ICC pursued?
A: In March 2012 the court made its first verdict, against Thomas Lubanga, the leader of a militia in the Democratic Republic of Congo. He was convicted of war crimes relating to ‘conscripting and enlisting children under the age of fifteen years and using them to participate actively in hostilities’ and was sentenced to 14 years imprisonment.
The most high profile person to appear before the court was the former President of Ivory Coast, Laurent Gbagbo. In 2011 Gbagbo was charged with murder, rape and other forms of sexual violence, persecution and ‘other inhumane acts’. After the 2010 presidential election, Gbagbo challenged the vote count, alleging fraud had taken place. However, Alassane Ouattara was declared and recognised as the winner by the majority of the country.
The Constitutional Council however, which is able to determine disputes and proclaim the results of presidential elections, declared Gbagbo had won. After a short period of civil conflict, Gbagbo was arrested by supporters of Ouattara. In November 2011 he became the first head of state to be taken to the ICC. An investigation was opened into acts of violence which occurred during the civil conflict, leading to the eventual charges against Gbagbo.
Another notable case is that of the charges of crimes against humanity against Kenyan President Uhuru Kenyatta in relation to his involvement with the post-election violence of 2007-8, in which an estimated 1,200 people died. The charges were dropped in December 2014.
Q: Which cases are still being pursued?
A: The leaders of Uganda’s rebel movement, the Lord’s Resistance Army (LRA), are wanted by the ICC. Joseph Kony, the leader of the LRA, is charged with 12 counts of crimes against humanity and 21 counts of war crimes, including the abduction of thousands of children. He has still not been found.
There is also an outstanding arrest warrant for Sudanese President Omar al-Bashir, the first against a serving head of state. Bashir faces three counts of genocide, two counts of war crimes, and five counts of crimes against humanity, and remains at large today. His crimes were allegedly committed roughly between 2003 and 2008 in Sudan. When he attended an African Union summit in South Africa in 2015, a South African court ordered that he be prevented from leaving the country while it be decided whether he should be arrested under the ICC warrant. Unfortunately, the South African government allowed him to leave.
Another noteworthy open case is the preliminary investigation opened in 2015 into the 2014 Gaza conflict. The Palestinian Authority submitted evidence to the court of what it claims were war crimes committed by the Israeli military.
Q: What controversies have there been surrounding the ICC?
A: The African Union in particular has criticised the ICC for its focus on Africa. In the eleven year history of the court, it has only brought charges against black Africans, creating an alleged African bias from the ICC. The ICC itself denies any bias, pointing out that some cases were self-referred, such as the LRA in Uganda.
There is some controversy over the fact that the United States is not part of the treaty. During negotiations, the US argued that they feared its soldiers might become the subject of politically motivated or frivolous prosecutions. Although Bill Clinton eventually signed the treaty as one of his last acts as president after safeguarding measures were introduced, Congress never ratified the act.
The Bush administration adamantly opposed the court, and at one point threatened to pull its troops out of the UN force in Bosnia unless they were given immunity from prosecution by the ICC. In 2002 the UN Security Council voted to give US troops a 12-month exemption from prosecution to be renewed annually. In June 2004, however, the Security Council refused to renew the exemption after pictures of US troops abusing Iraqi prisoners came to light.
Some countries, such as Egypt, Iran, Israel and Russia have signed the treaty but remain dubious and so refuse to ratify. Others, such as China, India, Indonesia, Pakistan and Turkey have never signed the treaty. It is therefore unlikely that alleged crimes against humanity in those states will be pursued.