On Its 16th Birthday, Whither the ICC?

Today is International Criminal Justice Day to commemorate the adoption of the Rome Statute on July 17, 1998. Sixteen years after the international community joined together to fight impunity for the world’s worst crimes, the ICC has succeeded in convicting two warlords from the conflict in the DRC but finds itself facing new challenges that may undermine the effectiveness of the court for years to come.

Since the Rome Statute came into effect in 2003, the ICC’s work has been primarily focused on Africa. Even though this was often at the request of African governments, over time the accusation of bias was leveled against the court by the same governments that initially sought the court’s help. However, in taking up the case of Kenya’s 2007 post-election violence following failed domestic attempts to hold perpetrators accountable, the ICC found itself embroiled in controversy. Unlike most of the previous indictments handed down by the court which mainly targeted rebel warlords the court indicted Uhuru Kenyatta and William Ruto, two prominent Kenyan politicians who joined together to win the 2013 presidential election. The election served as a blow to the ICC’s credibility which now had to deal with two indicted politicians being given the approval of the Kenyan people in an internationally sanctioned election despite the crimes they were accused of.

Now serving as president and vice-president of Kenya, Kenyatta and Ruto wield considerable influence across the continent. This influence, along with general African discontent with the court, led to the African Union passing an amendment to the proposed African Court of Justice and Human Rights last month that grants sitting heads of state and senior government officials immunity from serious international crimes. Although the protocol only applies to the future African Court, the sentiment directly contradicts other international tribunals including the ICC. While Kenya has been giving the ICC a certain degree of cooperation, the new protocol strongly suggests that cooperation from any African government in future prosecution of government officials will be even more difficult to come, by leading commentator Michela Wrong to ask whether Kenya has destroyed the ICC.

Wrong points out the unintended consequences of the court’s troubles with Africa. Chief among them is that activists and civil society actors are now hesitant to call for ICC involvement in new situations such as the conflict in South Sudan and the Central African Republic. The backlash against the court along with its slow response in calls for reparations and protection for victims has diminished the authority of the ICC throughout Africa. When even victims are hesitant in the effectiveness of the court, it shows that the ICC may have a serious credibility problem.

That hesitancy seems to extend to the ICC itself. Although the ICC did heed calls for a preliminary investigation into possible crimes committed in Ukraine, there are doubts about whether anything will come from it. The renewed conflict between Israel and Gaza also raises questions about what the court is willing to investigate and what situations it still feels are too politically controversial to wade into. Meanwhile investigations in Colombia and Afghanistan continue to trudge along, leading to nothing yet after years of involvement by the ICC.

Already at least $1 billion has been spent on the ICC with little to show for it and the court increasingly seems behind the curve, both politically and judicially. The ICC still holds a lot of potential in fighting impunity but its short history demonstrates that the court needs to be more pro-active in asserting its authority and defending its credibility. As new challenges emerge, the court needs to be flexible enough to take them on and believe in their own strength. This capacity exists but it is still up to the ICC to fully realize it as the court continues to develop.