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After Kenyatta Setback, ICC Struggles to Move Ahead

  • Lisa Bryant
  • VOA News

FILE - Kenya President Uhuru Kenyatta, second right, talks to his defense team when appearing before the International Criminal Court (ICC) in The Hague, Netherlands, Oct. 8, 2014.

FILE - Kenya President Uhuru Kenyatta, second right, talks to his defense team when appearing before the International Criminal Court (ICC) in The Hague, Netherlands, Oct. 8, 2014.

The International Criminal Court was created to pursue some of the world's most heinous crimes in places unable to deliver justice. No perpetrator is too powerful to face charges at the Hague-based tribunal. Or that was the idea. But the collapse of the case against Kenya's President Uhuru Kenyatta and other setbacks are fueling a debate about the ICC's effectiveness and relevancy.

A victory for the International Criminal Court. Earlier this month, appeals judges at The Hague tribunal upheld the conviction of Congolese warlord Thomas Lubanga. The sentence closed the tribunal's first-ever case. And it brings to three the number of cases the court has concluded since becoming operational in 2002 - including one acquittal.

But December is better remembered for the collapse of the prosecution's case against Kenya's President Uhuru Kenyatta. The ICC's chief prosecutor, Fatou Bensouda, filed a statement withdrawing allegations related to post-election violence in Kenya. She blamed Kenyan authorities of intimidating witnesses and failing to deliver documents the prosecution claims were key in building its case.

Today, the Kenyatta case is strengthening debate around a fundamental question: Should the ICC continue to exist?

For Anthony Dworkin, a rights specialist at the European Council on Foreign Relations, the answer is 'yes.'

"Well, I believe in the principle of accountability for these terrible crimes," Dworkin said. "And I think if the international criminal court was eliminated now, that would be a devastating blow for international justice. So I really would oppose any move to eliminate the ICC."

Many disagree. Critics argue the ICC is influenced not just by justice but by politics. The United Nations Security Council refers investigations to the ICC. But three of its members - Russia, China and the United States - are not member states. Critics say its accomplishments - just two convictions in a dozen years - do not justify the hefty costs of running it. And some African leaders claim the court is biased, since all those now on trial are African.

Steve Lamony is senior advisor for the Coalition for the ICC, an international umbrella group. He lists a number of court successes this year, including getting charges confirmed against former Ivorian President Laurent Gbagbo, whose trial begins next year. He says the court needs the resources and support to do its job effectively - including from its African critics.

"The majority of the referrals for the situations in Africa have come from Africa - beyond the referrals by the Security Council and others…as long as there's evidence indicating they should pursue those cases, I think they should do that," Lamony said.

In the Kenyatta case, analyst Dworkin says the prosecution stretched too far.

"To pursue a case against an African head of state without the evidence to sustain the case is a very unfortunate position to be in - even if it simply relates to the fact it's hard for a court to build a case against a head of state and government that's not cooperating," Dworkin said. "And it's going to be impossible for them to do that without stronger international support."

But this month, the court stepped back when it felt it was not getting that international backing. Chief Prosecutor Bensouda told the U.N. Security Council she had suspended an investigation into alleged war crimes in Darfur, for lack of support from the body. Observers say that is unlikely since Security Council member China has traditionally supported Sudan. Sudanese President Omar al-Bashir - who has an ICC arrest warrant against him for genocide and other charges - claims victory.

"The U.N. Security Council itself seems to be uncommitted and has not taken any action where the government of Sudan itself has failed to arresting Omar al-Bashir," said ICC Coalition advisor, Steve Lamony. "The Security Council needs to take more concrete action in cases where its member states fail to abide by its own resolutions."

In other cases, the tribunal is reaching out. Beyond Africa, current investigations include cases in Columbia, Georgia, Honduras, Iraq and Ukraine. In Afghanistan, Bensouda says she is looking into the U.S. military's alleged use of so-called "enhanced investigation tactics" or torture. Washington is not a signatory of the Rome Statute that established the court - but Afghanistan is.

Analyst Dworkin says the Afghanistan example underscores the ICC's fundamental dilemma.

"The more it goes after cases which are politically difficult, which involve major powers like the United States, the less likely it is to achieve results, the more likely it is to provoke hostility among the big powers," Dworkin said. "On the other hand, I don't think it's a viable way forward for the court to look like it's simply justice for the weak countries of the world."

The solution, Dworkin says, is not to abolish the court, but to strengthen its ability to do its job properly. And to be more realistic about what it can achieve - and what it can not.