The ICC’s Rough December

It has been a rough month for the International Criminal Court. A week after deciding to withdraw the charges in the high profile case of Uhuru Kenyatta, the ICC’s Chief Prosecutor Fatou Bensouda appeared before the UN Security Council to inform them that the court will be suspending investigations into atrocities committed in Darfur due to a lack of cooperation by the Sudanese government, ICC member states and the UN.

Given the tumultuous history of the Darfur investigation, the decision is not surprising but still shocked many court observers. The reasons for the decision are outlined clearly in Bensouda’s report to the Security Council: nearly 10 years after they referred the conflict to the ICC with Resolution 1593, very little progress has been made. In the face of constant non-cooperation by the government of Sudan, the refusal of African and Middle Eastern states to enforce the arrest warrant against Sudanese president Omar al-Bashir, the lack of strong action by the Security Council and weak investigations by the joint UN-African Union peacekeeping force UNAMID it’s clear that the court has little power to stop new atrocities or bring those responsible for them to justice.

Coming so shortly after the collapse of the case against Kenyatta, the suspension demonstrates the complications that come from trying to prosecute sitting heads of state. The lack of immunity for heads of state was a major accomplishment during the treaty that created the court. But this advancement in international justice has thus far remained solely on paper. Even with an abundance of evidence pointing to the direct involvement of the Sudanese government in the conflict that has killed over 300,000 people and displaced 3 million, Bashir has been able to use his status as a head of state to manipulate attempts to prosecute him into a story of persecution. After the ICC issued a warrant for his arrest, Bashir openly defied the court by continuing to travel abroad, spinning the tale that not arresting him was a sign of solidarity against imperialist attempts to erode African sovereignty. Public pressure forced some governments to cancel appearances by Bashir, but the fact that it took grassroots pressure to force those decisions says a lot about the priorities of governments since the Rome Statute came into effect.

The suspension also may give insight into the usefulness – or lack thereof – in tackling conflicts as they occur rather than waiting for a conflict to end and applying justice retroactively. Many of the current cases before the court involve conflict that have ended, or at least simmered out. However the launch of the investigation into Darfur in 2005 and the 2009 indictment of Bashir came as the conflict dropped out of the spotlight but still raged on. Rather than encourage peace, the arrest warrants hanging over senior members of the Sudanese government gave them every incentive to dig in further rather than look for solutions. As the likelihood of prosecution would increase once they no longer had the mantle of state power, remaining in power has become a necessity and the indictments a possible bargaining chip in any future peace negotiations.

Bensouda’s announcement came the same day that Ugandan president Yoweri Museveni called on a mass desertion of the court by African states. Uganda, under Museveni, was the first state to refer itself to the ICC in 2003 for the conflict with the Lord’s Resistance Army (LRA) in Northern Uganda. However when the indictments against LRA leaders became a sticking point in long running peace negotiations, relations between the court and Museveni soured. Once the ICC started to focus on neighboring Kenya, Museveni was quick to join with Kenyatta in slamming the court as a Western tool for African oppression. Even with the withdrawal of charges against Kenyatta, the continuing trial of Kenya’s deputy president William Ruto in The Hague still serves as a sticking point for African leaders who now wish to protect sitting leaders and senior officials from prosecution against the worst international crimes.

Needless to say, it has been a bad month for the ICC. Some of the issues are the result of expectations that may be too high for such a young and untested institution, but others are the result of the court failing to get ahead of the political spin. Wanting to appear neutral and impartial is an important aspect in the administration of justice but it is also important to stand up for the principles that the ICC stands for. Failure to do so has led to a long simmering feud with several African states, which is now having serious consequences.  There are clear signs that everyone needs to step up if the ICC is to become the institution it was designed to be.