- - Tuesday, December 27, 2016

BERLIN — It’s an unusual trial. The court itself is in the docket, and the defense isn’t going well.

The Hague-based International Criminal Court, launched at the turn of the century as an ambitious effort to bring international justice to states around the world, has been buffeted by a series of blows, including rising criticism from major powers and high-profile defections from smaller countries that say the ICC is biased against them.

The exits of Burundi, Gambia and South Africa in October and the threatened pullouts of Kenya, Namibia, Uganda and others from the court’s jurisdiction may reflect less a principled stand over fairness than a fear of prosecution. But international legal scholars say the willingness of member states to take the drastic step of leaving altogether is a major blow to the court’s legitimacy and long-term health.

“It is damaging to the court’s reputation if states withdraw,” said Andreas Schuller, a lawyer specializing in international crimes at the European Center for Constitutional and Human Rights in Berlin. “If you look into the reasons why behind their decisions, I think it’s most worrying for the people in those states that their leadership is withdrawing.”

In a blog posting for ForeignPolicy.com, Indiana University international affairs professor David Bosco wondered aloud whether the court was “crumbling before our eyes.” Each defection, he said, reduces the court’s ability to take on cases down the line.

“Further departures would diminish the court’s legitimacy and limit the scope for future investigations,” he wrote. “Absent a resolution from the U.N. Security Council — tough to get in the best of times — the court can only investigate when states give it jurisdiction over their territory and nationals. Exiting states aren’t merely expressing displeasure; they are shrinking the court’s room to operate and undermining the court’s claim to be a bulwark against atrocities.”

Donald Trump’s upset victory in the November presidential election suggests the ICC will not have a strong advocate in Washington over the next four years.

The court was established in 1998 after the violent breakup of Yugoslavia, and the genocide in Rwanda led to a chorus of calls for a mechanism to prosecute the crimes against humanity and other atrocities. That made the ICC the world’s first permanent war crimes court. Similar panels had been established temporarily to handle specific cases, such as the Nuremberg tribunal that prosecuted Nazis after World War II.

Supporters said a permanent tribunal, which began functioning in 2002, was needed to take over prosecution in war-torn lands or countries where the judiciary proved unable or incapable of handling cases. For the U.S., the relationship with the ICC was complicated from the start.

President Clinton signed the Rome Statute treaty that created the court, but the Senate never ratified it after bipartisan questions arose about U.S. recognition of rulings from justices other than those on the Supreme Court. Other major powers such as Russia, China and India, citing their own concerns about sovereignty and the exposure of their citizens and soldiers to the ICC, also opted not to join.

Russia ‘unsigns’

Piling on the criticism, Russian President Vladimir Putin in November said Moscow was “unsigning” the founding treaty document setting up the ICC. Like the U.S., Russia signed the founding treaty document but never formally ratified its membership.

Shortly before the move, the Hague-based court concluded in a legal analysis that the Kremlin’s annexation of Crimea from Ukraine amounted to an occupation. Also, human rights activists have demanded that Russia’s airstrikes on civilian areas of Syria in support of President Bashar Assad be deemed war crimes.

“Unfortunately, the court failed to meet the expectations to become a truly independent, authoritative international tribunal,” said the Russian withdrawal statement, calling the court “ineffective and one-sided.”

The ICC has been busiest in Africa, where it operates all six of its field offices, but many on the continent argue that they have been singled out unfairly and lack the resources that Washington and Moscow have to fight back.

Zimbabwean President Robert Mugabe has called for all African Union members to quit the court en masse. But African countries are too divided over the court for that to happen, analysts said.

“There is no one common position among the African states,” said Mr. Schuller.

Still, many Africans maintain that the ICC is nothing more than a tool that suits the needs of powerful countries. The issue came to a head this fall when Burundi, South Africa and Gambia announced within days of one another that they were leaving the ICC. Gambian Information Minister Sheriff Bojang at the time denounced the ICC as “an International Caucasian Court for the persecution and humiliation of people of color, especially Africans.”

Mr. Bojang and others said the court’s record of convictions proves their point: Since it began hearing cases in 2002, the court has indicted a total of only 39 individuals — all of them African. All of the court’s outstanding litigation involves sub-Saharan countries except for cases in Georgia and Libya, according to the ICC’s website.

African abuses

But a glance at the countries that have withdrawn calls the African leaders’ criticism into question.

South African President Jacob Zuma has insisted that provisions in the ICC’s treaty conflicts with the country’s constitution and rules on diplomatic immunity, but Mr. Zuma has repeatedly butted heads with local judges over corruption charges and impugned the justice system in his country.

Mr. Zuma “is opposed to any strong judiciary in general, whether domestic or international,” said Mr. Schuller. “That is a general position of a president who wants to avoid being held to account on corruption and a number of other issues.” Opposition parties are now challenging South Africa’s withdrawal in national courts.

Burundian President Pierre Nkurunziza withdrew from the ICC while the court was investigating violence in his country after Mr. Nkurunziza scrapped term limits in order to seek a third term in office.

President Yahya Jammeh of Gambia likewise has been accused of resisting the rule of law. Tensions have been running high in the tiny West African country since Mr. Jammeh lost elections this month after more than 20 years in power. After first accepting defeat, the president is now threatening to annul the election results.

The ICC dropped charges against Kenyan President Uhuru Kenyatta, who was accused of fomenting violence against his political rivals in 2007 before he became head of state. Although Mr. Kenyatta has yet to formally declare that he would pull Kenya out of the court, he said this month that Nairobi’s membership would have to be reconsidered given the ICC’s supposed lack of impartiality.

“The Kenyan cases at the International Criminal Court have ended, but the experience has given us cause to observe that this institution has become a tool of global power politics and not the justice it was built to dispense,” he said in a speech marking Kenya’s independence day.

Court watchers say the ICC could have focused more on crimes in non-African states during its early years, but the court has made recent efforts to open preliminary investigations into cases such as the war in Afghanistan, the suspected torture of Iraqis by British troops, and war crimes and human rights violations in Colombia, Ukraine and other non-African countries.

Africans have praised some of the ICC’s rulings, including the verdict this summer sentencing an Islamic militant for the destruction of UNESCO heritage sites at Timbuktu in Mali. The militant was the court’s fourth conviction. The other three were from Congo.

Some Africans are happy that they have at least some recourse to justice.

When the court opened the trial this month of Ugandan Dominic Ongwen, a former commander in Joseph Kony’s Lord’s Resistance Army charged with war crimes that include using child soldiers and sexual slavery, local religious and community leaders said they were grateful for the ICC.

“It is a milestone in defining one way in the attempt to secure justice and accountability for the people of Northern Uganda, and ultimately to help people reconcile with their past and move towards peace,” the leaders said in a statement.

Still, Mr. Schuller said, it’s important for wealthy and powerful countries to voice their support for the fledging court.

“It’s a young institution which still needs to develop, and that always takes a lot of time,” he said. “So it’s important that other states step up and announce their continuing support.”

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