The ICC issued an arrest warrant for Sudanese President Omar al-Bashir in relation to alleged war crimes in Darfur. Photo by Jesse B. Awalt / US Navy (public domain)
Two weeks ago, Sudanese President Omar al-Bashir’s dramatic flight from South Africa once again raised questions about the effectiveness of the International Criminal Court (ICC). Critics argue that the ICC has failed both practically, by being unable to apprehend accused war criminals like Bashir, and politically, by focusing solely on African cases. However, these critiques ignore a key factor: the ICC was designed to offer voice to victims of crimes against humanity. To truly assess the ICC’s relevance, their views must be taken into account. Doing so shows that while the ICC has weaknesses, its work is still important for the provision of justice.
In the thirteen years since the ICC’s establishment, the Court has considered twenty-two cases from nine different conflict situations. Scholars and private analysts have used a variety of techniques to determine how those affected by violence perceive the ICC’s intervention. Surveys from Uganda, Kenya, and the Central African Republic present a nuanced picture. When prosecution happens slowly or unevenly, victims are unsure if the Court is meeting their needs. However, when prosecution happens quickly, victims feel the ICC is an appropriate tool for justice.
In Uganda, the ICC has been largely ineffective in its efforts to apprehend and prosecute the leadership of the Lord’s Resistance Army (LRA). The ICC first opened investigations in 2003, following a referral from Ugandan President Yoweri Museveni, and issued arrest warrants for five LRA leaders in 2005. By 2008, the LRA had been driven out of northern Uganda and government forces were beginning to withdraw. Two years later, however, while life had begun to return to normal for northern Ugandan citizens, the ICC had yet to take into custody any of the LRA leaders for whom it had issued arrest warrants.
It was in this context that researchers from the Human Rights Center at the University of Berkeley wanted to understand local attitudes towards the ICC. They issued a 2010 survey of northern Ugandan counties most affected by violence to ask about the Court’s role. They found mixed opinions: 43% of respondents believed that the ICC had helped northern Uganda, 40% believed that it had had no effect and 10% believed that it had been harmful, while the rest had no opinion. Without actually prosecuting a case, it seems the Court had limited impact on the daily lives of northern Ugandans affected by violence. When the ICC was finally able to begin prosecution of one LRA leader, Dominic Ongwen, following his January 2015 arrest, northern Ugandan stakeholders argued that because his trial would highlight only one small part of the conflict, it alone was ineffective in providing accountability.
These concerns are reflected in Kenya, where the ICC investigated 2008 post-election violence. When the ICC first opened investigations in October 2010, 68% of Kenyans supported the Court’s process, but this number quickly dropped as the case became politicized. In December 2010, ICC prosecutor Luis Moreno Ocampo released the names of six Kenyans considered “most responsible” for the 2008 violence. This list included Uhuru Kenyatta and William Ruto, who would successfully run a campaign for the 2013 presidential election based in part on their constituents’ sense that the ICC was unfairly targeting their leaders.
The politicization of the ICC was reflected in national polls. Following the January 2012 confirmation that Kenyatta, Ruto, and other defendants would be charged with crimes against humanity, less than 50% of respondents in provinces that supported Kenyatta and Ruto were satisfied with the ICC’s decision. However, over 70% of respondents in opposition provinces expressed satisfaction. Although there have been no surveys targeting the opinions of victims specifically, those who pursued justice by giving testimony to the ICC have been punished within Kenya. After his confirmation as President, the ICC withdrew charges against Kenyatta amidst allegations that witnesses had been killed or intimidated into recanting evidence.
Low levels of support for the ICC’s prosecution of Kenyatta and Ruto do not mean that Kenyans disapprove of the ICC in general. A survey conducted by Afrobarometer and the University of Nairobi in March of 2015 showed that 60% of Kenyans believed the ICC is still a relevant institution. However, when its prosecution attempts become politicized, as they did in Kenya, its relevance as a tool for justice is diminished.
When the ICC is able to carry out prosecutions without outside interference, there is evidence that its efforts are appreciated and supported by victims. In the Central African Republic (CAR), the ICC received a referral from the CAR government in 2005. It opened investigations in 2007 and issued an arrest warrant against Jean-Pierre Bemba Gombo in 2008. Bemba was arrested and turned over to the ICC within a month, where his trial began immediately.
A 2010 survey in CAR carried out by the University of Berkeley’s Human Rights Center shows the impact an efficient prosecution can have. Researchers surveyed five administrative regions that had been exposed to varying levels of violence. While the overall level of awareness of the ICC was very low, at 31.9%, respondents who had witnessed violence were much more likely to have heard of the ICC and to hold a positive view of the Court. 95% of respondents who had heard of the ICC believed that the ICC was important, 51% thought it would answer a need for justice, and 81% believed that the ICC was neutral and would have a positive impact on their lives. In other words, when the ICC was seen to effectively carry out its mandate, those affected by violence knew about its work and felt that the results were positive and significant.
The ICC clearly faces many challenges. There is evidence that when the accused have significant political power, as in Kenya, or are able to avoid arrest, as in Uganda, the ICC disappoints both critics and victims with its inability to effectively carry out prosecution. However, these failings do not mean that the Court itself is a failure. The ICC is fairly young and is mandated to take on difficult cases that other countries do not want or are not able to prosecute. It is not surprising that the Court has struggled to effectively adjudicate all the cases on its docket. However, the ability of the Court to gain support from victims when it is able to function normally shows that it remains a unique tool for justice. We should not be so quick to dismiss an institution with the potential to bring real benefits to victims whose need for justice is so frequently ignored.