In the wake of accusations against several international criminal tribunals of being merely institutions for victor’s justice, the founders of the International Criminal Court (ICC) were cognizant of the need to create an independent judicial institution, free of politics. However, the Court is now also plagued by the stigma of victor’s justice, due in part to its case selection.
In May, the ICC ruled that Saif al-Islam Qaddafi should be tried in The Hague on the grounds that it finds the Libyan government unable to provide for a fair trial. Another ICC suspect, Abdullah al-Senussi, is also in custody in Libya waiting to stand trial for his alleged crimes. So far only these members of the regime have been indicted, while no one from the opposition has been called to face trial.
The Libya case is not the first time the ICC has indicted only one ‘party’ to a conflict. In 2003, the Ugandan government referred the situation in the northern part of the country to the Court, allowing the prosecutor to investigate crimes committed by both rebels and the government. However, the Court issued arrest warrants for five Lord’s Resistance Army commanders and none for the Uganda People’s Defence Force or government leaders, even with serious accusations that these parties had committed atrocities.
In Côte d’Ivoire, the prosecutor used his proprio motu power to investigate crimes perpetrated in the aftermath of the elections in 2010. President Alassane Ouattara expressed full cooperation with the Court and asked for assistance in prosecuting perpetrators of crimes that fell within its jurisdiction. At present the former president Laurent Gbagbo is the only indictee notwithstanding reports of Ouattara supporters committing ICC crimes.
Despite ICC attempts to demonstrate impartiality, such examples fuel criticism that the Court serves victor’s justice. What can the Court do to move away from this stigma?
The most obvious answer is for the Court to examine the crimes of all parties to the conflict. This is, however, easier said than done. The ICC’s budget does not allow any significant increase in its caseload. Moreover, impartiality does not imply bringing charges to all apparent perpetrators of all parties in a particular situation. It is therefore reasonable that the Court selects specific cases on the basis of criteria, such as gravity. However, the Court will only be seen as impartial and legitimate if these criteria are applied objectively and to all parties. It could also decide to bring charges against an equal number of persons on both sides to deflect any accusation of victor’s justice. However, this strategy disregards the fact that not all parties are equally culpable for crimes committed during conflict. Such a decision is therefore likely to be subjective and could even perpetuate the sense of politicization.
What’s more, the ICC lacks a police force and thus relies heavily on state cooperation to get access to witnesses, suspects, and evidence. This constraint may enable governments to frustrate the Court’s work by withholding cooperation. They can use the Court as a tool to defeat opponents by bringing them to justice while evading their own accountability. This does not necessarily mean that ‘victors’ will never face trial. Certainly, while a government is in power and able to obstruct any ICC investigation, it may be difficult for the Court to bring about justice in a fair and unbiased manner. However, an opportunity for a more balanced justice may arise after a regime change with perhaps a government more willing to cooperate.
Even though the drafters of the Rome Statute tried to create an independent judicial institution, politics are still very much present at the ICC. It is an issue that the Court cannot escape from in particular because of the Court’s need to cooperate with governments and the fact that it has jurisdiction over ongoing armed conflicts. Unfortunately there is no clear answer to what the Court can do to counter the stigma of victor’s justice. As long as governments can exploit its dependence, the odds are not in the Court’s favor. Nevertheless, criticisms could be limited to some extent ifthe Court is transparent and clearly clarifies its limitations and case selection strategies as well as decisions.
Ugandan opposition groups recently called for ICC investigations into President Museveni’s alleged crimes. In the Libya situation, the prosecutor still needs to decide about the focus of the second case. Perhaps these are two openings for the Court to vanquish critics by investigating ‘victor’s’ crimes.