International court still struggling to have impact

Since its establishment in 2002, the International Criminal Court (ICC) has aspired to end impunity for the perpetrators of the most serious crimes of concern to the international community. The court is the first permanent international court with jurisdiction to prosecute the most serious cases of genocide, crimes against humanity and war crimes.

Looking around the world at the allegations of atrocities and the brutality of most contemporary conflicts, it is certainly debatable if the court has managed to succeed in its ambitious programme.

It is worth recalling the range of challenges that it has encountered from the start. Some of the most powerful states, including Russia, China and the United States, have at times opposed and blocked the work of the court. Russia and China are currently preventing the situation in Syria being referred to the court by the UN Security Council.

African states had been amongst the court’s most ardent supporters and the majority of situations currently being considered by the court are self-referrals from those states. This relationship has soured in recent years following the attempt to prosecute the Sudanese president and high-ranking Kenyan politicians.

In 2013, while awaiting trial on charges of crimes against humanity relating to the violence following the 2007 national elections, Uhuru Kenyatta and William Ruto ran for and were elected president and deputy president of Kenya, respectively. The unexplained disappearance of key witnesses has hampered the case.

The ICC does not replace national jurisdictions, it merely complements them when necessary. Now plans are afoot to create a regional court for Africa, the real purpose of which will not be international accountability, but a means to evade the jurisdiction of the court.

The early years of the court were beset by controversy. The previous holder of the office of the prosecutor, Moreno Ocampo, was a controversial figure. Too often he seemed overly concerned with the court of public opinion.

On occasion, he opted to publicly announce he was about to arrest a major figure, instead of seeking sealed warrants and retaining the element of surprise to improve the chances of success. At times he seemed to make key public statements to deflect attention from other matters. Many argue that his legacy has damaged the court.

The conviction of Congolese warlord Thomas Lubanga in 2013 for war crimes was a milestone. However, the Lubanga trial came to court mired in controversy over the prosecutor's handling of the evidence and charges. The prosecution team was reprimanded for negligence in the way it conducted aspects of the investigation. Consequently, a number of prosecution witnesses were found to be unreliable or dishonest. A second Congolese warlord was acquitted when the court rejected the prosecution evidence and testimony of a number of key witnesses.

The referral of the situation in Darfur to the ICC in 2005 was a major breakthrough, but the subsequent strategy of the prosecutorial investigation was subject to widespread criticism. All this points to defects in the administration of international justice.

While the court will remain at the mercy of realpolitik, it still needs to have its own house in order. Lubanga spent seven years in prison awaiting the outcome of his trial; some of those indicted by the International Criminal Tribunal for Rwanda wait over twice that length of time. Is this an acceptable way to dispense international justice?

Politics and law, especially at an international level, will always be intertwined. Now relations with the UN Security Council are seriously strained as the court and prosecutor attempt to pursue the president of Sudan for alleged atrocities in Darfur. The current prosecutor, Fatou Bensouda from Gambia, has done much to restore the credibility of the court. The optimism of the early days about holding those most responsible for serious international crimes to account has evaporated. Other international tribunals have also encountered setbacks. The special tribunal established to prosecute former Khmer Rouge leaders in Cambodia has been plagued by internal strife and government hostility.

The Special Tribunal for Lebanon has been painstakingly slow due to intimidation and attacks on its team in Beirut. The International Criminal Tribunal for the former Yugoslavia has faced criticism that it has an anti-Serb bias.

The situations and cases currently under review by the court have a decidedly African focus, leaving the court open to claims that it is pursuing a racist agenda. The cases that are being prosecuted also involve a range of individuals who in some way or another have incurred the wrath of larger Western states. States’ support for the court has been inconsistent, strong on rhetoric and weak when political support is needed to do its job. This is especially the case in respect of the members of the UN Security Council.

How the court manages the referral of the situation in Palestine will further test its credibility. Navigating the political and diplomatic minefield that the Palestine situation presents will require independence and courage. Any prosecutions will take years to complete and are likely to antagonise Israeli and Palestinian groups in equal measure.

Prof Ray Murphy teaches at the Irish Centre for Human Rights, school of law, NUI Galway. The centre hosts an annual summer school on the International Criminal Court