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How effective is the International Criminal Court?


When U.S. president Barack Obama visited Kenya, his father’s homeland, in July he was greeted by Kenyan president Uhuru Kenyatta – a man who has been accused of crimes against humanity by the International Criminal Court.

The ICC, based in The Hague, is the court of last resort for prosecution of genocide, war crimes, and crimes against humanity. The Court has jurisdiction over crimes committed after July 1, 2002, when its founding treaty, the Rome Statute, entered into force.

As of this year, the Court has 123 states acknowledging its authority. Since it was formed, it has opened investigations in eight African states – Libya, Kenya, Sudan, Uganda, Mali, Ivory Coast, the Central African Republic, and the Democratic Republic of Congo.

Since the court has so far brought cases only against Africans, this has led to accusations of bias.

However, it is also conducting formal preliminary examinations in Afghanistan, Colombia, Georgia, Guinea, Honduras, Iraq, Nigeria, Palestine and Ukraine.

But its record is spotty. So far, the ICC has been unable to bring to trial, among others, President Kenyatta, Ugandan rebel leader Joseph Kony, Saif Gadhafi, son of the former Libyan dictator, and Sudanese president Omar al-Bashir.

Uhuru Kenyatta and his deputy, William Ruto, along with radio journalist Josiah Sang are accused of crimes against humanity for instigating ethnic violence in the aftermath of the disputed 2007 Kenyan presidential election.

An estimated 1,200 people were killed and as many as 650,000 were forced to flee their homes. Yet he and his henchmen remain free. Kenya has argued that a head of state should be exempt from prosecution for the duration of his term and so refused to cooperate.

The proceedings against Kenyatta were formally closed last December after prosecutors could not show that they had sufficient evidence to proceed, though the case against Ruto remains open.

Fatou Bensouda, the prosecutor, cited obstruction and witness intimidation as causes. But appellate judges at the court have now issued an order directing the trial court to re-examine one aspect of the case: whether Kenyatta’s government had actively obstructed the original prosecution.

The Lord’s Resistance Army, led by Joseph Kony, is a rebel group, which originated in northern Uganda. Rape, torture, and murder became its hallmarks. The ranks of the LRA were filled in large part by children who were kidnapped and brainwashed into service with the group.

Though increasingly isolated as he hides in disputed territory on the borders of Sudan, South Sudan, the Central African Republic and Congo, Kony has managed to elude capture.

Meanwhile, a court in the Libyan capital of Tripoli has sentenced Saif Gadhafi to death. He is being held captive by a militia in the northwestern city of Zintan. The ICC has sought to extradite Mr. Qaddafi for trial in The Hague, in part because of concerns that he could not receive a fair trial in Libya.

Omar al-Bashir, the leader of Sudan, continues to thumb his nose at the court – with the help of other African leaders. Bashir was in South Africa in June, yet he was permitted to leave without being arrested.

He had travelled to the country for an African Union summit chaired by the Zimbabwean president, Robert Mugabe, and flew back to Sudan from a military airport just outside Pretoria, as a local court was hearing an application that would force the South African government to arrest him.

Yet, though South Africa is a member of the ICC, its government defied the longstanding arrest warrant for Bashir, who has been charged with war crimes, crimes against humanity and genocide related to the conflict in the Darfur region of Sudan. The UN estimates that 300,000 people have died in the area since 2003

The failure of the South African government to arrest the Sudanese president is a betrayal of Nelson Mandela’s legacy, stated Abiodun Williams, a former adviser to UN Secretaries-General Ban Ki-moon and Kofi Annan.

But South African President Jacob Zuma’s decision to let Bashir leave the country underscores the already strained relationship between the ICC and many African leaders. 

 

Henry Srebrnik is a professor of political science at the University of Prince Edward Island.

 

 

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