International criminal justice has seemingly always had to contend with some very critical perceptions in regards to its legitimacy. Questions have always been there, reflecting either real lack of legitimate moral and legal authority or politically-inspired dismissal of post-conflict prosecutions. There seems, however, to be a troubling recent escalation of negative opinion of international criminal justice, specifically the International Criminal Court (ICC).
The first ‘international’ judicial mechanisms were the Nuremberg and Tokyo Tribunals, established by the victors to address widespread atrocities committed during the Second World War. Meant as an endorsement and advancement of the rule of law, these tribunals were created as an alternative to the policy of summary execution for the major leaders of the wartime enemy that American, British and Russian policymakers supported and advocated for Nazi leaders. Although often considered international tribunals, these trials did not acquire legitimate authority through international sources or tenets of International Criminal Law. The legal basis for Nuremberg was established by the London Charter, which itself was developed under the authority of the Moscow Declaration of 1943. The Moscow Declaration was the result of the Moscow Conference, a meeting of the foreign ministers of three superpower states and war adversaries of Nazi Germany – Britain, the Soviet Union and the US. These trials, therefore, could arguably be regarded as little more than victors’ justice.
Since the Second World War, international criminal justice has evolved, becoming grounded in the legitimate authority of the UN Security Council or the membership-based Rome Statute of the ICC. In just over 10 years of existence, however, the ICC has not outgrown criticisms that might have once been attributed to the growing pains of an emerging institution. And, with growing negative press and the apparent lack of goodwill from the people for whom it operates, the ICC may be losing the perception game.
Concerns about the fact that all cases before the ICC are from the African continent remain forefront in discussions about the Court. Such geographical concentration has inspired serious discussion about a regional African criminal court to replace the ICC’s involvement in the continent. The goodwill that Africa had for the Court is dissipating and being replaced by hostility.
In their national elections, Kenyan citizens elected ICC-indictee Uhuru Kenyatta (with just over 50% of the votes) as Present. Kenyatta had been, and still is, indicted by the ICC for crimes against humanity in regards to violence committed after the 2007 elections. Kenya is asking the UN to halt the case against the President, claiming (as cited by the BBC) that the “prosecutions are ‘neither impartial nor independent’ and could destabilise’ the country.
At Kenyatta’s inauguration, Ugandan President Yoweri Museveni (who had invited the ICC’s involvement in his country in relation to war crimes and crimes against humanity committed by the rebel Lord’s Resistance Army), saluted “the Kenyan voters for the rejection of the blackmail by the International Criminal Court”.
In Libya, there has been an ongoing battle between the post-Gaddafi government and the ICC about where Gaddafi’s son Saif al-Islam and former spy chief Abdullah Senussi should stand trial. Both are currently being held in Libya. Debates rage about whether the men can get fair trials in Libya, and what are the parameters of the complementarity principle of the ICC that allows the ICC to pursue a case when the country is not able or willing to do so.
Elsewhere, the Court is not making tremendous positive headway, either.
In Indonesia recently, an official statement was made that the country would not ratify the Rome Statute. Arguably, the ICC is perceived in Indonesia as a potential impediment to political aspiration of two Generals who will likely run in the Indonesian Presidential elections in 2014.
Is the perception game two steps forward, four steps back for the ICC? It seems that the current climate offers more negative stories about the Court than positive ones. In the first 10 years of its existence, the Court convicted only one perpetrator, Thomas Lubanga. The case was heralded as a success, but there were also criticisms of the slow and expensive start to the Court.
It was reasonable to expect negativity surrounding the first years of the ICC, a court that can intervene in countries that either can’t or don’t want to deny impunity for atrocity crimes. It was, in fact, a shock when countries self-referred, an occurrence that was unexpected. However, the initial goodwill in Africa towards the Court has ostensibly turned sour, and the Court has not been able to compete with the negative perceptions by offering manifold successes. With time, hopefully, this era of negativity towards the Court will be a blip in the ascending path of the Court’s perceived legitimacy. Hopefully, the Court will regain traction in the game. Difficult as it may be, the Court should do more work to cultivate goodwill and understanding of the workings of the Court to counteract local narratives and politically-motivated opinions. The recent attempts at media outreach by the ICC and Coalition for the ICC may be helpful in this regard.