Are you Sudanese strongman and International Criminal Court fugitive Omar al-Bashir? If so, today you may be celebrating International Criminal Justice Day, which marks the establishment of the same ICC that’s out to get you.
The Hague-based court has only existed for a little over a decade, but in that time it has received mixed reviews for its inability to do anything other than bring toothless indictments. With no enforcement power, the ICC needs local governments to turn over fugitives; they usually don’t. al-Bashir recently visited Nigeria, for example, even though the Nigerian government is a signatory to the treaty that created the court. Though the world body brought charges of human rights violations against al-Bashir in 2009 for his hand in the brutal Darfur massacres of earlier in the 21st century, the rogue leader can be found anywhere but a courtroom, and the Hague body isn’t empowered to do a single thing about it.
What happens without enforcement power? Besides not giving al-Bashir his day in court, the ICC also can’t promise victims of an ICC target much justice. That invites local justice by other means. In perhaps the most famous case, the late Libyan dictator Muammar Gaddafi, indicted by the ICC for crimes against humanity, fell into the hands of an armed opposition during Libya’s civil war; he was shot dead on the spot rather than turned over for prosecution. That wasn’t particularly surprising: the ICC indictment had been, at best, a symbolic step.
So what’s really being celebrated today? An ICC representative, Estonian diplomat Tiina Intelmann, tries to sum it up, at the Huffington Post:
Today, as many states are celebrating the achievements of international criminal justice, the Court finds itself dealing with the fact that one State Party to the Rome Statute has recently hosted a high-level visitor against whom the Court has issued two arrest warrants.
Not much to celebrate. That “high-level visitor” she’s referencing would be al-Bashir again, whose ICC war crimes indictment hasn’t affected his travel schedule around his neighborhood for years—long before his recent jaunt to Lagos. Intelmann knows this, of course:
Acting collectively as an Assembly, the 122 States Parties have consistently voiced strong commitment to cooperate with the Court and recognized their responsibilities and obligations from arresting individuals to ensuring the protection of witnesses. Acting individually or regionally though, States sometimes find it politically challenging or outright impossible to cooperate and have even collectively undertaken not to comply with the Court.
Starkly, every case brought by the ICC in its first decade-plus has involved African leaders (a helpful summary, by the Institute for Security Studies’ Solomon Dersso, is here). An analysis in Kampala’s Observer newspaper by reporter Emma Mutaizibwa argued that the ICC’s dependency on local governments has let politicians use ICC indictments as political footballs. Sub-Saharan African nations enthusiastically embraced the ICC’s formation. Other regions and countries didn’t—the U.S., for example, isn’t a signatory. Though envisioned as a global body, the ICC so far appears to be evolving into a narrow, heavily political instrument. “Part of the African leadership has used the ICC to solve its internal problems,” a local law professor told Mutaizibwa, the Observer writer.
