Reforming ICC is not enough; other powerful states are the problem

Tuesday May 21 2019

Elise Keppler, the associate director at Human

Elise Keppler, the associate director at Human Rights Watch. ILLUSTRATION | JOHN NYAGA | NMG 

FRED OLUOCH
By FRED OLUOCH
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The associate director at Human Rights Watch Elise Keppler spoke to Fred Oluoch on recent events at the International Criminal Court.

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South Africa, Kenya and Jordan refused to arrest former Sudan president Omar al Bashir and nothing happened. Jean-Pierre Bemba, Laurent Gbagbo and a host of others have all gone free. Are we seeing a situation where the world, especially Africa, will start losing faith in the ICC?

You may be focusing on actually the lesser aspect of the recent ICC decision.

While it is true that the judges did not refer Jordan to the ASP or Security Council, the judges concluded Jordan violated its international obligations by failing to arrest Mr Bashir.

Given that Jordan argued that Mr Bashir actually had immunity and could not be arrested, this is a major ruling. It makes it clear that ICC members are legally obligated to arrest Mr Bashir and claimed immunity will not negate the obligation to arrest.

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But as to the larger question of faith in the ICC, we have seen a range of views on the ICC in Africa.

There are governments and activists that remain steadfast in support and want to see the court benefit from such support. And there have always been those who have reason to fear justice and have tried to discredit it. I have no evidence suggesting a new trend.

Is ICC finding it difficult to deal with rogue leaders in Africa, especially in the face of the superpowers not being signatories to the Rome Statute?

The ICC has always faced an uphill battle in securing the arrest of some of its suspects, Mr Bashir being the most notable.

We are pressing for his surrender following his ouster and think that the Transitional Military Council has a chance to show it is serious about human-rights and justice by transferring Mr Bashir to the ICC.

The limits on the reach of the ICC’s authority when it comes to individuals from some powerful countries that have not joined is a difficult issue.

The concern was only exacerbated in the recent decision by the ICC judges on Afghanistan.

In particular, the US government has threatened to block any potential ICC investigation that could include US nationals or nationals of US allies.

In March, Secretary of State Michael Pompeo announced that the US would restrict visas of ICC staff responsible for a potential Afghanistan probe, and ICC Prosecutor Fatou Bensouda confirmed on April 5 that the US had revoked her visa.

The Trump administration claims that the judges’ decision was a victory for this policy and the rule of law but disregards the impact it will have on the tens of thousands of victims in Afghanistan who will be denied a path to justice.

Officials of powerful governments or their allies are still likely to escape justice because these governments have failed to join the ICC or because they wield the veto power they hold as permanent members of the UN Security Council to protect against prosecution.

This is a problem that cannot be readily remedied by reforming the operations of the ICC. Instead, these double standards need to be addressed head-on, including through ratification campaigns to bring additional countries into the Rome Statute and efforts to ensure that the members of the UN Security Council implement a principled and consistent approach to ICC referrals.

Are there some reforms in the pipeline that could make ICC more vibrant and restore the hopes of African victims?

Several former presidents of the ICC’s Assembly of States Parties have recently called for an independent expert review of the court’s functions.

We share concerns that the court needs to address chronic shortcomings in its delivery of justice. Any review process, however, needs to have as its sole aim improving the court’s functioning and have full respect for the court’s judicial and prosecutorial independence.

An independent expert review could be a good basis for objectively assessing needed improvements in court performance.

ICC members also need to intensify their own co-operation and support for the court, including through providing adequate resources and offering quality judge candidates

The court can only thrive with adequate co-operation and support from its members.

Where does ICC go from here?

The ICC has so far opened more than two dozen cases, and pre-trial or trial proceedings are ongoing in four cases.

However, trials for war crimes and crimes against humanity have only been completed in a handful of cases, with three people convicted and four others acquitted. Some other cases have been dismissed for lack of evidence.

Court officials have made a number of missteps and stronger investigations by the Prosecutor, better choices in the selection of cases, more efficient proceedings and more effective outreach with victims and affected communities are needed.

The court also faces challenges in carrying out its mandate. Without a police force, it relies on states for co-operation in arrests, and that co-operation has been inadequate.

Arrest warrants remain outstanding against 15 individuals. ICC member states have also held back on necessary budget increases even as the court’s workload has grown.

The court certainly continues to learn lessons, correct mistakes, and improve its work. But an effective ICC backed by strong support of the international community is needed more than ever to send the message that impunity for mass atrocities will not be tolerated.

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