Is International Criminal Court the best way to stop war crimes?

Apr. 26, 2012
Is International Criminal Court the best way to stop war crimes?
By Roy Gutman | McClatchy Newspapers

THE HAGUE, Netherlands -- ]

Operating out of a converted parking garage and a modern high-rise in the Dutch capital, the International Criminal Court has toiled in relative obscurity for most of its 10 years, apart from the occasional negative headline, such as when President George W. Bush decided to undo Bill Clinton’s decision to join it.

Then last month, a YouTube video suddenly catapulted the court to global fame. “Kony 2012” portrayed Joseph Kony, a Ugandan militia leader charged with abducting children and turning them into slaves and killers, as World Villain No. 1. The video’s star was the man who indicted him, ICC Chief Prosecutor Luis Moreno-Ocampo of Argentina, and he denounced Kony as a criminal who should be arrested.

“Joseph Kony was committing crimes for 20 years, and no one cared,” he said. “We care.”

For the ICC, which started work in July 2002, and until last month hadn’t completed a single case, the Kony video may have been great public relations – it had had 88 million hits through Tuesday – but it also was a display of the court’s impotence. Kony is still at large, despite the court’s 2005 indictment charging him with crimes against humanity. U.S. special forces troops dispatched to the Central African Republic haven’t been able to find him, and the aim of the video was to build public pressure on the U.S. and other governments to act.

In a historic case Thursday, the Special Court for Sierra Leone convicted Charles Taylor, the former president of Liberia, of aiding and abetting war crimes and crimes against humanity in arming rebel groups in neighboring Sierra Leone, receiving so-called blood diamonds in exchange. The United Nations and the Sierra Leone government set up that court, an ad hoc tribunal that’s separate from the International Criminal Court, and the verdict was the first of its kind against a former head of state since the Nuremberg tribunal after World War II.

But even with Thursday’s judgment, which followed a five-year trial, the question can be asked whether the ICC is the most effective way to deter the world’s most serious crimes: genocide, crimes against humanity and war crimes. Might political initiatives launched in sub-Saharan Africa, where so many war crimes have occurred, or at U.N. headquarters eventually render the ICC superfluous?

To date, the only suspects the ICC has indicted are government and militia leaders from Africa. In the first verdict the court ever reached, in mid-March, it found Thomas Lubanga, a rebel leader in eastern Congo, guilty of conscripting child soldiers.

A much bigger case will be that of Laurent Gbagbo of Ivory Coast, whose trial on charges of crimes against humanity is to begin shortly. Four senior Kenyan political figures also are to go on trial early this summer on charges of crimes against humanity, accused of helping to fan the violence after Kenya’s 2007 elections. Other than Kony, the court’s most prominent indictee is Sudanese President Omar al Bashir, who’s charged with genocide, crimes against humanity and war crimes in Darfur.

To an outsider, the court’s annual budget of 108 million euros ($142 million) and its 700 employees look big, and its plan for a massive permanent headquarters costing 120 million euros ($158 million), grandiose.

Could the court have accomplished more in its first decade? “It really takes time for a new court to take off,” said Navi Pillay, a former judge on the ICC and the ad hoc international tribunal on Rwanda who’s now the U.N.’s high commissioner for human rights. “It’s significant that in 10 years, without any mechanism of empowerment, they were able to secure the arrests of a number of high-ranking accused persons,” she told McClatchy.

She noted that it took the European Court of Human Rights six years to get its first case, and now it has a backlog of 60,000.

One reason for the ICC’s record is the absence of key powers from the list of nations that have signed the 1998 treaty that set up the court. The ICC has 121 state parties, which provide political and financial support and recognize its jurisdiction, the latest being Guatemala, but the U.S., Russia, China and Israel have refused to join.

“It is essentially ineffective because the major powers are not members,” said Yehuda Bauer, a historian and academic adviser to Yad Vashem, Israel’s memorial to the Holocaust, in Jerusalem. “The whole issue of international law is problematic,” he said. “The moment a country decides its interests are contrary to international law, they just ignore it.”

He gave as an example Israel’s policy of building settlements on occupied Arab land, which is “in so many words contrary to international law.”

That brings up a sore point for ICC observers.

Early this month, Moreno-Ocampo rejected a three-year-old request by the Palestinian Authority to become a member state so that the ICC could investigate the Israeli assault on Gaza at the end of 2008 for possible war crimes. Moreno-Ocampo cited the technical grounds that the U.N. General Assembly hadn’t recognized Palestine as a state.

The ICC is a relative latecomer to the scene of international justice, and when the ad hoc tribunals that preceded it – for the former Yugoslavia, Rwanda, Cambodia and Sierra Leone – close their doors, it will have the field to itself.

But the world’s horror over mass atrocities in Bosnia-Herzegovina and Rwanda, which gave birth to the ICC, also led to the creation of other international institutions, and while they operate mostly outside the public eye, they’re intended to deal with volatile situations before they explode into genocide and other crimes against humanity.

The United Nations now has an undersecretary-general whose job is to advise on the prevention of genocide – to sound the alarm if there appears to be a risk of genocide occurring anywhere in the world. Francis Deng, the Sudanese-born human rights champion, has held the post for the past five years and has focused on reminding sovereign states of their obligations to uphold human rights.

Another creation is the International Conference on the Great Lakes Region, a grouping of 11 east African countries that’s intended to raise awareness of genocide, rape and other atrocities that occur in war. Liberata Mulamula, the first executive secretary of the group, said the initiative was founded on the idea that countries themselves must take responsibility for making certain their internal conflicts don’t lead to major crimes.

“We committed ourselves to making the region genocide-free, by addressing the root causes,” she said of the countries in the group, which include Rwanda, Burundi and the Congo.

Sudan is also a member, though its leader, Bashir, is under indictment on war crimes charges. So far, Bashir’s main concession to the group is to allow a fact-finding mission to Darfur to determine who the perpetrators of the war crimes were, but he blocked the mission from visiting the states of South Kordofan and Blue Nile, where the Sudanese military is repressing restive populations. The report of the technical team won’t be published.

Still, Mulamula said the initiative was having an impact. “Five years ago, nobody expected that the Great Lakes region would be relatively quiet and peaceful,” she said. “For the first time, the Great Lakes region is not on the international agenda. If we continue and consolidate, we might have a completely different face on the region.”

Until then, Mulamula, a career diplomat, thinks the ICC is performing a useful role. “For people who have suffered mass atrocities, it is the only form of justice that can restore confidence in the international justice system,” she said. “It can be a big deterrent to whoever wants to commit crimes.”

She criticizes the ICC, however, for indicting only Africans so far, and even in those cases moving against a relatively small number of people. “In my view they should widen the net,” she said.

Bauer, the Israeli historian, has a different approach: convincing sympathetic governments to join a bloc at the United Nations that will press the major powers. “Regional conferences are extremely important and can create pressure on the major powers to change their ways,” he said. “A group of 30 to 40 countries at the United Nations, if it can be done, is much more persuasive than any delegation.”

At the ground level in Africa, however, there are many who view the ICC as the best immediate solution available.

“The general opinion in Kenya is that the ICC is the best thing for the country,” said Raymond Kitevu, a Kenyan consultant with the U.N.’s office for the prevention of genocide. “Impunity is the experience here. There have been clashes in the past, and no one’s ever been tried. The ICC will do the punishing. There will be a lesson. It is really worth having.”