It’s too early to count the ICC out

Two seemingly unrelated news stories made the headlines earlier this week. First, Kenyan authorities announced that they were charging four Somalis in connection with the October attack on the Westgate shopping mall. And Lakdhar Brahimi, the UN-Arab League envoy on Syria, announced that despite strenuous negotiations, the parties still had not agreed on a date or the terms of a potential peace conference in Geneva.

Neither one of these stories elicited much surprise from the commentariat. The Somali militant group alShabaab had previously claimed responsibility for the Westgate terrorist attack; and no credible observer believes the adversaries (or their proxies) in Syria are anywhere close to sitting down to hug it all out. But these narratives do have an unexpected common thread — the International Criminal Court (ICC).

Human rights advocates and humanitarian watchdogs remain appalled by the relentless catastrophe unfolding in Syria. It is now estimated that 40 per cent of the population, nearly nine million people, need humanitarian assistance. Several diplomats have used speaking slots at the current United Nations General Assembly to call on the Security Council to refer Syria for consideration to the ICC (one of the ways that a case can be brought before the Court). Among the various political and technical obstacles to such a referral is an ingrained belief by some stakeholders that doing so would jeopardise the thus far, non-existent peace process. And so, the ICC remains on the sidelines.

In Kenya, the Westgate tragedy has become an unanticipated lightening rod for a debate raging about the appropriate implementation of international criminal law. Both Kenya’s current president, Uhuru Kenyatta, and its deputy president, William Ruto, stand accused of crimes against humanity at the ICC, on charges relating to widespread violence that swept through Kenya after a bitterly contested presidential election in 2007. Mr Ruto’s trial has already begun, but his case was briefly suspended so he could return home to deal with the fallout from the Westgate attack. Mr Kenyatta’s trial was set to begin this month, but after some highly unorthodox lobbying by the African Union, the Court agreed to postpone it until February 2014. Kenya has been so nonplussed by the prosecution of its politicians that it is considering withdrawing from the Court. (This would not have any theoretical effect on the ongoing cases, but practically speaking, it is much harder to get non-member states to cooperate with the ICC.)

Like all international, multilateral organisations, the ICC is an imperfect institution, imbued with the weaknesses and idiosyncrasies of its founders (sovereign nation states), who may have noble intentions, but are primarily motivated by self-interest. The Court’s founding treaty, the Rome Statute, reflects the power struggles and internal wrangling that ultimately led to its adoption.

The ICC’s track record in the 12 years of its existence gives its detractors wide latitude in their criticism of its operations. (In ICC parlance, eight ‘situations’ have been examined, all regarding African countries; this has resulted in one conviction, of a Congolese warlord.) Cost overruns and procedural delays are commonplace; complaints have been made about crusading prosecutors; and critics decry what is perceived to be a patronising attitude of Western powers (i.e., the Court’s main funders) to benighted developing nations. Cynics point out that three permanent members of the Security Council (the US, Russia and China), who wield veto power over referral to the ICC, are, in fact, not party to the Rome Statute, and therefore, not subject to the Court’s jurisdiction.

While these observations are valid, they, too, easily disregard the extraordinary advances that are represented by the ICC’s very existence. The codification of long-standing international criminal norms into a binding treaty and the establishment of an impartial, transnational mechanism to adjudicate them, is a watershed moment in history — we are light years beyond the ‘victors’ justice’ meted out at the Nuremberg trials. For better or worse, no one is forced to join the Court — as an international convention, membership is at a country’s own discretion. And the ICC can only step in when a member state is unwilling or unable to prosecute the crimes within its jurisdiction.

Political realities of both the international and domestic kind may yet conspire to keep Syria and Kenya from meaningful consideration by the ICC for years to come, if ever. But the Court shouldn’t be marginalised because of some easily foreseeable growing pains. Now is the time for the international community to re-embrace the collaborative spirit that led to the ICC’s establishment in the first place and begin working toward its ultimate success.

Published in The Express Tribune, November 9^th, 2013.

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