The International Criminal Court (ICC) was established in 2002. The Court should usher in a new era in which the fight against war criminals should be a prominent part of the international legal order. Many hoped that both political and military leaders – presidents as guerrillas – would fear the ICC, and that they would think for a moment before they committed mass crimes in their quest for power. Now fading hope.
More recently the court has arm with the big boys in international politics and has lost. The Court has consistently been thwarted once it has indicted persons who are still in power. This has happened over and over again without really done anything about it. If the court can not fend for themselves, the project fail, the attitude apparently.
Lost the battle in Kenya
Nowhere has this unfortunate dynamic played out more clearly than in Kenya, where the court took a break with the incumbent president, Uhuru Kenyatta. It culminated in December when the prosecutor had to withdraw its charges back and Kenyatta grins could leave the court courtrooms as a free man. The background was not a proper legal process where evidence was found for light, and judges therefore acquitted Kenyatta. No, the results appeared rather because of Kenya’s longstanding subversive work against the prosecutor’s investigation.
Uhuru Kenyatta was charged in 2008 to stand behind a massive crackdown on political opponents. The result was hundreds dead and thousands fleeing. A criminal group called Mungiki had been put to attack areas where Kenyatta political opponents lived. People from the ‘wrong’ tribes, who traditionally supported Kenyatta political opponents were killed, women were gang-raped, men tvangskastreret and houses burned down. All together, according to the ICC’s preliminary assessment, orchestrated by Kenyatta.
But the case crumbled. During the investigation began key witnesses disappear; people close to the events died suspiciously; documents from the court told of attempted bribery and witnesses who were threatened to be silent; and key documents were detained by the Kenyan government. For example, Kenya insisted that they could not find out which companies Kenyatta owned or what his telephone had been a few years earlier. The obstruction meant that the prosecution could not prove its case. Kenya’s behavior does not seem to have political or diplomatic consequences. The international community seems to accept battle.
Genocide in Darfur
A few days after the prosecutor had to withdraw the case against Kenyatta back, was yet another case put on hold. It was about the alleged genocide in the Darfur region of Sudan, where among other things the sitting president, Omar al-Bashir, sitting accused. The case had not shown progress long, and it had to be dropped, said prosecutor – at least as long as the special UN Security Council did not contribute.
In 2005, the Security Council otherwise asked the ICC to investigate the conflict in Darfur. Back then, massive crimes already taken place. Many thousands had been killed, tortured and raped, and more than 1.5 million people were forced to flee.
Court prosecutor working on the case for almost 10 years, and when the prosecutor recently was to present its 20th report to the Security Council on the progress, she said the matter would be shelved. This happened because Sudan refused to cooperate and since the Security Council had not contributed to solving the problem. As she explained,had the Security Council repeatedly ignored the prosecutor’s cries for help.
Each respondent persons is therefore still freely in Sudan – including the president himself. No one has done anything to arrest the man, even when he has been traveling abroad, inter alia, China. The message was so clear: International prosecution may be dropped as long as the international community – the UN Security Council in the lead – not supportive.
The cases from Kenya and Darfur are the only cases where the sitting government leaders have been prosecuted. The rest of the court cases dealing with rebel groups who have been fighting the government, or already deposed government leaders who have been in opposition to the present regime. They accused the Kenyans and Darfur cases is therefore the only powerful individuals who have been prosecuted. This is exactly the kind of people it was hoped a court that ICC could affect. But now it is demonstrable that they are able to undermine the court’s work.
These experiences may unfortunately cause some potential war criminals tranquility. They win their matches militarily or politically, they may also win them legally.
This problem creates a dilemma for our politicians: Should we just accept this weakness by the court, or should we try to strengthen it? If we want to act, we probably need to think about the court into a wider political context and make use of political, economic and sometimes military force. Our politicians must in this context make up their minds how far they are willing to go.
Are they, for example, ready to punish countries like Kenya in the pocket? Should obstruction cost u–country funds or trading relationships? One thing at least is certain: If we let that nothing is war criminals who are victorious on the battlefield, untouchable, and the international legal order rays not significantly change the fact. It is our politicians in this case openly recognize and we all lower our expectations of the new world order.