In 1998, an idea that had been in the making for about 50 years suddenly became reality when 120 states adopted the Rome Statute of the International Criminal Court at a United Nations conference, thus establishing the ICC.
And within four years, on July 1, 2002, the Rome Statute, the founding treaty of the International Criminal Court, came into force after 60 states ratified it.
A long-held dream was fulfilled. The world’s first and only permanent international criminal court was born. Expectations were high that it would help put an end to impunity for the perpetrators of the most serious crimes of concern to the international community and thus hopefully contribute to the prevention of such crimes.
“For the first time in the history of humankind, states decided to accept the jurisdiction of a permanent international criminal court for the prosecution of the perpetrators of the most serious crimes committed in their territories or by their nationals,” says the court on its website
The feat was greeted with enthusiastic optimism. With the Rwandan genocide and the widespread atrocities that accompanied the breakup of the former Yugoslavia in the 1990s still fresh in the memory of the world, hopes were high that the anticipated court would tame the impunity of dictators, who commit human rights violations without fear of retribution from any justice system governed by international law.
The statement of then UN Secretary-General Kofi Annan to the International Bar Association meeting in New York on June 12, 1997 on the occasion of its 50th anniversary, a full year before the Rome Statute treaty was adopted by the UN General Assembly and opened for signature, was full of hope for universal justice. “Peace and justice are indivisible. They are indivisible in the former Yugoslavia, in Rwanda – in all post-conflict situations where the dawn of peace must begin with the light of justice. The international criminal court is the symbol of our highest hopes for this unity of peace and justice,” he said.
“In the prospect of an international criminal court lies the promise of universal justice. That is the simple and soaring hope of this vision. We are close to its realisation. We will do our part to see it through till the end. We ask you to do yours in our struggle to ensure that no ruler, no state, no junta, and no army anywhere can abuse human rights with impunity. Only then will the innocents of distant wars and conflicts know that they, too, may sleep under the cover of justice; that they, too, have rights, and that those who violate those rights will be punished,” Annan added.
Such hope. Such high expectations. As the ICC, one of the permanent pillars of the international legal system, celebrates its 20th anniversary this Friday, July 1, 2022, it is worth looking back to see how these lofty aspirations have fared.
As of January 2022, the Office of the Prosecutor (OTP) had brought 30 cases before the court, which has so far issued five convictions that have not been overturned and four acquittals in cases dealing with the ICC’s core mandate of genocide, war crimes , crimes against humanity, and crime of aggression.
The ICC counts the five convictions of three Congolese, one Ugandan, and one Malian among its successes, but no high-ranking government official has ever been found guilty.
The first conviction came in the year of its 10th anniversary, in the case of Congolese national Thomas Lubanga Dyilo, the alleged founder and president of the Union des Patriotes Congolais (UPC) and commander-in-chief of its armed wing, the Forces Patriotiques pour la Libération du Congo (FPLC). On March 17, 2006, Lubanga became the first person to be arrested under a warrant issued by the ICC. His trial began in 2009 and in 2012, he was found guilty of recruiting and using child soldiers between 2002 and 2003, during the civil war in the Democratic Republic of the Congo (DRC). He was sentenced to 14 years in prison for war crimes.
The trial of former rebel leader and one-time Congolese army general Bosco Ntaganda opened in September 2015 and in July 2019, he was found guilty of five counts of crimes against humanity and 13 counts of war crimes allegedly committed in the Ituri region of eastern DRC while he was deputy military head of the rebel group FPLC in 2002-2003. In November 2019, he was sentenced to 30 years in prison.
Another Congolese rebel leader, Germain Katanga, one of the commanders of the Forces de Résistance Patriotique d’Ituri (FRPI),was in March 2014 convicted of war crimes and crimes against humanity committed during an attack against Bogoro village in Ituri, Eastern DRC, in February 2003. The attack was said to be a joint effort with the Front des Nationalistes et Intégrationnistes (FNI) led by Mathieu Ngudjolo Chui. The ICC issued warrants for the arrest of Katanga in 2007 and Ngudjolo Chui in 2008. Katanga was sentenced to 12 years in prison in May 2014. His sentence was later reduced and he completed it in January 2016 in the DRC. He faces prosecution at home for other war crimes.
Ngudjolo Chui was acquitted of crimes against humanity and war crimes charges on December 18, 2012, with the three judges saying the Prosecutor had failed to prove that he was the commander of the combatants who attacked the village. His acquittal was affirmed by the Appeals Chamber on February 27, 2015. This was the first acquittal of the ICC. He was later deported to DRC after his applications for asylum in Switzerland and the Netherlands were rejected.
The latest conviction was of Ugandan Dominic Ongwen, an alleged former Lord’s Resistance Army commander who was charged with war crimes and crimes against humanity committed in northern Uganda between July 2002 and December 2005. The crimes included sexual and gender-based violence and conscripting and using child soldiers in hostilities. On February 4, 2021, he was found guilty of 61 counts and on May 6, 2021, he was sentenced to 25 years of imprisonment. His appeal is still before the Appeals Chamber.
Prior to the start of his trial on August 22, 2016, Malian Ahmadi al-Faqi al-Mahdi, an alleged member of Ansar Eddine, a movement associated with Al Qaeda in the Islamic Maghreb, pleaded guilty to destroying nine mausoleums and a mosque in Timbuktu. This was the first case concerning damage to cultural artefacts to be heard at the ICC. Al-Mahdi was found guilty on September 27, 2016, and sentenced to nine years imprisonment. On November 25, 2021, the Appeals Chamber reviewed his sentence, reducing it by two years. He will complete his sentence on September 18, 2022.
These successes are just one side of the coin for the ICC, which has also suffered several disappointments.
The Kenyan cases constitute one of the court’s low moments. Kenyan President Uhuru Kenyatta was the first serving head of state to appear before the court in 2014, although he had been charged before assuming office in 2013. He and his co-accused, Francis Kirimi Muthaura, a high-ranking government official, faced five counts of crimes against humanity allegedly committed during the 2007-2008 post-election violence that rocked the country after a disputed presidential election in December 2007. In 2015, the prosecution asked the court to terminate the proceedings against the two due to insufficient evidence.
The second case from the Kenya situation, against Deputy President William Ruto and his co-accused, Joshua Arap Sang, also ended unsatisfactorily for the prosecution and the victims. At the end of the prosecution’s case, the defence requested the court to terminate it and acquit the two, saying the evidence presented was too weak to sustain a conviction, even if no defence case was presented. In April 2016, the court agreed to terminate the case, but declined to enter a judgment of acquittal, making it clear that the case could be prosecuted afresh in the future if the prosecution finds new evidence. There was a general consensus among the trial judges that there had been witness interference and political meddling in the case.
Another high-profile case that did not end well for the prosecution was that of former Ivorian president Laurent Gbagbo. He was charged with crimes against humanity allegedly committed in 2010 and 2011 after he refused to concede defeat in a national election. He was later acquitted, with the court citing insufficient evidence.
Former Sudanese president Omar Al Bashir, who was deposed by the military in 2019, has been on the ICC’s wanted list for more than 10 years for crimes against humanity, war crimes, and genocide in Darfur. His case is unique in the history of the ICC because in 2009 it was the first time the court issued an arrest warrant against a sitting head of state. In 2010 the first (and until now) only charge of genocide before the court was added. The case resulted from the first referral by the UN Security Council to the ICC Prosecutor. The council asked the OTP to investigate the situation in Darfur. Bashir’s was one of six cases that arose from the Darfur investigation but only one of these cases – against Ali Muhammad Ali Abd-Al-Rahman – has until now led to a trial in The Hague.
ICC Prosecutor Karim Khan visited Khartoum in 2021 and one of the items on his agenda was to try to secure the surrender of Bashir, who has been in the custody of the new government since his ouster, to the ICC. However, although the authorities pledged they would hand him over, sources speculate that this is unlikely because some of the military leaders now in power could be implicated in the crimes.
The case of former DRC vice-president Jean-Pierre Bemba caused a major upset at the court. In March 2016, he was convicted under the doctrine of command responsibility for failing to prevent his militia from committing crimes in the Central African Republic (CAR). The crimes included murder, rape, and pillaging. He was sentenced to 18 years in prison. However, the ICC Appeals Chamber overturned the war crimes conviction and acquitted him in June 2018 after finding that the trial chamber had erred in declaring that Bemba did not take enough measures to prevent the crimes committed by his militia.
Africa has contributed a great deal to the history of the ICC. As seen above, the vast majority of the cases and all actual trials the ICC has dealt with thus far have been from Africa. African states supported the creation of a strong international court in the hope that it would deal with some of the atrocities that have for decades plagued the continent. The most recent at the time the drive for the international court was gathering pace was the Rwandan genocide of 1994. Many African countries thought the tragedy could have been prevented if the international community, including the United Nations, had taken heed of the warnings of the impending violence and intervened in time.
African countries are the most numerous at the Assembly of States Parties (ASP) to the Rome Statute, with 33 members, compared to 25 states from Western Europe, 28 from Latin America and the Caribbean, 18 from Eastern Europe, and 20 from Asia. Some 13 other African countries have signed the Rome Statute, although they have yet to ratify it.
However, Africa’s enthusiasm has considerably cooled over the past 20 years, with many of the countries accusing the ICC of bias against African states while turning a blind eye to crimes in other parts of the world. They argued that their concerns are borne out by the fact that as at 2019, all but one (the situation of Georgia) of the 11 situations under formal investigation by the ICC Prosecutor were in Africa. This led to several African countries threatening to leave the ASP, although it is only Burundi that eventually did in 2017.
Recently the Prosecutor started investigating crimes committed against civilians in Afghanistan, Bangladesh and Myanmar, Libya, Venezuela, and the Philippines. It has also shown great interest in Ukraine after the Russian invasion in February 2022. It remains to be seen whether this will pacify African states, which firmly believe that the ICC has for the past 20 years unfairly focused its attention on the continent.
The decision to pursue investigations in Afghanistan has not been without controversy, especially after Khan announced in September 2021 that the prosecution would focus on the Taliban and the Islamic State, while “deprioritising” questions about the actions of foreign forces. Critics pointed out that this just goes to show that the court was pliable to pressure by powerful states.
In 2020, his predecessor, Fatou Bensouda, and other senior ICC officials suffered the wrath of the United States when the OTP attempted to investigate whether US forces committed war crimes in Afghanistan. The US, which has never supported the court, mounted a sustained attack against the ICC, culminating in the Donald Trump administration’s financial and visa sanctions against the officials. The sanctions were later lifted by the Joe Biden administration.
Announcing the restrictions, Secretary of State Mike Pompeo dismissed the ICC as a “thoroughly broken and corrupted institution” and accused the court of “illegitimate attempts to subject Americans to its jurisdiction”.
The first 20 years of the ICC have certainly not been without controversy. This anniversary provides a moment to reflect on the expectations with which the creation of the court was greeted, and to what extent these hopes have been fulfilled. It also an ideal moment to reflect on the court’s future in the face of current geopolitical happenings that will certainly have an impact on the world order.
