JONATHAN MANTHORPE: International Affairs
Dec. 17, 2014
When the International Criminal Court came to life in 2002 it was touted as a place where tyrants and their underlings would be brought to account for genocide and crimes against humanity.
But the ICC, based in The Hague, has never gained altitude. The limits on its powers and its inability to fulfil even its restricted mandate were put on display this month by the court’s chief prosecutor, Fatou Bensouda. On Dec. 5 she withdrew charges of crimes against humanity lodged against Kenya’s president, Uhuru Kenyatta. A week later, Dec. 12, Bensouda said she will “hibernate” investigations into crimes against humanity in the Sudanese region of Dafur, in which President Omar al-Bashir and some of his officials were charged with genocide and war crimes in 2008.
Bensouda’s climb-downs came as representatives of the 122 countries involved in the ICC, the Assembly of States, met in New York. It was not a happy meeting. The ICC’s budget was cut, Kenya led a charge accusing the court of being biased against African heads of state, and the Palestinian Authority achieved observer status with the intention of suing Israel for war crimes when it achieves full membership.
The accusation that the ICC is a tool of western neo-colonialism and biased against Africa is a central weapon in the fistful of tactics Kenyatta used in his campaign to undermine charges that, as an opposition leader, he organized and funded violence in the wake of 2007 elections in Kenya. About 1,500 people were killed and up to 600,000 displaced in the violence.
The charge of ICC bias has been picked up by other African leaders. This week, Uganda’s president, Yoweri Museveni, called on the continent’s 34 nations that are members of the ICC to withdraw support for the court.
It is true that the ICC has only African cases on its agenda at the moment. But the fact that 34 African nations currently back the ICC, a quarter of the membership, demonstrates one reason why there is an emphasis on human rights violations on that continent in the court’s work. The other major source of members is Latin America. But there are hardly any members from the Middle East, so there is no impetus to pursue cases against tyrants in Syria, Libya, Egypt or elsewhere in the region.
And because the United States, Russia and China are not members of the ICC or acknowledge its authority over their citizens, the court has no powerful consistent advocate or backer at the United Nations. For example, last year the UN Security Council, where the U.S., China and Russia have vetoes, was unable to come to an agreement on a motion allowing intervention in Syria, which included referral of Syrians accused of crimes against humanity to the ICC.
But the major structural deficiency in the ICC when confronted by tyrants in power is that it has limited investigative resources. It relies on the assistance of the target government to make its cases. Expecting tyrants to assist in their own downfall and transportation to The Hague to answer for their crimes is nonsense, of course.
Kenyatta became Kenya’s president after elections last year and has waged a wily campaign against the ICC charges, which led to Bensouda withdrawing them early this month. As I’ve said, a central tactic has been to win public and regional backing by characterizing the process as intrinsically imperialist and anti-African. This carefully ignores the fact that it was a Kenyan investigative commission in 2009, while Kenyatta was still an opposition politician, that recommended the ICC pursue the case of responsibility for the 2007 violence and deaths.
Meanwhile, Kenyatta and his officials acted as though they were doing everything possible to help the ICC investigators find and interview witnesses. In reality, Kenyatta oversaw a sophisticated conspiracy of obfuscation, distraction and intimidation of witnesses.
It is a measure of how confident Kenyatta felt at the success of his campaign to demolish the case against him that he voluntarily turned up at the ICC hearing in October. On Dec. 3 the judges agreed that Kenyatta’s administration had not co-operated with court investigators “in good faith,” but ruefully decided there was not enough evidence to sustain a trial. They gave Bensouda a week to decide what to do. She came to the only possible conclusion and on Dec. 5 dropped the charges. She tried to retain some dignity for the ICC process by saying she reserved the right to file them again in the future if more evidence could be gathered.
One of Kenyatta’s claims was that as president he has immunity from ICC prosecution. This ploy is untested, but it has caught the attention of several leaders, African and otherwise, who have reason to fear their pasts catching up with them. One is deposed Cote d’Ivoire President Laurent Gbagbo, who has been in an ICC prison since 2011 awaiting trial on four charges of crimes against humanity. Gbagbo denies the allegations and is attempting to gain immunity against any resumption of the now stalled trial — his supposed ill health has put the brakes on the process — by running a vigorous campaign from his cell in Holland for presidential elections due next year.
Fear of being dragged to the ICC cells is giving several other African leaders pause for thought before retiring and perhaps losing immunity from 
prosecution for their past misdeeds. Most notable is 90-year-old Robert Mugabe of Zimbabwe. Still awaiting judicial retribution is his dispatch of special forces against his political opponents in the early 1980s in which thousands of men, women and children were massacred. In the early 2000s Mugabe again loosed his forces against opponents, killing hundreds of people, wilfully destroying the country’s economy and compelling a third of the country’s 12 million people to flee to neighbouring states.
Another African leader hesitant to retire for fear of retribution is the Congo’s Joseph Kabila. He is meant to step down in 2016 after serving two five-year terms as President. But after recently being accused by the UN of masterminding extra-judicial killings, there are growing signs that Kabila feels his safest option is to defy the constitution and stay in power.
The ICC is not a total dud and it may yet achieve the stature and importance that was envisaged at its birth. The concept of judicial accountability of leaders remains current, and UN-mandated special courts have brought several tyrants to justice. Since May, 2012, former Liberian President Charles Taylor has been serving a 50-year prison sentence for crimes against humanity after a trial at the Special Court for Sierra Leone. Former Yugoslav President and Serbian leader Slobodan Milosevic died of a heart attack in a prison cell in The Hague in 2006. He conducted his own defence at a five-year trial for war crimes trial before the International Criminal Tribunal for the Former Yugoslavia, but died before the verdict was announced. Bosian Serb leader Radovan Karadzic is being tried on charges of war crimes during the break-up of Yugoslavia by the same tribunal.
And not all African leaders dismiss the ICC. Indeed, several of them like it very much, but just so long as it investigates the alleged atrocities of their opponents rather than their own misdeeds. At the request of the government of Mali, the ICC is investigating claims of atrocities in the north of the country in 2012, both by leaders of an abortive coup and by jihad fighters of al-Qiada in the Islamic Magreb.
Jean-Pierre Bemba Gombo, the commander of the Movement for the Liberation of Congo, has been on trial in The Hague since November 2010 for alleged war crimes and crimes against humanity committed in the neighbouring Central African Republic (CAR). At the request of the CAR government, the ICC is also investigating allegations of atrocities –including murder, rape and the use of child soldiers— by the Séléka, a mostly Muslim rebel group from the north of the country, committed in the two years since 2012.
But until the ICC gets substantially more resources and the ability to act independently, it will remain a hobbled creature. And don’t expect any action from the three countries that could help set the ICC up as a force to be reckoned with. The last thing China, Russia, or the U.S. wants is an international court able to charge their political leaders with war crimes, or crimes against humanity.
© 2014 Jonathan Manthorpe
Jonathan Manthorpe is a founding columnist with Facts and Opinions and is the author of the journal’s International Affairs column. Manthorpe has been a foreign correspondent and international affairs columnist for nearly 40 years. Manthorpe’s nomadic career began in the late 1970s as European Bureau Chief for The Toronto Star, the job that took Ernest Hemingway to Europe in the 1920s. In the mid-1980s Manthorpe became European Correspondent for Southam News. In the following years Manthorpe was sent by Southam News, the internal news agency for Canada’s largest group of metropolitan daily newspapers, to be the correspondent in Africa and then Asia. Between postings Manthorpe spent a few years based in Ottawa focusing on intelligence and military affairs, and the United Nations. Since 1998 Manthorpe has been based in Vancouver, but has traveled frequently on assignment to Asia, Europe and Latin America.
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