International Criminal Court

Since 1945, many regime leaders and key figures have been brought before domestic and international courts to answer to charges including genocide and crimes against humanity, amid a larger struggle to promote and enforce the rule of law worldwide.
Apr 26, 2021
Since 1945, many regime leaders and key figures have been brought before domestic and international courts to answer to charges including genocide and crimes against humanity, amid a larger struggle to promote and enforce the rule of law worldwide.
Apr 26, 2021
  • Sub-Saharan Africa
    South African Democracy and the International Criminal Court
    For this outsider, the parliamentary and judicial response to the Zuma administration’s failure to detain Sudanese President Omar al-Bashir and turn him over to the International Criminal Court (ICC) provides a window in to the state of South African democracy. To me, it is clear that the Zuma government broke both South African and international law by not only failing to hold al-Bashir, though specifically ordered to do so by the South African judiciary, but also facilitated his clandestine departure. South African law is relevant because the South African government at the time incorporated the ICC treaty into its own legal system. Neither the judiciary nor the parliament is taking the Zuma administration’s violation of the law quietly. The Pretoria high Court has “invited” the National Director of Public Prosecutions to look into how South Africa violated a court order to hold al-Bashir. Judge President Dunstan Mlambo said, “A democratic state based on the rule of law cannot exist or function if the government ignores its constitutional obligations.” The parliamentary debate was raucous. The official opposition, the Democratic Alliance (DA), stated that the Zuma government was in contempt of both the South African court and the ICC. A DA parliamentarian, Steven Mokgalapa said, “The African National Congress (ANC) government, led by Zuma has committed a crime of assisting a wanted man to run from the law.” Congress of the People (COP) leader Mousiuoa Lekota is quoted by the media as saying, “You lied to us. You said you will uphold the constitution, uphold the law and be an example. You have misled the people of our country and now we are ashamed before the nations of the world.” (“Terror” Lekota – his nickname comes from soccer – is a Robben Island veteran and was once an ANC stalwart; a former Minister of Defense, he broke with the ANC when it removed Thabo Mbeki from the party leadership.) The ANC defense boils down to the propositions that heads of state are immune from the ICC. (The Rome Statute specifically says that heads of state are subject to ICC jurisdiction.) Further, that al-Bashir was attending an Africa Union summit, rather than making an official visit to South Africa. However, some ANC leaders are roundly attacking the ICC and calling for South Africa to withdraw. In what is likely to be a swipe at the United States, ANC Secretary General Gwede Mantashe said on local radio that the ICC “is a tool in the hands of the powerful to destroy the weak and it is a court that is focusing on Africa, Eastern Europe, and the Middle East.” He said South Africa should consider leaving the ICC: “If I was in government, I would give notice, get out of that, it was not what was envisioned.” Justice and Constitutional Development Deputy Minister John Jeffrey is quoted as saying that the ICC “has diverted from its mandate and allowed itself to be influenced by powerful non-member states. We signed up for a court that was going to hold human beings accountable for their war crimes – regardless of where they were from. We perceive it as tending to act as a proxy instrument for those states who see no need to subject themselves to its discipline, to persecute African leaders, and effect regime change on the continent.” The al-Bashir episode provides a muddled picture of South African democracy. The government appears to have acted illegally. The judiciary and the legislature have reacted vociferously. But, nobody seems to expect that anything will happen.
  • Sub-Saharan Africa
    South African Rule of Law Threatened
    From the perspective of the expectations of Nelson Mandela, South Africa has been treading water, if not worse, especially since the national elections of 2014. Economic growth remains an anemic 2 percent or less, thereby challenging Mandela’s assumption that poverty could be eliminated rapidly. Public concerns about corruption remain unaddressed. Parliament appears increasingly dysfunctional. Its procedures are under assault by Julius Malema’s Economic Freedom Fighters and stonewalling tactics by the Zuma government over corruption. All the while, the Zuma government appears to be consolidating executive power at the expense of the other, theoretically co-equal branches of government. It has twice kept out the Dalai Lama, apparently to keep Beijing happy, while it welcomed Sudanese President Omar al-Bashir with a red carpet to keep the African Union happy. Though wanted by the International Criminal Court (ICC) for genocide, the Zuma government forestalled Bashir’s arrest, which was required by South African law and mandated by the judiciary, by assisting in his clandestine departure. Once one of the strongest supporters of the ICC, the ruling party, the African National Congress (ANC), now denounces it in neo-colonial terms similar to the denunciations by Zimbabwe’s Robert Mugabe and Kenya’s Uhuru Kenyatta. Democracies often go through bad patches of governance. However, democratic institutions including an independent judiciary, civil society, and the rule of law provide a corrective mechanism. Up to now, all three have fulfilled this role in post-apartheid South Africa and have been a basis of optimism about the future of the country. The al-Bashir incident will be a test of the extent to which that optimistic conclusion is still valid. The bottom line appears to be that the Zuma government broke South African law by failing to arrest Bashir and undermined the judiciary by failing to implement its ruling. The courts are now demanding that the Zuma government provide an explanation in seven days for how Bashir entered the country, was not arrested, and then left, though there was a court order requiring the government to ensure that he not leave. Civil organizations are saying that they will likely sue the government for contempt of court, but will delay filing until the government responds to the courts with its explanation. The opposition Democratic Alliance has roundly denounced the government’s behavior. It can be anticipated that it will raise the issue in the National Assembly. Meanwhile, the media, including social media, is expressing outrage over the Zuma government’s behavior. Nothing that happens in South Africa now will result in Bashir’s arrest and handover to the ICC. But the courts and civil society may be able to hold the Zuma government accountable. However, if they fail to do so, or are successfully thwarted by Zuma and the ANC, South Africa will have moved away from democracy conducted according to the rule of law. The next week or so could be significant for South Africa’s future.
  • Global
    The World Next Week: March 26, 2015
    Podcast
    Egypt hosts the Arab League summit; Palestine is set to join the International Criminal Court and Nigerians vote for a new president.
  • Sub-Saharan Africa
    To Catch a Victim and a Perpetrator: The ICC and Dominic Ongwen
    This is a guest post by Cheryl Strauss Einhorn, a journalist and adjunct professor at the Columbia University Graduate School of Journalism. They’ve got him, but can they get him? That’s the question before the International Criminal Court (ICC) as it finally confronts Dominic Ongwen, the number two commander in Joseph Kony’s Lord’s Resistance Army (LRA). The Court has been after him for a decade, almost as long as it has been in existence. So can it bring Ongwen to justice? The dilemma: Ongwen is not only a perpetrator; he is also a victim of the LRA. A group that must also be brought to justice, the LRA is blamed for killing over 100,000 people and kidnapping some 60,000 children across 5 central African nations during the past 25 years. Ongwen himself was one of those stolen children. Kidnapped at the age of 14 on his way to school in 1988, Ongwen allegedly shed his childhood for murder and mayhem, quickly rising through the ranks. This raises an important issue for a Court that has shed a spotlight on the problem of child soldiers, but must recognize that Ongwen is charged with crimes he committed as an adult. Ongwen, the first Ugandan rebel to face the Court, is not going to make it easy for the Court to bring him to justice. For example, when asked by a judge what his job is he replied “I am unemployed, and that is all.” While Ongwen later admitted “Prior to my arrival at the court I was a soldier in the LRA,” it is his right to try to defend himself and dodge incriminating questions; it is the Court’s obligation to effectively mete out justice. Will the Court consider his personal history as a mitigating factor in his confirmation hearings in April that provide the preliminary step to decide whether a case will be referred for trial? Certainly, these facts could be relevant to his legal defense. In fact, in his home country of Uganda, Ongwen was banking on returning home a free man. Back in 2000, the Ugandan government passed an Amnesty Act allowing thousands of former LRA combatants, including those who willingly joined the rebels, to qualify for a full pardon. The reason: an effort to enable communities to sidestep the murky issue of culpability stemming from being, like Ongwen, both a perpetrator and a victim. In a videotaped interview with the Ugandan Army Ongwen said “I have shown my true character by coming out. I don’t want to die in the wilderness. If the call for amnesty is mere politicking, then I leave it in the hands of the authorities holding me.” The Ugandan authorities chose to turn him in to the Court. Uganda’s state minister for foreign affairs, Henry Oryem Okello, told the press that President Museveni was compelled to send Ongwen to the Court because his alleged crimes extended beyond Uganda’s borders and into other countries where the LRA was active, including the Democratic Republic of the Congo (DRC) and South Sudan. Specifically, the Court alleges that in 2005 Dominic Ongwen was the LRA’s commander of the Sinia Brigade and accuses him of three counts of crimes against humanity, as well as four counts of war crimes, including murder and the cruel treatment of civilians. As recently as a month ago Ongwen told the Ugandan Army, “Even up to now, I dream about war every night.” So what will happen? The Court will again have to forge new ground. It will have to show that it can prove its charges against Ongwen and it must push the conversation of child soldiers forward, not by accepting a false choice between clemency and sanction, but instead by showing that understanding and compassion are not at odds with justice.
  • Global
    Fatou Bensouda on the International Criminal Court and Gender-Based Crimes
    Play
    Fatou Bensouda, prosecutor at the International Criminal Court (ICC), joins David J. Scheffer, the secretary-general's special expert on UN assistance to the Khmer Rouge trials at the United Nations, to discuss the ICC’s policy and protocol in investigating and prosecuting sexual and gender-based crimes.
  • Kenya
    Kenya and the International Criminal Court
    Significant African opinion appears hostile to the International Criminal Court at The Hague (ICC). In Kenya, President Uhuru Kenyatta and Deputy President William Ruto, both under ICC indictment for crimes committed during post-election violence in 2007-2009, included in their campaign rhetoric that the ICC was a tool of Western imperialism. This view is shared by many. Others argue that the ICC is somehow “unfair” because its current cases all involve Africa. In Kenya, the parliament has called for the withdrawal from the Treaty of Rome that established the ICC. The African Union has called for the Kenyatta and Ruto cases to be referred back to the Kenyan judicial system. A special African Union (AU) summit meeting is convening in Addis Ababa on October 11-12 to discuss the Union’s relationship with the ICC. Some hope that the AU member states will withdraw as a block from the Treaty of Rome, though few expect that will actually happen. Misunderstandings, even outright lies, about the ICC and the Kenyatta and Ruto cases in particular are underpinning much of this current anti-ICC sentiment in Kenya and elsewhere. Under those circumstances Human Rights Watch (HRW), a distinguished non-governmental organization based in the United States, has performed a service by publishing a short primer on October 7 entitled Perceptions and Realities–Kenya and the International Criminal Court. It sets out eight common perceptions about the Kenyatta and Ruto ICC prosecutions–and then demolishes them. Along the way it shows that the Kenyan judicial system does not have the capacity to prosecute Kenyatta and Ruto and that it has failed to hold perpetrators of electoral or political violence accountable throughout its post-colonial history. It also exposes a lack of substance to the Kenyan government’s cooperation with the ICC in the Kenyatta and Ruto cases–despite the two’s formal cooperation with The Hague court. The HRW primer is the first place to go when looking at the alleged legal arguments for delaying the trials, either by transferring them to Kenyan jurisdiction or through UN Security Council action. HRW also discusses the consequences for the future of Kenya’s failure to hold accountable perpetrators of human rights violations. Impunity in the past implies impunity in the future. Archbishop Desmond Tutu has also weighed in on the key role of the ICC in ensuring that perpetrators of violence are met with justice not impunity. In an op-ed published in the New York Times on October 10, Tutu states that “without this court, there would be no brake on the worst excesses of these criminals.” He also highlights the fact that while the ICC has so far prosecuted only African cases, the ICC could also “not be more African if it tried.” The United States is also a signatory of the Treaty of Rome, but it has never been ratified by the Senate. U.S. policy is, however, highly supportive of the International Criminal Court. In light of non-ratification, many African critics view U.S. support for the ICC as fundamentally hypocritical.
  • Sub-Saharan Africa
    Kenya Churns Over the International Criminal Court
    Deputy President William Ruto’s International Criminal Court (ICC) trial for crimes against humanity associated with the 2007 elections opens September 10 in The Hague. President Kenyatta’s trial is scheduled to open November 12. On September 5 the Kenyan National Assembly passed a motion calling for Kenya to withdraw from the ICC; the passage of the necessary legislation is expected by the end of the month. As the date of the start of the trial approaches, two more witness have withdrawn from the Ruto case, citing “mental anguish” and “pressure from the family.” Fatou Bensouda, the ICC prosecutor, has complained on numerous occasions of witness intimidation and of the Kenyan authorities’ failure to cooperate in their protection. With respect to President Kenyatta, in the Kenyan press there is a lively debate on whether the immunity conferred by the Kenyan constitution on a sitting president trumps the ICC. The general sentiment is that it does, and that Kenyatta’s trial cannot go forward so long as he is in office. The debate also features a rehash of familiar arguments about the alleged bias of the ICC against African leaders despite the fact that the prosecutor, Fatou Bensouda is a Gambian who received her university and legal training in Nigeria. (She also studied maritime law in Malta.) There are eighteen ICC judges. Five are from Western Europe, five from Africa, three from Latin America, three from Asia and two from Eastern Europe. Kenya’s withdrawal from the ICC appears inevitable. With respect to the Ruto and Kenyatta trials, it changes nothing–and it changes everything. As human rights activists and legal experts point out, Kenyan withdrawal can take place only after a year. Further, withdrawal has no legal impact on the indictments now standing against Kenyatta and Ruto. But, Kenyan withdrawal also changes everything because, in effect, the ICC trial will not be able to function without Kenyan government cooperation. Ruto is required by the ICC to be in The Hague on September 10. He previously pledged to cooperate with the court and therefore is obliged to appear. We will see if he actually goes. The entire dreary episode appears to be a setback for holding African leaders accountable.
  • International Law
    Frequently Asked Questions about the International Criminal Court
    This publication is now archived. How did the court begin? The concept of an international court was first discussed in the aftermath of World War II. However, it wasn’t until the 1990s that the first ad hoc international criminal tribunals were set up to deal with war crimes in Rwanda and the former Yugoslavia. The ad hoc tribunals were limited in their efficiency and deterrent capability, which spurred the need for a permanent court to deal with the world’s most serious crimes. A statute to establish the International Criminal Court (ICC) for creating such a body was approved at a United Nations (UN) conference in Rome on July 17, 1998. After receiving more than sixty ratifications by April 2002, the treaty became legal on July 1, 2002. On March 11, 2003, the ICC opened with Canadian Philippe Kirsch as judge-president, and Elizabeth Odio Benito of Costa Rica and Akua Kuenyenia of Ghana as vice presidents. Who does the court aim to prosecute? The ICC seeks to try individuals who perpetrate the world’s most serious crimes, such as genocide (the intentional and systematic annihilation of an ethnic, racial, or religious group) war crimes, crimes against humanity, and crimes of aggression. War crimes are violations of the international Geneva Convention to protect prisoners of war, as well as other laws that apply to international armed conflict. Crimes against humanity include those crimes that systematically exterminate, enslave, torture, rape, and persecute victims based on political, gender, religious, ethnic, national, or cultural differences. Crimes of aggression consist of the use of armed force by a state against the territorial integrity, sovereignty, or political independence of another state, or violations of the Charter of the United Nations. What is the relationship between the United States and the ICC? At the time of statute negotiations, the United States opposed the court, fearing U.S. soldiers could be subject to trivial or politically motivated prosecutions. After the establishment of the court, the United States insisted on immunity for all its military personnel operating in UN peacekeeping missions, particularly in East Timor and Bosnia-Herzegovina. This immunity was denied in East Timor. However, after increased pressure from the U.S. veto of a UN-extended peacekeeping mission in Bosnia-Herzegovina--and a threat to block future UN missions, starting with Bosnia, if the Security Council did not accept the terms of immunity--Washington was granted a one-year exemption from prosecution to be renewed every year, as a compromise. The United States also formed bilateral agreements with other nations obliging them not to hand over U.S. personnel to the ICC; in 2002, Congress passed the American Service Member’s Protection Act, authorizing the president to use all means necessary to free U.S. personnel detained by the ICC. Though former President Bill Clinton signed the treaty at the end of his second term, President George W. Bush withdrew the U.S. signature in 2002. What other countries are not involved? Seven countries voted against the statute: China, Iraq, Israel, Libya, Qatar, the United States, and Yemen. China objected on grounds that "the statute is an attempt to interfere with the domestic affairs of a sovereign nation." Other non-members include India, Iran, Japan, North Korea, Pakistan, Saudi Arabia, Sudan, Syria, and Turkey. While most Western European and South American countries are signatories, there are only two Arab nation members—Jordan and Tunisia. There are eighteen Asian members of the ICC. What cases are on the docket now? The Office of the Prosecutor (OTP) has been referred cases from Uganda, the Central African Republic, and the Democratic Republic of the Congo. In addition, the UN Security Council gave its first referral for the Darfur region of Sudan to the OTP in March 2005, followed in 2011 by a unanimous referral for Libya. The OTP is conducting investigations in Uganda, the Democratic Republic of the Congo, Sudan, and Libya. The investigation in the Democratic Republic of Congo resulted in the July 22, 2012 sentencing of Thomas Lubanga Dyilo to fourteen years in prison for war crimes, the first ICC sentencing. The OTP also opened investigations proprio motu in Cote d’Ivoire in 2011, after the country reconfirmed its acceptance of the ICC’s jurisdiction, and in Kenya, after the prosecutor’s request to open investigations into the post-election violence was granted in 2010. What is the relationship between the International Court and the national courts? The ICC is based on a principle of complementarity. This means that the ICC can only act when a national court is unable or unwilling to carry out a prosecution itself because the ICC was not created to supplant the authority of the national courts. However, when a state’s legal system collapses or when a government is a perpetrator of heinous crimes, the ICC can exercise jurisdiction. What is the difference between the ICC and other international courts such as the international criminal tribunals and the UN’s International Court of Justice? The international criminal tribunals in Rwanda and former Yugoslavia can only try individuals who committed crimes against humanity in those territories over a specific period of time. The International Criminal Court, on the other hand, can rule on all crimes committed against humanity regardless of its location so long as they have occurred after July 1, 2002. The role of the International Court of Justice is to rule on arguments that occur between governments. Unlike the International Criminal Court, it does not have the ability to try individuals. Who funds the court? The ICC, as an independent body, is funded primarily by its member states. The contributions of each state are determined by the same method used by the UN, which roughly corresponds with a country’s income. Additional funding is provided by voluntary government contributions, international organizations, individuals, corporations, and other entities. The United Nations may provide funding if it is approved by the General Assembly and is related to a "situation" referred to the court by the Security Council.
  • International Law
    Africa and the International Criminal Court
    The International Criminal Court has sparked controversy with its case selection and pursuit of justice in Uganda and Sudan.