March 28, 2012
The first conviction at the International Criminal Court (ICC) in the tenth year of its functioning is a good time to take stock of how well an institution that was designed to counter war crimes and crimes against humanity around the world has performed so far. The guilty verdict on the Democratic Republic of Congo rebel warlord, Thomas Lubanga, for conscripting children under 15 is a welcome sign that individuals can be brought to justice for grave violations of human rights even if “their” governments lack the will or capacity to prosecute them. The ICC has a mandate to probe atrocities and prosecute individuals up and down the official chain of command in over 100 countries where its writ runs. Despite its virtually global mandate, however, all prosecution cases in its 10-year history come from Africa: Uganda, the DRC, Sudan, the Central African Republic, Kenya, Libya and Côte d’Ivoire. The silence of the court on major crimes committed elsewhere on the territory of state-parties needs some explaining. Is it because only Africans are committing the sort of offences covered by the court? Or is it because other state-parties are more diligent and effective in effecting national prosecutions?
The fact is that the ICC’s reticence to consider crimes committed elsewhere are partly legal-procedural but mostly political. The ICC has jurisdiction over crimes committed on the territory of a state that accepts its jurisdiction, by the citizens of a state which accepts its jurisdiction regardless of where the crimes are committed, or in a situation referred to it by the U.N. Security Council. The United States is not a member of the ICC but its citizens can be prosecuted if they commit grave crimes on the territory of a state-party. Like Afghanistan, for example, or the various European countries from which individuals were “rendered” and tortured. Despite the American failure to properly investigate and punish CIA officials and soldiers suspected of crimes against humanity in such situations, the ICC has never seriously considered exercising its jurisdiction. In January 2009, after having suffered heavy Israeli bombing in civilian areas in Gaza, the Palestinian National Authority lodged a declaration with the ICC under a provision of the court’s statute allowing states voluntarily to accept its jurisdiction. Despite hundreds of civilian deaths and a U.N. report which spoke of Israeli war crimes, the ICC prosecutor has yet to make up his mind on the matter. And it’s already been three years. Such wilful disregard of its mandate only ends up undermining the credibility of a court that is potentially one of the noblest products of international law in modern times.