Africa, World

After a bruising year, the ICC plots a road to redemption

By Simon Allison 1 December 2016

It’s been a rough couple of months for the International Criminal Court. Bruised by the triple African withdrawal, battered by unexpected criticism from Russia and the Philippines, the court’s very future is under threat. But after years of sticking its head in the sand, it seems it might finally be learning a few lessons. Maybe all that bad press is exactly what it needed. By SIMON ALLISON.

In a courtroom in The Hague, the International Criminal Court (ICC) is about 26 witnesses into the trial of former Cote D’Ivoire President Laurent Gbagbo, and his alleged accomplice Charles Blé Goudé. Patience is wearing thin. There are at least another 100 witnesses to come – and that’s before the defence has even started.

These sessions are long and technical, and often boring. The judge is impatient with the prosecutor, who keeps leading the witness on. The defence keeps making passive-aggressive interjections. Goudé is slouched in his chair, stifling yawns. Even the interpreter is exasperated, interrupting proceedings several times to warn the lawyers to be more clear.

Only Gbagbo remains alert. He is immaculately dressed in a dark blue suit and waistcoat, his back straight, his face expressionless. He examines each piece of evidence submitted by the prosecution – the medical records, the death certificates, the witness statements – on a computer provided to him for the purpose. Next to him, two guards sit at another computer, occasionally breaking into muffled laughter. They look like they’re watching cat videos.

Gbagbo and Goudé have been charged with four counts of crimes against humanity: murder, rape and other forms of sexual violence, other inhumane acts, and persecution. The charges stem from post-election violence in Cote D’Ivoire in 2010-2011, which erupted after Gbagbo and his allies refused to give up power. At least 3,000 people were killed in the conflict. Their trial began in January 2016.

Having gone through the formalities, Witness 26 (an unofficial designation) is now testifying. He was injured by pro-Gbagbo supporters at an opposition rally; his brother was killed on the same day. He speaks through the interpreter, who strips all emotion from the words. The mechanical delivery only heightens the pathos of his words.

Prosecutor: “Mr Witness, you explain that you were injured by a bullet during a march in 2010. The bullet is lodged in your thigh to this day. Can you explain the impact this has had on your life?”

Witness: “I believe I am living a tragedy on a daily basis. Whenever I feel pain or a pulling sensation, memories keep flooding back with regard to the barbarities on that day. I feel… diminished, I don’t know what term to use. I believe this has considerably changed my life for the worse.”

Gbagbo, whose supporters fired the bullet still lodged in the upper thigh of the witness – on X-ray, it shows up as a searing white oval – remains impassive. From the viewing gallery, we can’t see the witness, but Gbagbo is looking straight at him as he delivers his testimony.

Witness: “On that day I experienced great atrocities. I’m sorry, but my life has been considerably affected and turned upside down. It’s eating me up inside. I can’t understand, I really can’t understand, how it got that bad.”

Forget, for a moment, the politics and controversy that surrounds the ICC, and just appreciate the moment: here in this bland, featureless courtroom – white benches, slate grey walls, light wood flooring – sits a former head of state being forced to account for crimes committed on his watch.

For Witness 26, at least, justice is being done.

Post-mortem

At the same time, in a conference hall just a few minutes away, representatives of the ICC’s 124 member states are meeting for their annual talk shop to assess how the court is doing, and how it can do better.

The mood is sombre: having announced their withdrawal last month, this is the last year that delegations from Burundi, Gambia and South Africa will be present, with fears that their triple withdrawal could spark a mass African exodus. Russian and Philippine leaders have also publicly criticised the court, slamming it as a tool of western interests, and while no one’s sure what a Trump presidency will bring, it’s unlikely to be good things.

It feels like a post-mortem. What went wrong, and who is to blame?

There are factors out of the ICC’s control, of course. It operates on a (relatively) shoestring budget, with just a handful of qualified lawyers and investigators expected to hold all the world’s bad guys to account. The virulence, and effectiveness, of Kenya’s campaign to discredit it – led by Kenyan President Uhuru Kenyatta, a former ICC-accused himself – has caused a lot of damage, particularly in Africa. The failure of major powers like China, Russia and the United States to sign up hasn’t helped its legitimacy. And it is sailing firmly against global headwinds, with the future of all international institutions increasingly under threat.

We’re talking about a threat that’s going on almost globally… This withdrawal phenomenon that we are seeing, in the withdrawals from the intra-American system, in Brexit in Europe, in the Rome Statute system. This is a very worrisome development internationally. Some of the strongest places where [the ICC has] been getting defence, we’re now getting attacked,” said Bill Pace, convenor of the Coalition for the ICC, a civil society umbrella organisation.

Nonetheless, it’s not all somebody else’s fault. There’s no doubt that the ICC has made mistakes along the way.

Under particular scrutiny are decisions made by former chief prosecutor Luis Moreno Ocampo. It was his idea to go after Uhuru Kenyatta and William Ruto, despite knowing that they were scions of Kenya’s political establishment and would mobilise the country against the ICC. It was his decision to throw the kitchen sink at Sudanese President Omar al-Bashir (although the case itself was referred by the United Nations Security Council). Did he push too hard, and too fast? Should he have waited until the ICC was more established before going after heads of state, who were always going to cause problems for the court?

I don’t want to be critical because the evidence was there to indict and proceed,” said Stephen Rapp, the former United States ambassador-at-large for war crimes issues, picking his words carefully. He is a prosecutor himself, having led the successful prosecution of former Liberian President Charles Taylor in the Special Court for Sierra Leone.

There’s a time where you can succeed at this level, and there’s a time when you can’t. Every prosecutor has to carefully time cases and build them accordingly, and it’s important to build credibility in other ways. Before you shoot the biggest lion, you have to prove you can shoot smaller game,” said Rapp.

Ocampo, on the other hand, went straight for the big beasts, with all guns blazing, and now the ICC is paying the price. Another criticism is that Ocampo compounded this error by not using his prosecutorial discretion to pursue any non-African cases; had he done so, the perception that the court is biased against Africans may not have been quite so pernicious.

The Afghan Gamble

They call Afghanistan the graveyard of empires, but it just might be the saving of the ICC. Earlier this month, Chief Prosecutor Fatou Bensouda announced that a decision is “imminent” on whether the court would open a full-scale investigation into war crimes in Afghanistan. Insiders say this announcement makes it a near certainty that the investigation will go ahead, with only questions about its scope and mandate left to answer.

Here, finally, is the headline-grabbing non-African case that the court so desperately needs (The ongoing Georgia investigation was never going to generate quite as much press). Here, too, is an effort to hold a global superpower to account, with Bensouda saying that she will look into alleged US war crimes. “Members of US armed forces appear to have subjected at least 61 detained persons to torture, cruel treatment, outrages upon personal dignity on the territory of Afghanistan between 1 May 2003 and 31 December 2014,” she said in a statement.

There is a vast gulf between threatening an investigation and actually seeing US soldiers or officials on trial, however. The US is not an ICC member state, and is unlikely to co-operate with investigators (Afghanistan is a member, which gives the court jurisdiction). Hostility to the court runs so deep in Washington that in 2002, legislators passed the so-called Hague Invasion Act, which authorises the American government to use force to free any citizen detained by the ICC.

The most serious barrier is legal. The ICC is explicitly a “court of last resort”, which means that it can only hear cases if they have not been investigated or prosecuted by anyone else. If the US can prove that it has already investigated the incidents in question, then it will be very difficult for the ICC to argue otherwise.

But while the details may be difficult, the optics are excellent – from the ICC’s perspective, at least. The most frequent criticisms levelled against the court are that it is biased against Africans, and too scared to take on the major powers. “What about Bush? What about Blair?” are constant challenges to the court’s legitimacy. By taking on the Afghanistan situation, the ICC is seeking to change this narrative.

It does so very deliberately. There are other cases in the preliminary examination phase that might be easier to prosecute (the 2008 stadium massacre in Guinea, for example). There are other cases that won’t set the ICC up for a bare-knuckle fight with a hostile superpower – a fight that the ICC is not guaranteed to win.

But the Office of the Prosecutor can only afford to take on one new case each year, and – assuming the Afghanistan investigation is confirmed – it has rejected the path of least resistance, knowing that it must be seen to be expanding its remit beyond black men in Africa.

This is a victory of sorts for the court’s fiercest African critics. While there is little doubt that the criticism – from the likes of Omar al-Bashir, Uhuru Kenyatta, Pierre Nkurunziza and Yahya Jammeh, a rogues’ gallery of serial human rights abusers – was motivated by self-interest, it did touch a nerve. In forcing the ICC to be a little more self-aware, in forcing it to fight against its structural constraints, the renegade African bloc may just have done the court a huge favour in the long run.

Despite reports to the contrary, the ICC is not dead. Even in Africa, the triple withdrawal of Burundi, the Gambia and South Africa has yet to be followed by a mass continental exodus. In fact, the opposite is true: with the stakes so high, the court’s African supporters – such as Nigeria, Senegal and Botswana – have become far more active in its defence. At the same time, the ICC is consciously trying to counter the accusations of bias and racism by expanding its case load, with Afghanistan expected to be a high-profile counter-argument to these negative perceptions.

Meanwhile, in The Hague, the day-to-day business of the court continues. Witness 26 is shown a copy of his brother’s death certificate, and asked to confirm its authenticity. “Oui. That is my brother,” he says, as president-turned-prisoner Gbagbo looks on. DM

Photo: A file picture dated 23 November 2015 shows the courtroom of the new home of the International Criminal Court (ICC) in The Hague, The Netherlands. EPA/MARTIJN BEEKMAN.

Simon Allison’s travel to The Hague was supported by the Netherlands Ministry of Foreign Affairs and the The Hague Municipality.

Read more:

  • View from The Hague: ‘The ICC bleeding has stopped’ on Daily Maverick
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