Thursday, 01 November 2012 14:14

Challenges Facing the International Criminal Court

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The international Criminal Court (ICC) remains one of the highly regarded justice instruments in the world. Despite the amount of time it consumes to dispense justice it has recently effectively concluded two major cases: that of the former Liberian president Charles Taylor and Thomas Lubanga of the Democratic Republic of Congo.

Other ongoing cases are those of the four Kenyans; William Ruto, Uhuru Kenyatta, Joshua Sang and Francis Muthaura who are accused of being the leaders most responsible for the 2007/8 post election violence. The Court has also intervened in Sudan, Libya,Yugoslavia and Uganda among other countries. Even as the court intends to stamp its authority and will to make crimes against humanity in the world a thing of the past, it faces several challenges which may affect both its short and long term impact. To start with the ICC faces a big challenge in terms of victims’ participation; this is partially due to the huge cost implication in transporting the victims to the court at the Hague, and their sustenance. Perhaps, in future, the Court may decide to hold special sessions of the proceedings in the host country so as to accord more victims a chance to participate; this is in the spirit of making it more victim-centred that the current scenario.

Debates surrounding the questionsof Justice vis-a-vis Reconciliation have been raised mostly in Africa, particularly Sudan, Kenya, Uganda and Libya; although most of the proponents for restricting the intervention by the ICC are self seeking politicians whose aim has been to protect one of their own. Hard questions continue to be raised on how the court can strike a balance between Justice and Reconciliation - for example in Northern Uganda most victims will confess that what they desire most is peace in order for them to secure their livelihoods. They see the push for the ICC as a threat to their own economic existence as individuals and communities. The other major challenge for the ICC remains its witness protection programme, evacuation of victims from their countries to a safe house abroad is not only expensive but may also cause a lot of stress to the witnesses and their families. This could be a result of cultural shock and isolation from their familiar environment.

With most cases taking lengthy periods it is highly unlikely that the witnesses will retain their original story until the conclusion of the cases. Some may opt out with the passage of time as a result of the different and changing circumstances in their lives. Management of the expectations of the victims in the affected countries will be something that the ICC might want to invest in; this has been occasioned by the lack of adequate complementary mechanisms such as court interventions in the affected countries leaving victims with only one alternative: to put their faith in, and peg their expectations on, the ICC. The truth is that the Court can only deal with the few cases of those most responsible in perpetrating crimes against humanity, and other cases under its jurisdiction. This kind of scenario has not been adequately mitigated and might have a negative impact on the work of the ICC resulting in massive dissatisfaction from the victims’ side.

The court has not been very effective in managing victims’ expectations; in most cases it has relied on the mainstream media to issue a few statements whereby the reach is minimal as victims in more remote areas have no access to television and newspapers. The Court might need to do more than it is doing at the moment and establish more collaborative partnerships and information sharing in pursuit of its objectives. There is need for the ICC to sustain the victims’ confidence both in the short and long term.

The recent cutting of the budgetary allocations by the ICC for its operations may pose a big challenge to an already less plausible court among the victims in the host countries; with the most affected sections being the victims and their lawyers. Sureta Chana, one of the Kenyan victims’ lawyers complained last year of her inability to meet and effectively interact with her clients. The budgetary constraint had serious Implications for the held officers who were undertaking various chores for the ICC; yet these were the very persons who were in regular contact with the victims regarding both the case and the situation. It was quite unwise of the Court to make that drastic decision to cut its operation costs just when the demand for its services was rising in the world, and when global dictators were losing their grip on impunity and increasingly being forced to face justice for their crimes against humanity and genocide among others. The last one year has been memorable with the fall of Muammar Gaddafi in Libya, Hosni Mubarak in Egypt, Ben Ali in Tunisia and president Sale of Yemen.

The ICC faces more challenges mostly in Africa as more hurdles have been placed against it at national, regional and continental level. Some national governments, among them Kenya and

Libya, have shown little or no support for the court with Kenya investing heavily to persuade its neighbours and other African countries to back it’s admissibility challenge last year; which it lost. The country could barely demonstrate its willingness, or any practical steps which it had taken, to put in place mechanisms to try the perpetrators of the 2007/8 post election violence. Having lost its bid at the Hague, Kenya has since successfully persuaded its neighbours to amend the East Africa Court of Justice to enable it to handle matters related to crimes against humanity. This move, however, has little significance as the ICC had already instituted the four Kenyan cases and any withdrawal or transference is out of the question. Nevertheless, the African Union has also significantly distanced itself from supporting the Court using arguments that it is targeting the continent’s leadership.

Although this position by the union is more political than real, it is a significant pointer to how the Court will be received in the affected countries as well as the level of support and cooperation accruing both from individual countries and from the collective.

Byline: ‘African Governments claim that the ICC is biased towards Africa may not be entirely true but it is conveniently being used to put an obstacle to its work in the continent. Honestly we must acknowledge that Africa lags behind in the fight against impunity compared to many parts of the world and therefore ICC becomes a powerful tool on the fight against impunity in the continent,

Paul Mwaura Wanderi Deputy Director and Head of Programmes at the International Center for Policy and Conflict(ICPC).


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