Is the ICC a Safe-Haven for Indicted War Lords?

POST WRITTEN BY: Caroline S. Irvin ’15

Former Congolese rebel leader, Bosco Ntaganda, surrendered himself at the U.S. embassy in Kigali, Rwanda last March after having been indicted by the International Criminal Court in 2006 for allegedly recruiting child soldiers. As the BBC has reported, the Chief Prosecutor at the ICC, Fatou Bensouda, must convince the court that Ntaganda should be tried for war crimes and crimes against humanity for his participation in the Union of Congolese Patriots rebel group. Thomas Lubanga, the only person in the Congo conflict convicted so far by the ICC, was the leader of this rebel group. However, many analysts are questioning Ntaganda’s motives in turning himself in. His current rebel group, the Congolese M23, was fracturing at the time and, in order to avoid being killed by one of the other rebels, he turned himself in to the U.S. embassy.

This begs the question: is the ICC protecting these war lords?

Art. 86 of the Rome Statute of the International Criminal Court titled “General Obligation to Cooperate” establishes that

States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.

As a State Party to the Rome Statute of the ICC, the Democratic Republic of the Congo had the responsibility to turn Ntaganda over to ICC officials once he was indicted. Clearly, the DRC failed to do this and Ntaganda eventually decided his safest option was to go to the ICC. The ICC is seen as the only international governing body meant to prosecute those individuals who have committed unspeakable atrocities on a large scale. That Ntaganda saw the ICC as his best chance at survival perpetuates the view that the ICC is not the imposing body it needs to be. The decisions made by the ICC do not seem to have any impact in deterring future criminals, and State parties fail to fulfill their responsibilities, adding to the court’s lack of legitimacy.

What is the point of the ICC if criminals choose to be prosecuted there?

Proponents of the ICC argue that the Court comports with one of the major purposes of the law: to avoid violence, vigilante justice, and the vicious cycle of score settling. These supporters view criminals turning themselves in as an attribute to the court’s effectiveness. I would argue that although a criminal turning himself in is better than searching for him, these criminals are not feeling remorseful for what they have done and subjecting themselves to the justice of the court. On the contrary, these criminals are escaping the situations in which they have found themselves following their fall from power. The ICC does not possess a strong enough deterrent factor to persuade criminals to feel remorseful for their actions.

A further argument suggests that the ICC is a young institution and lacks its own police force, making it extremely difficult to capture and prosecute the accused. As such, the ICC depends exclusively on the state parties to apprehend those it indicts and imprison those it convicts. All the international criminal tribunals have been driven—to a large extent—by politics rather than neutral, objective principles of justice.  It may be too much to expect the ICC to function as well as a long-standing municipal court trying a criminal defendant charged with heinous crimes.

Although I agree that the ICC is too new a court to be expected to function as well as a long-standing municipal court, it was established specifically to try defendants accused of war crimes and should be capable of doing so. Part of this function is creating a forceful body that imposes a fear of justice upon those who commit these atrocious crimes. If the ICC was to fulfill this obligation, perhaps its State Parties would be more willing to assist in the capture and surrender of the accused defendants. With more support from its member states, the ICC could increase its sovereignty and effectiveness as an international court.

If the ICC has become a refuge for war lords, what should the next step be? Would the world be better off without this time-consuming, expensive, and seemingly ineffective court? Shouldn’t the ICC be seen as a powerful, intimidating structure meant to deter future war crimes and crimes against humanity?

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