Taking a look beyond ICC’s relevance

The International Criminal Court’s dangerously flawed processes of engagement in Kenya, vigorous anti-ICC campaigns within the African Union and the recent wave of defections from three African states (Gambia, South Africa, Burundi) have all brought to question the long-term survival and effectiveness of the court. And the court's woes do not end there; there's also Russia's symbolic withdrawal and threats by the Philippines, Kenya, Uganda and Namibia to leave it.

Focusing on individuals bearing the greatest burden for crimes, ICC was established as a court of last resort to ensure perpetrators of the gravest crimes against humanity are held responsible and that victims receive justice.

No doubt that in an increasingly authoritarian and combustible world, ICC’s noble cause of preventing large-scale human violations and deterring war crimes remain relevant.

The problem, however, is that for the same reasons that some of the major powers have refused to ratify the Rome Statute out of concern that it violates national sovereignty, are also the same reasons that weak states are growing hesitant in complying with the court, especially repressive regimes scared that the court will come after them.

A key problem apart from being seen as a tool of western imperialism is that the ICC model of justice depends entirely on co-operation of states in apprehending suspects.

Where there is no such co-operation or commitment, the court lacks mechanisms to enforce co-operation, let alone its rulings. In addition, the court’s lamentable missteps in handling the Kenyan cases eroded confidence on its competency and judgements in collecting evidence and protecting witnesses.

Furthermore, its inability to manage its own branding and messaging has yielded power to influential political actors in weak states to spread propaganda and misinformation about the court.

Even though it is a young court, with its dented credibility and as it works to navigate the complex international and domestic political terrain of its mandate, what other mechanisms are available for pursuit of justice for victims of crimes against humanity? While there are no simple answers, focusing on improving national criminal systems of justice and promoting indigenous local mechanisms of justice in peace building contexts offers more promise than the ICC.

The relationship between the court and individual states will remain contentious especially over the issue of state sovereignty and this will continue to limit the court’s ability to be effective when high raking state officials are indicted.

The court also confronts criticism of its cultural relevance on whether it is the proper avenue for promoting justice in local contexts where mass crimes involve and are endorsed by entire communities and not just individuals.

In such instances, local traditional mechanisms of peace and reconciliation, for example, ‘Gacaca’ which was controversially used in Rwanda, or effective Truth, Justice, and Reconciliation mechanisms, are best suited than the ICC to heal these divisions rather than individual punishment. It worth repeating that ICC, from the beginning, was meant to be a court of last resort that is complementary to national jurisdictions, hence moving forward it should pay more attention on how best it can support the development of stronger national/local systems and negotiate with states on how to do so.

It will be crucial for the court to also control its branding and messaging such that in instances where national and local systems are continuously being undermined, the court can rally and build a strong coalition of states that would commit to and implement the doctrine of Universal Jurisdiction.

This would serve as a check and balance to the national system whereby key individuals who have committed mass atrocities will essentially be serving as free prisoners in their own country but risk arrest when they travel to other countries.