Legitimate Justice or Institutional Bias: The International Criminal Court

Joseph Coffee

The International Criminal Court in The Hague (ICC/CPI), Netherlands. Photo source: Vincent van Zeijst via Wikimedia Commons

The International Criminal Court in The Hague (ICC/CPI), Netherlands. Photo source: Vincent van Zeijst via Wikimedia Commons

The last couple of years have seen the first successful convictions by the International Criminal Court (ICC). But with that success has come quite a lot of criticism. Over the twelve years in which the court has operated it has only ever produced two convictions and all of the cases the court has chosen to try have been from Africa. This has lead many African nations to claim the ICC has an institutional bias towards the continent, calling into question whether the courts legitimacy still stands and how the court continues to effectively continue administering justice.

In 2002 the ICC was set up as a court of last resort that would hear cases of genocide, crimes against humanity, and war crimes. Its signatories envisioned it as a supranational court that would hear cases other states would not or could not hear. The end game of which is presupposed on a variation of “nuclear deterrence”. The court believes that their existence and any convictions they hand down are enough to deter future offenses. But the problem with that thinking is: when the people you are prosecuting feel they are being unfairly focused on, this leads to an issue of authority. If they feel there is some sort of bias then in their minds the court is not legitimate. It becomes a political tool. Many African nations claim that the ICC is nothing more than a tool for the West to exert some new-age form of colonialism. Champions of the court claim that, yes, while the only two convictions that have been handed down were against Africans, the court has investigated other nations but for a variety of reason chosen not to bring those cases to trial.

Having investigated crimes in Colombia, Iraq, and Afghanistan the court has chosen only to try those from African nations, such as Kenya. In my opinion it has more to do with low hanging fruit then with actual justice for the victims. It is reasonable to assert that the crimes committed in these countries were of an enormously heinous nature. But are they somehow more important than mass genocides in South East Asia or war crimes committed in Yugoslavia in the 1990’s? Surely then there is some form of institutional bias. This is not to say any of the cases brought before the court are frivolous; such as the trial of Thomas Lubanga Dyilo, the alleged founder of the Union of Congolese Patriots, a political and militia group in the northeastern region of the Democratic Republic of the Congo. The group participated in massive humans rights abuses over almost a decade-long ethnic conflict that began as a fight over resources. In 2006 he was the first person to be arrested by the ICC and was charged with conscripting child soldiers for active use in hostilities. After a six year long trial, Dyilo was convicted in 2012 for war crimes.

The cases the court chooses to hear do serve a purpose and offer some closure to victims of horrible atrocities. However the conviction rate is so erratic and bogged down by bureaucracy that most of the accused just appeal their charges, dragging the process out as long as possible. This forces the court to spend more money to keep bringing victims and accusers to The Hague. The court wants to appear as fair as possible and this allows the accused to exercise their human rights in all manner of legal appeals, to avoid going to prison for even the most serious charges against them.

After 12 years and a billion dollars spent, the ICC has only produced two convictions. This conviction rate doesn’t exactly live up to the courts claim that they deter further offenses. Neither does the fact that the court has only gone after small time targets. The two convictions they have to their name were made on technicalities and smaller charges. So are we left with an expensive and spineless court whose arrest warrants are largely ignored, as is the case with Sudanese President Omar Al-Bashir?

Is it legitimate? Enough countries seem to think so, most of them European, but not Russia, China, or the United States, which raises the question of why they didn’t ratify the statute. Russia has signed but not ratified the Rome Statute, which created the ICC; and China feels that the ability of the court to judge another nations system of justice violates a state’s inherent sovereignty, a view shared by the United States, who has perhaps been the biggest critic of the court, refusing to ratify the treaty after they had signed it. The biggest complaint raised by US is that the judges should have experience in criminal prosecution and international law, a claim the ICC says would be too high of standards to meet. Therefore the United States feels that the court is under qualified to deal with such cases and in many instances refused to recognize its legitimacy.

To combat this, changes need to be made in order to preserve their ability and integrity to conduct justice. They will have to start taking on cases outside of Africa or they will never begin to be accepted by the broader world community. As it stands now the majority of funding comes from European countries. They need to make an effort to bring a more inclusive group into the fold and perhaps in doing so they can repair their reputation and strengthen ties with the international community. With a billion dollars spent and only two convictions this doesn’t seem sustainable in the long run. Without making some changes the court will remain nothing more than an expensive utopian experiment, whose authority is constantly undermined by criticism and overspending.

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