After Sudanese President Omar al-Bashir’s escape from South Africa this morning, where a court was threatening to act on an indictment by the International Criminal Court for alleged crimes against humanity, the legal body tasked with bringing the world’s worst human rights abusers to justice has never looked weaker.
The accused orchestrator of genocide’s ongoing world travels throughout Africa, Asia, and the Middle East have been a blatant challenge to the court’s authority. The U.S. State Department had earlier expressed its concern over Bashir’s visit to South Africa for an African Union summit, saying that “while the United States is not a party to the Rome Statute, which sets out the crimes falling within the jurisdiction of the ICC, we strongly support international efforts to hold accountable those responsible for genocide, crimes against humanity and war crimes.” But the court’s inability to hold perpetrators of those crimes responsible is in large part by U.S. design.
In 1998, when delegates gathered in Rome to negotiate the terms of the treaty that established the court, some countries favored a powerful body with universal jurisdiction to prosecute crimes against humanity across the globe. The U.S. was strongly opposed to such a court, going as far as to threaten to remove its troops from Europe if it were created. The U.S. was concerned that American troops involved in “peacekeeping operations” (this was the ‘90s) who unwittingly killed civilians could find themselves charged with crimes against humanity. In opposition to allies including Germany, Britain, and Canada, the U.S. opposed giving the court jurisdiction over countries that had not ratified the treaty establishing it. “The loopholes it is creating to protect American citizens are the same ones that would allow rogue countries to shield themselves,” warned one human rights activist at the time.
When the court was eventually created, without support from the U.S., China, India, Israel, and several other countries, the New York Times editorial board was skeptical right off the bat, writing that “it is doubtful that Saddam Hussein lost any sleep” and “Washington did its best to sabotage the court, and largely succeeded.” (President Clinton did eventually sign the weakened treaty in 2000, but it was never ratified by Congress and George W. Bush suspended the signature in 2002.)
The consequences of the weakness built into the court from its outset are visible in its performance since then. The court can launch investigations only if the crimes in question are committed in a country that are party to the Rome Statute or if a situation in a non-party state is referred to them by the U.N. Security Council. This is why the court has been unable to act in response to the ongoing carnage in Syria. Syria is not a party to the Rome Statute and Bashar al-Assad’s ally, Russia, protects him on the Security Council.
A U.N. report in April concluded that ISIS is probably guilty of genocide among other crimes, but the Security Council can only refer situations not individual actors for a court investigation, meaning that the U.S. can’t push for an investigation into ISIS without exposing allies—including the Syrian rebels, the Iraqi military, and the Shiite militias—to risk of prosecution as well. (There’s good reason to be concerned about this.)
The court’s inability to act in Syria is likely doubly frustrating because the ICC is desperate to prove it can act against anyone other than central African warlords. Of the 36 indicted individuals in the nine situations brought before the court, all have been on the continent of Africa and the majority have been rebel leaders rather than government officials. (War criminals in the former Yugoslavia and Khmer Rouge-era Cambodia were tried in specially set up, non-ICC international tribunals.) Only seven suspects are actually in custody, and there have been only two ICC convictions so far, Thomas Lubanga in 2012 and Germain Katanga last year, both Congolese warlords.
Despite the appointment of Gambian attorney Fatou Bensouda as the court’s chief prosecutor in 2012, the ICC’s disproportionate focus on Africa has led to attacks on the court as a neocolonial institution. While the impression is understandable, some African governments have also cynically exploited it to protect fellow leaders from prosecution. Before letting Bashir slip out this morning, South Africa’s ruling African National Congress accused the court of being biased against Africans and called it "no longer useful." Kenya’s president, Uhuru Kenyatta, who was charged with crimes against humanity by the court over ethnic violence committed in the aftermath of the country’s 2007 election, successfully used his indictment as a campaign issue when running in 2013, and won. The ICC was eventually forced to drop charges against him last December after several key witnesses refused to testify.
Another attempt to prosecute a sitting head of state, Muammar al-Qaddafi, who was indicted in 2011 after the Security Council referred the situation in Libya, was frustrated after the dictator was killed by rebels that October. The court has been unsuccessful in getting Libya to hand over Qaddafi’s son Saif, who is being held by a militia in the city of Zintan and is due to face trial by the Libyan government—such as it is in the increasingly anarchic country—later this month.
The court’s next moment of truth will be over its ongoing investigation into allegations of war crimes committed during the war in Gaza last summer. Israel is not a party to the Rome Statute, but Palestine joined in April over the objections of the U.S. and other countries that do not recognize it as a sovereign state. This means crimes committed on Palestinian territory are fair game for ICC prosecutors, though that’s a risky strategy for the Palestinian Authority as it could find itself under investigation as well. Israel has been pushing back ahead of a highly anticipated report from the U.N. Human Rights Council due later this month that is likely to condemn actions by both the Israeli military and Hamas during the war, potentially providing fodder for the ICC’s Bensouda, who has been publicly sparring with the Israeli government over it’s non-participation in her investigation.
The U.S. and Israel will do all they can to challenge and hold up indictments, and the Israeli government will almost certainly not participate if indictments are eventually handed down. The odds of Benjamin Netanyahu taking the stand at the Hague are probably roughly equal to him winning a Nobel Peace Prize at this point. Israel may not be all that popular in Europe right now, but if Bensouda indicts Israeli officials, key ICC backers like Germany and Britain could very well distance themselves from the court, further weakening it in the process.
The individuals prosecuted by the court so far, some of whom have perpetrated unspeakable crimes in conflicts that are often overlooked by the international community, are undoubtedly worthy of prosecution. But it’s striking that an institution set up for the purpose of protecting the powerless from the powerful, including their own governments, has only been successful in prosecuting nonstate actors in the world’s weakest states. Those in power can pretty safely ignore it, just like Sudan’s Bashir did today. While ironic, this shouldn’t really be surprising: It’s how the court was set up in the first place.