Bias and Borders of Court

by Jordan Riley

The International Criminal Court (ICC) has been hailed as a trailblazer and a win for the international criminal justice establishment. Unfortunately, this institution’s promise for expanding justice has fallen short. Limitations on the capacity to investigate, bias and selective prosecution have inspired doubts regarding the court’s competency and legitimacy. Since its inception in 2002, the ICC has dealt with scrutiny regarding the geographical origins of those brought before the court. There seems to be a staggering uniformity in the defendants at the ICC: all are African. Members of the African Union believe that the ICC targets the continent unfairly. Indeed, signs point to heightened scrutiny upon African countries and individuals.

However, a pragmatic approach bids the ICC to take what it can get. Factors including probability for success, availability, inquiries for intervention and bias of the United Nations Security Council (UNSC) push the ICC to target Africa out of convenience. It is important to examine the specifics of the ICC’s current cases and the relationships between countries within ICC jurisdiction and their connection to UNSC permanent members. If the ICC’s effectiveness is tainted by bias from the UNSC or elsewhere, these ties should be severed.

African nations stand alone in the list of nations that have brought cases to the ICC, been pursued by the ICC or referred by the UNSC. While such focus can be beneficial, some conclude that the ICC has taken to bullying and targeting African nationals exclusively.7 Rising tensions between the African Union and the ICC have begun to damage the ICC’s credibility as claims of targeting and unnecessary international trials have arisen.5, 7 Nevertheless, examining specific cases of “bias” is critical to understand the ICC’s focus on Africa and the mechanisms it uses to investigate crimes.

Success probability, state inquiry and UNSC bias push the ICC to pursue African cases.

In order to proceed, we must examine the three ways the ICC can begin investigations. First, a state may request that the ICC look into the activities of a group for evidence of violations. Uganda, the Democratic Republic of the Congo (DRC), the Central African Republic (CAR), and Mali have taken this route. Second, the investigation can be begun by the prosecutor, which it has done in Kenya and Cote d’Ivoire in 2010 and 2011 respectively. Third, the UNSC can refer a case to the ICC to permit an investigation on the crimes of the Rome Statute. The UNSC has referred the cases of Darfur, Sudan, and Libya to the ICC.

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In all of these cases, the ICC has measured the potential evidence and made calculated decisions on whether sufficient evidence exists to warrant an investigation, let alone an indictment. When evidence is unconvincing, a situation similar to the attempted conviction of Uhuru Kenyatta may arise.

Kenyatta, the current president of Kenya, was under suspicion of crimes against humanity by prosecutor Moreno Ocampo for the 2007 violence that claimed approximately 1,300 lives following Kenya’s election. During the investigation, the Office of the Prosecutor postponed its investigation because it was not confident in the evidence, but eventually chose to move forward with the investigation and indictment. Kenyatta appeared before the ICC in October 2014 as the first serving head of state to come before the tribunal. In December 2014, the prosecutors chose to withdraw the charges against Kenyatta, reasoning that the Kenyan government refused to comply with the prosecution in providing essential evidence. Kenyatta was able to return to Kenya and continue to serve as president.

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Several cases justify the ICC’s focus on Africa. Uganda is a prime example.Ugandan President, Yoweri Musevini, presented the case against Uganda in 2003, prompting the ICC head prosecutor at the time, Luis Moreno Ocampo, to investigate the Lord’s Resistance Army (LRA). In 2005, warrants for the arrest of five of the LRA’s leaders, Joseph Kony, Raska Lukwiya, Okot Odhiambo, Dominic Ongwen, and Vincent Otti were included in an indictment comprised of 21 counts of war crimes and 12 counts of crimes against humanity. These crimes include sex trafficking, rape, the enlisting of child soldiers, pillaging, and murder on several occasions.

All but one of the accused, Lukwiya who was confirmed dead in 2006 and Ongwen who has been in custody since 2015 are still at large. The situation in the DRC was first brought to the ICC’s attention by Joseph Kabila, president of the DRC, against six individuals who have committed crimes within the jurisdiction of the ICC. Among the accused was Thomas Lubanga Dyilo, the alleged founder of the Union of Congolese Patriots (UPC), who was charged with enlisting children, the conscription of children, and using children to participate in hostilities. Dyilo was sentenced to 14 years imprisonment. The governments of CAR and Mali followed suit in later years by submitting referrals to prompt an investigation. In other investigations, the UNSC referred the situations in Darfur, Sudan, and Libya to the ICC. The prosecutor has pursued the authorization for an investigation into the situation in Kenya and Cote d’Ivoire. These cases exemplify and justify the ICC’s focus on Africa.

The UNSC’s case referral power imperils the ICC’s efficacy.

Cases likely to produce a guilty verdict are usually the cases where a government refers a faction within its own country. Warlords and international criminals with clear-cut evidence against them who are also sought after by their own governments have made perfect targets for the prosecutors at the ICC. While the ICC may not be influenced by bias against African states, the court is still subject to the whim of the UNSC and its bias. Independence and permanence buttress the ICC’s credibility, but the UNSC’s referral power damages the core of this legitimacy. The UNSC can refer a situation to the ICC and permit an investigation on the crimes of the Rome Statute. Further, the UNSC can suspend an ICC investigation for a year, under Article 16 of the Rome Statute. The limits of this suspension are unspecified, leaving the possibility of no limit if the conditions remain the same. As a result, justice is deferred and denied.

These factors are clearly problematic. The UNSC and ICC operate in different manners to achieve completely different objectives. The ICC aims to establish justice, while the UNSC operates to preserve peace among UN member states. The latter objective can be achieved through clandestine means, resulting in overlooking heinous crimes committed to create peace. Clearly, these objectives cannot co-exist; protecting allies often comes at the expense of justice. Although members of the UNSC are charged with ensuring international peace, self-interest may supersede the actions of the ICC. Because the ICC is not independent, the biases of member states on the UNSC make the organization incapable of acting upon clear violations.3, 6, 8 Also, the general assembly has no power over the UNSC, making the ICC even more limited by UNSC inaction or malpractice. Several scholars argue that the ICC should have complete independence to investigate and prosecute violators.4, 6, 8

But such proposals to increase the ICC’s independence would be met by members of the UNSC, especially the U.S., with vehement hostility.8 This negative sentiment helped create Article 98 of the Rome Statute, a loophole allowing the U.S. and others to circumvent extradition or prosecution of a U.S. citizen or servicemember by the ICC. It is clear that the UNSC operates on a bias that has no place in the mission of the ICC. The international community must take steps to weaken, if not completely sever, the relationship between these international bodies.

Focus on a singular region with winnable cases is preferable to an equal spread of lost causes.

Despite the fact that the UNSC is a monumental obstacle, other obstacles are subtle but just as limiting. For example, the Rome statute inadvertently established a significant limitation.2, 1 The Rome statute defined the four essential international crimes–genocide, crimes against humanity, war crimes, and the crime of aggression–but the strict definition impedes jurisdiction. While there is a wide range of particular crimes that may fall under these categories, such language can be exploited. Additionally, the ICC may only go after crimes committed by member states, referred by the UNSC, or by the state itself. This has established a finite and selective sort of justice that opens the door to bias from the permanent five members of the UNSC.

The rumor that the ICC has a bias in targeting African states is unfounded. The truth is that a combination of state cooperation with the ICC, limitations, and readily available sets cases of infers a greater chance of success for the prosecution. The ICC has been moderately successful as a quasi-independent court that must adhere to the UNSC. But this adherence has an unnecessarily strong sway over the ICC’s caseload, contributing to the problem of the court’s lagging speed and diminishing universality. International efforts should create a more independent and efficient court.

While this process is lengthy, it is necessary to alleviate inherent contradictions of the status quo. Although it may take years, the ICC has begun the process of bringing dangerous criminals to justice, something that cannot be said of many regional and local courts. Focus on a singular region with winnable cases is preferable to an equal spread of lost causes.

The ICC requires alternative legal mechanisms to realize its potential as an unbiased and powerful autonomous court. The ICC is justified in its pragmatic focus on Africa, as the cases it pursues require investigation. It is incorrect to chastise the institution for omitting other cases, especially considering the court’s strained resources and troubling relationship with the UNSC; the UNSC hampers the ICC’s autonomy and the permanent legitimacy. There must be an incentive for states to refer their cases to the ICC in the first place and ensure that the court dispenses universal rather than selective justice. It is time to rebuild faith in the potential of the ICC, a critical international institution of justice.

Jordan Riley graduated from Trinity University in 2016 with a Political Science degree.

The views expressed in this article are those of the writer. The Contemporary takes no position on matters of policy or opinion.

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