Is the International Criminal Court worth continuing?

By Gregory Simpkins

It probably escaped the notice of most people that the International Criminal Court (ICC) in October 2023 declined to prosecute Maxime Mokom, a former national coordinator of so-called anti-balaka militias in the Central African Republic. Mokom played a key role in a plan to violently target the Muslim civilian population in 2013 and 2014. The prosecution withdrew charges against him, saying there were no prospects for conviction.

“Having considered the totality of the evidence in the Mokom case and in light of changed circumstances regarding the availability of witnesses, there are no longer any reasonable prospects of conviction at trial even if the charges were confirmed,” the prosecutor’s office said, according to Reuters.

Mokom told the court he was a refugee stuck in the neighboring Democratic Republic of Congo for most of the period referenced in the charges, while the prosecutors said he coordinated the deployment of militias and oversaw attacks. What changed their minds about this case when they were so certain he was guilty?

ICC targets Africa

An increasingly popular criticism of the ICC is that it has unfairly targeted African states. The example mostly used to support this point was that 10 of the initial 11 cases before the ICC at were targeted at African states. There are now 51 cases that have been brought before the ICC – 46 are African and 5 are European. Certainly, Africa has more than its share of conflicts involving genocidal or terrorist activities, but what about similar atrocities elsewhere? Since the outbreak of the Russia-Ukraine war, there have been indictments such as Russian President Vladimir Putin, but accountability for Africans still appears quite high relatively speaking.

The ICC, established in 2002 four years after the Rome Statute authorized it, began operations the following year. The ICC may prosecute individuals charged with war crimes, crimes against humanity and genocide; it prosecutes such crimes particularly when states are unwilling or unable to do so. Alleged crimes are referred to the Court either by governments or the UN Security Council or by decision of the ICC prosecutor subject to approval of the ICC Pre-Trial Chamber.

However, there are significant dissenters to its authority, such as the United States, China, Russia, India, Indonesia and Israel. The concept of an international permanent human rights court is not a new one, and the issues that have limited its support are also longstanding.

“A commission set up at the Paris Peace Conference in 1919, in the aftermath of the first world war, recommended establishing a permanent international tribunal for war crimes. From the outset there was dissent. America favored temporary courts run by the countries that might suffer depredations in any future wars; along with Japan it also argued that heads of state should have immunity. The commission’s recommendations were shelved,” reported The Economist in a April 21, 2021 article.

The largest regional membership in the ICC is from Africa, yet the ICC’s current role in Africa is fiercely contested. African governments initially saw the ICC as part of the solution to the problems regarding international crimes, especially those too political sensitive for individual states to take up. Thus, they welcomed the ICC idea, joined it in large numbers and referred situations to its prosecutor for investigations.

“The 34 African states that ratified the Rome Statute in 1998 initially embraced the rule of law movement as an extension of their commitments to Africa’s emancipatory future. The violence that erupted in Africa in the 1980s and 1990s played an important role in compelling their moral conscience to act.,” stated a January 12, 2017 African Union (AU) strategy document that pointed out the hypocrisy of UN Security Council members expecting African states to adhere to the ICC accord without complying themselves.

Actually, governments such as Kenya early on realized that an international court could allow then to avoid sponsoring divisive human rights trials on their own soil. The violent upheaval after the 2007 Kenyan elections threatened to erupt into a civil war had a trial that inflamed inter-ethnic cleavages taken place. Ironically, both Uhuru Kenyatta and William Ruto had been indicted by the ICC for their part in the post-2007 election violence, but they could not be convicted. They are the last two presidents elected in Kenya.

However, the preponderance of African indictees by the ICC has created pushback from some African states claiming that the emerging system of international criminal law represented a new form of imperialism masquerading as international rule of law. Some African leaders accused the ICC of being biased against their continent, pointing to the fact that a majority of investigations are for situations in African countries. They complained that, in its first two decades, the ICC engaged in selective justice, infringing on sovereignty in post-colonial states. Countries such as Rwanda, Uganda, Malawi, Zimbabwe, Kenya, Gambia, and in fact most of the rest of AU member states except Botswana, expressed displeasure about the conduct of the court in relation to its alleged selective application of international criminal law.

Of the 51 cases brought before it, there have been 15 defendants were either acquitted or whose charges were dropped, 5 have trials still ongoing, 15 were not in custody, 7 had died and only 9 were convicted

Burundi is the only African country that has left the ICC, although others strongly considered it by 2017. The Gambia did withdraw under Yahya Jahmeh, but after Adama Barrow replaced him, his administration restored membership in 2017. South Africa’s government indicated its desire to withdraw that year as well, but a South African court ruled that the withdrawal violated the country’s constitution.

Burundi’s withdrawal became effective in October 2017. However, that same month, the ICC opened a formal investigation into alleged crimes against humanity in Burundi on the basis of a preliminary investigation launched in December 2015.

In March 2019, the Philippines moved to quit after the body launched a preliminary examination in 2018 into President Rodrigo Duterte’s controversial drug crackdown that resulted in the deaths of thousands and drew international censure. Under the Rome treaty, withdrawal is only effective one year after a country gives written notice of its decision to the UN secretary-general. A signatory country also “cannot be discharged” of any cases already pending in the court before the withdrawal. Consequently, the probe into possible crimes against humanity in Duterte’s drug war launched by ICC prosecutor Fatou Bensouda in February 2018 continued. On 18 July 2023, the ICC rejected an attempt by the Philippines to block an investigation into the thousands killed in the country during the former President Duterte’s war on drugs.

Difficulties in Prosecution

But bias isn’t the only complaint about the ICC process. Many have argued that the ICC is ineffective in its prosecutions. Of the 51 cases brought before it, there have been 15 defendants were either acquitted or whose charges were dropped, 5 have trials still ongoing, 15 were not in custody, 7 had died and only 9 were convicted.

Part of the problem of convicting those who masterminded violence is the same as prosecutors of Mafia crimes have run into: layers of people between the leaders and those who executed the crimes directly. In numerous prosecutions, lower-level offenders are given deals for more lenient sentences to get their testimonies against higher-ups. However, these lower-level genocidaires not only often had no direct contact with the leaders, but many of them acted on their own animus. Moreover, many witnesses were unable to identify anyone other than the person wielding the gun, the machete or the torch if even then. Some witnesses couldn’t be found, while others were intimidated into not testifying out of fear of harm to themselves or their families.

The victims of such heinous crimes, as well as the international community at large, demand justice for what are sometimes almost unimaginable crimes against humanity, but in often-chaotic situations, evidence is usually hard to come by, though not impossible. To be as effective as possible, evidence must be gathered quickly after crimes and be preserved. If witnesses are not cultivated and protected, they either will not talk initially or can be intimidated into not remembering pertinent facts.

The ICC costs hundreds of millions to operate annually, and if its conviction rate can’t be increased, governments and institutions will be increasingly reluctant to continue the process as currently constructed. The test will come when there are investigations and presumably indictments arising from the conflicts in conflicts such as Yemen, Syria, Sudan, Ukraine and Palestine Israel are unfolded. An international human rights tribunal is certainly necessary, but the proceedings in these cases will determine whether the ICC is sustainable in its current form.

Gregory Simpkins, a longtime specialist in African policy development, is the Principal of 21st Century Solutions. He consults with organizations on African policy issues generally, especially in relating to the U.S. Government. He further acts as a consultant to the African Merchants Association, where he advises the Association in its efforts to stimulate an increase in trade between several hundred African Diaspora small and medium enterprises and their African partners.