Why is the International Criminal Court so bad at prosecuting war criminals?

“Peace and justice are indivisible,” said Kofi Annan, then-Secretary-General of the United Nations, in 1997. “The International Criminal Court is the symbol of our highest hopes for this unity of peace and justice.”

The idea of some kind of internationally arbitrated justice system to preserve peace and punish crimes against humanity has become a popular one, spawning the creation of the International Criminal Court (ICC) in The Hague, which was enacted in 1998 and opened in 2002. At face value, it would seem uncontroversial — who would be opposed to prosecuting crimes against humanity? But the ICC has attracted criticism for both its design and execution. Writing in the Journal of Democracy, Duncan McCargo argues that even in concept, an international justice system is flawed and perhaps unworkable.

“Transitional justice” is the umbrella term which encompasses both South Africa-styled truth and reconciliation commissions and specially created sentencing courts. Both models have been used as a means of reconciling war-torn nations and apportioning blame for atrocities. Perhaps the first real application of international transitional justice came at the Nuremberg and Tokyo war crimes tribunals of Axis military leaders after World War Two. The trials garnered widespread support in the victorious Allied nations: after many long years of war and genocide, conventional wisdom held that it was time for an accounting.

Of course, those trials were not without their critics. Radhabinod Pal, the judge who represented India on the Tokyo tribunal, dismissed them as an imperialistic “victor’s charter” — the Allies excluded themselves from all crimes, he reasoned, such as the mass targeting and bombings of civilians (as happened when U.S. forces firebombed the wooden residential areas of Tokyo), while they were in control of choosing who should be prosecuted (Emperor Hirohito, who was reportedly willing to take the fall for Japan’s war atrocities, was conveniently let off the hook by American postwar forces). “About this whole judgment, there is the spirit of vengeance,” said Robert Taft, a leading Republican U.S. senator, whose vocal opposition to the tribunals was memorably saluted in Profiles in Courage. “And vengeance is seldom justice.”

The creation of the ICC was partly an attempt to answer criticisms of imperialism or bias, but McCargo points to the fact that of the 36 people the ICC has indicted in the entirety of its existence, all 36 have been African leaders. This implies unfair selectivity at best, and smacks of neocolonialism at worst.

Over its entire history, the ICC has successfully convicted only two people.

In a practical sense, the ICC’s efficacy has also come under scrutiny. For a start, despite its growing budget (which in 2015 alone is projected to top $152 million), the court has only successfully convicted two people. There’s also the matter of several high-profile “debacles” in recent years. In December 2014, the case against Kenyan leader Uhuru Kenyatta for inciting post-election violence in 2007 collapsed amid claims of sabotage by the Kenyan government. The 2008 indictment of Sudanese President Omar al-Bashir for crimes against humanity committed in the region of Darfur has similarly failed miserably. Seven years later, Bashir remains in power and continues to travel freely throughout Africa. He even recently visited South Africa, which, despite being a member state of the ICC, allowed Bashir into the country and looked the other way as Bashir fled while South Africa’s High Court prepared to demand his arrest on the 2008 charges.

Why is the ICC’s success rate so low? According to McCargo, the concept of transitional justice is rooted in an ideology of “legalism,” which regards justice as superior to politics — as “somehow suprapolitical and even beyond criticism.” This can be a counter-productive basis for the pursuit of war criminals, as it suggests that politics has no role in solving what are often inherently political problems. It universalizes the issues, charges McCargo, applying lofty and vague notions of “justice” while glossing over the complicated facts. “Transitional justice does not, as a rule, pay much attention to the messy particularities of history,” which undermines its capacity to provide peaceful solutions to violence, while arguably exposing it to political manipulation.

The Cambodian case illustrates this. In 2003, the UN helped to establish the Extraordinary Chambers in the Courts of Cambodia (ECCC) in an attempt to try surviving Khmer Rouge leaders for the war crimes they committed during the genocide of 1975–1979. Many have criticized this international judicial approach for an alleged failure to take into account the unique and complex situation on the ground in Cambodia. Not only did the genocide claim the lives of nearly one-fourth of the nation’s population, but the lines between victims and perpetrators often became blurred during the violent frenzy. The subsequent government of the Cambodian People’s Party (CPP) under the leadership of Prime Minister Hun Sen (who has stubbornly held the reins of power on-and-off since 1985), has drifted further towards authoritarianism, dashing the West’s hopes for a peaceful transition towards democracy. So far, the ECCC has indicted only five people: one died before he could be convicted, one was acquitted, and three others were found guilty.

McCargo charges that the UN’s involvement in the Cambodian reconciliation process has caused more harm than good — lending credence to fears that the West is intervening while claiming moral high ground. For some in the Cambodian government, the UN’s forthright intervention has aroused suspicions that the West is using the tribunal as a means of ousting the CPP. Hun Sen has done his best to sabotage it while still claiming his title as Cambodia’s savior from the Khmer Rouge.

Whether in The Hague or Cambodia, writes McCargo, the UN’s involvement in complex local conflicts under the banner of “transitional justice” can backfire and entrench further political despotism. Downplaying the role of politics and the historical context of a situation can open up tribunals to exploitation on the ground — particularly in those cases where there has, in fact, been little meaningful political change.

The healing process for nations may not be best served by a cumbersome international judicial process after all, says McCargo. A better way to come to terms with a difficult past would be through independent national inquiries — which can foster internal debates and discussion — supplemented by prosecutions within national court systems. Although its involvement is well-intentioned, the UN may be inadvertently preventing war-torn nations from healing — wresting control out of the hands of the aggrieved communities while making it harder for the victims to actually pursue justice and win peace.

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The source: Duncan McCargo, “Transitional Justice and its Discontents,” Journal of Democracy, Vol.26 No.2 (April 2015)

Photo courtesy of Shutterstock/Ioan Panaite