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Misguided Criticisms of the International Criminal Court

Kenyan President Uhuru Kenyatta traveled to the International Criminal Court (ICC) last week to appear before trial judges, who will decide whether to continue pursuing charges of crimes against humanity for his role in 2007 post-election violence in Kenya. Kenyatta, who faces charges for allegedly organizing rape, murder, and forced deportation against people in the Rift Valley, asked that the case be terminated for lack of evidence. However, the prosecution has accused the Kenyan government of intimidating witnesses and withholding incriminating phone and bank records, and called for an indefinite adjournment of the trial to provide time to obtain the records.

Advocates of the court perceive Kenyatta’s arrival in The Hague as underscoring the ICC’s legitimacy and a step toward international criminal accountability, as he is the first sitting head of state to face trial since the Nuremberg trials and to appear before the ICC. Some worry, however, that the Kenyan president has used the ICC indictment to rally domestic support, pointing to the fanfare that awaited Kenyatta when he returned to Kenya. Moreover, the possibility that the Kenyatta case may collapse because the government is withholding evidence raises questions regarding the court’s capacity to prosecute crimes without cooperation from national governments.

In addition to such concerns, the ICC has received a variety of criticism. The African Union, for example, has accused the court of anti-African bias. One of the most vocal critics is Ugandan President Yoweri Museveni, who charged the ICC with “shallowness” for pursuing the Kenya cases. “African leaders should review their relationships with the ICC during the next summit,” Museveni said at a celebration of Uganda’s independence. These critics highlight that all of the court’s nine investigations are in Africa. These criticisms are misguided, however, as they overlook the history of current ICC cases and the court’s jurisdiction.

According to the Rome Statute, the court can only investigate cases in which, (a) an alleged crime was committed by a citizen of a state party to the Rome Statute; (b) the crime took place on the territory of a state party or the state has otherwise accepted court jurisdiction; or (c) the UN Security Council has referred the situation to the prosecutor. Chief Prosecutor Fatou Bensouda said herself that the court is “not in Africa by choice.” In four of the nine countries with ICC investigations — Uganda, the Democratic Republic of the Congo, the Central African Republic, and Mali — the heads of states invited court intervention. In two others, Sudan and Libya, the UN Security Council referred the situation to the court. The ICC investigations in Kenya and Cote d’Ivoire are the only ones initiated by the ICC chief prosecutor.

Constraints on the court’s jurisdiction also explain the absence of investigations into alleged international crimes in conflict zones such as Syria, Iraq, and Palestine, which are not party to the Rome Statute and have not otherwise accepted ICC jurisdiction. Without a UN Security Council referral, the court cannot legally intervene in these situations. For example, in May 2014, China and Russia vetoed a referral of the situation in Syria to the court, a move criticized by Physicians for Human Rights (PHR), which has long called for Syria’s referral. Regarding Palestine, the territory’s position as a non-member observer state in the United Nations enables it to become party to the Rome Statute, but the Palestinian Authority has not yet signed the treaty – nor otherwise authorized the court’s jurisdiction.

By focusing only on prosecutions, critics of the court overlook the Trust Fund for Victims (TFV) – the court’s sister organization, which provides material, psychological, and physical support to victims of crimes under ICC jurisdiction, even before successful prosecutions. Though underfunded and reaching only a portion of victims, this assistance appeals to ideals of restorative justice, which aim to repair the harm suffered by victims, not just punish perpetrators. The TFV currently is providing assistance to more than 100,000 victims in Uganda and the Democratic Republic of the Congo, and plans to expand its assistance to Kenya and Cote d’Ivoire in 2014 and 2015. Completion of trials will also open up the possibility for reparations, in addition to assistance.

Trials at the ICC and assistance from TFV are important steps toward justice for victims of international crimes. For example, a PHR study about post-election violence in Kenya found an increase in sexual assaults during that time and is now pursuing a public interest lawsuit against the Kenyan government to seek justice for survivors. Comprehensive justice for these survivors would include direct assistance and prosecutions at the international, national, and local levels. Such prosecutions would end the culture of impunity that facilitates these crimes, strengthening justice at both the international and local levels.