We need a tribunal to tame criminals, but the current ICC is not up to the task

What you need to know:

  • Justice is a noble ideal — but when abstraction collides with pragmatism, the latter generally prevails. Such is the case with the International Criminal Court today, scarcely 12 years old and already failing.
  • In Kenya, the case against President Uhuru Kenyatta and his deputy, William Ruto, has degenerated into farce.

Just before the turn of the new millennium, a prominent human rights advocate stopped by to brief me on his efforts to create an international criminal court. The world needed an impartial, truly global tribunal to prosecute crimes against humanity. How else would we punish — and in the future deter — perpetrators of such horrors as Rwanda and the former Yugoslavia? 

I admired the man’s zeal and his idealism. Yet I was wary. Such crimes are almost always shaped by context and seldom occur in the abstract. What of Winston Churchill, I asked, the wartime British prime minister responsible for the gratuitous fire-bombing of Dresden? Or Harry S. Truman, who ordered the bombing of Hiroshima and Nagasaki? The answer was unambiguous: Both were war criminals who should be in the dock.

ALREADY FAILING

Let us be realistic: There is a deep disconnect here. Justice is a noble ideal — but when abstraction collides with pragmatism, the latter generally prevails. Such is the case with the International Criminal Court today, scarcely 12 years old and already failing.

To date, 122 countries have signed the Rome Statute, including all of South America, most of Europe, and roughly half the countries of Africa. Notable among those who have not are the United States, Israel, Russia, China, and India. The court has been asked to investigate alleged crimes in 139 countries but, so far, has done so in only eight, issuing 36 indictments and 27 arrest warrants — all in Africa.

As for the proceedings themselves, the record has been decidedly mixed. The post-World War II Nuremberg tribunal tried two dozen top Nazi officials in less than a year. The contrast to today’s ICC is glaring. The court’s first case, concerning the Democratic Republic of the Congo, is still under appeal — two years after the accused was sentenced to 14 years in prison and eight after he was arrested. The defendant in a second case, also in the DRC, was acquitted, prompting an immediate appeal by the prosecutor, also indefinitely pending.

YET TO BE CHARGED

In early 2005, the ICC indicted Sudanese President Omar al-Bashir and six others for crimes against humanity in Darfur. Nearly a decade later, nothing has happened. In Cote d’Ivoire, former president Laurent Gbagbo was accused of war crimes in the country’s 2010-11 civil war and remanded in ICC custody. Nearly three years later, he is yet to be charged.

In Kenya, the case against President Uhuru Kenyatta and his deputy, William Ruto, has degenerated into farce. Put aside claims that it was carelessly brought. In January, the prosecutor asked for an indefinite deferral, citing lack of evidence. Witnesses on both sides recanted previous testimony. Under cross examination, one confessed to being paid by the prosecution as well as forging hotel receipts and other expenses covered by the court. The abrupt resignation of a leading judge, last week, reflects the fecklessness of the proceedings. Some at the court hope Mr Kenyatta never comes to trial for fear he would be acquitted so resoundingly as to deal a fatal blow to the ICC’s credibility.

Many believe the tribunal is overtly politicised, with a built-in bias against Africans. Others accuse it of being strong against weak countries and weak against strong ones. In Western capitals, especially, the trade-off between peace and justice is glossed over as a false choice: “There is no peace without justice, no justice without peace,” as the cliché goes.

In less stable parts of the world, however, peace and justice may not be so easily compatible, at least simultaneously. There is a place for a more nuanced brand of “transitional justice,” says Mehari Taddele Maru, an Ethiopian research fellow at the NATO Defense College. “Advocating justice is one thing; understanding the regional dynamics of peace and local priorities is another.”

A substantial majority of Africans continue to support the ICC. And why not? Power-hungry politicians and rapacious warlords have claimed millions of innocent victims. The last thing most Africans want is impunity for the perpetrators of such crimes.

The world needs an international criminal court. It just needs a better court than this one.

Michael Meyer is dean of the graduate school of media and communications at Aga Khan University in Nairobi.