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How To Deter A Genocidal Maniac: Strengthening The International Criminal Court

Steve Helmeci |
October 11, 2014 | 3:00 p.m. PDT


In June, Laurent Gbagbo, the former President of the Ivory Coast, stood trial at the ICC after being detained for upwards of three years. (Paterne DIDI/Creative Commons)
In June, Laurent Gbagbo, the former President of the Ivory Coast, stood trial at the ICC after being detained for upwards of three years. (Paterne DIDI/Creative Commons)
We see horrendous acts of violence all over the world every day on the news, but most of it comes from the Middle East. The atrocities we prioritize are the ones we have a national stake in. But that's not the whole picture of global violence.

It’s not often, for instance, that the continent of Africa is brought to the forefront of the American news cycle - but when it is, it’s almost always ugly. Failed states falling into violent turmoil; terrifying militias kidnapping children and raping women; genocidal leaders and populations turning on fellow citizens of different tribal descent; widespread disease; poverty and displacement; these are the themes most prevalent throughout the continent. Since 1995 alone, atrocities in Rwanda, the Democratic Republic of Congo, Somalia, the Central African Republic, Sudan, Uganda and others have made headlines and shocked the world with their unimaginable brutality.

But, for all of the awareness campaigns across the Western world that have come - and gone (who remembers Kony 2012?) - the continent still seems to be having difficulty with widespread violence and human atrocities.

While some may say that individual nations have a moral right to aid in restoring order and civility, when these violent outbursts occur in fragile states, not all statesmen operate solely on morality. With that in mind, how can the world deal with the problem that is continued violence across fledgling states in Africa and future problems in fragile states in other parts of the world?

Perhaps the International Criminal Court (ICC) could step in to fill that void.

For those unfamiliar with the body, the ICC was formed in 1998 out of an international convention in Rome, and was formally introduced in 2002. The sole purpose of the court was and remains to investigate claims of genocide, war crimes or other such crimes against humanity when national entities are not capable of doing so or are not doing an adequate job. In the wake of the ad hoc tribunal courts the international community set up to deal with the atrocities in Rwanda and Yugoslavia in the early 1990s, the international community recognized the need for a more permanent body to deal with those crimes as heinous and difficult to punish domestically as genocide and crimes against humanity.

Interestingly, over the history of the court, one of the nations most unfriendly to its expansion has been the United States. Since the ICC’s conception, the United States has pushed for immunity deals with other countries, essentially stating outright that both countries will refuse to bring up any charges against the other country's citizens at the ICC. Since it is a court of last resort, only in use should all other national entities fail, and it cannot independently open cases without referral, these deals damage the scope of the ICC and its ability to perform its vital function in maintaining world order.

Additionally, the U.S. is part of the minority of states that has signed but not yet ratified the ICC’s charter.

The issue the United States cites as its reasoning for working against the ICC is the concern that the court could be used as a political tool, solely to defame certain nations. The African Union is also currently taking exception to the court on the grounds that it feels that the court is focusing solely on prosecuting African targets.

While it is true that the issues dealt with by the ICC are majority-African, under the charter of the court, the only real issues that it could try and have an impact on are happening in Africa. As little as the world likes it, America's involvement in the Middle East sheds light on the atrocities committed in Syria, Iraq, Israel and Palestine, among other places. 

Perhaps it is that very international involvement that has scared the United States into being hostile toward the formation of the ICC. Individual awareness campaigns and individual interventions on behalf of people caught in the crossfire of genocidal leaders are looked upon positively because they won't have dramatic repercussions for the United States diplomatically. However, any court system is a place where defendants and other plaintiffs can also point out covert U.S. actions and other tactics used that could be considered war crimes. Inhumane treatment of government detainees, indiscriminate bombing, even past actions like the use of Napalm in Vietnam or the atomic bomb in Japan, not to mention an untold number of possible operations in an untold number of countries that have not yet come to light would be possible grounds for charges against the United States under the war crimes statute of the ICC.

The map above shows the states who are party to the Rome Convention and their association with the ICC. States in green have signed and ratified the ICC charter, states in yellow have signed but not yet ratified, and states in red are not signatories to the ICC charter. (Wikimedia Commons/Public Domain)
The map above shows the states who are party to the Rome Convention and their association with the ICC. States in green have signed and ratified the ICC charter, states in yellow have signed but not yet ratified, and states in red are not signatories to the ICC charter. (Wikimedia Commons/Public Domain)
Any expansion of the ICC threatens U.S. operations worldwide, but perhaps that says more about what goes on during U.S. military operations than the possible danger of an expanded ICC. 

Regardless of why, the ICC is often criticized for its minimal influence. The perpetrators of crimes punishable by the ICC are only liable to be arrested should they leave their country, as the court cannot violate sovereignty. That being said, the ICC has gained some traction in recent years. Following an embarrassingly ineffective arrest warrant for President Omar Hassan Al-Bashir of Sudan in 2009, which even today remains unsuccessful, in 2014 the ICC successfully brought in the heads of state of both the Ivory Coast and Kenya for questioning.

In June, Laurent Gbagbo, the former President of the Ivory Coast, stood trial at the ICC after being detained for upwards of three years. Gbagbo lost the 2010 presidential election but civil conflict erupted after he refused to step down and upwards of 3,000 people died. Gbagbo is on trial for war crimes including murder, attempted murder and rape.

Perhaps more significantly, on Monday, the President of Kenya, Uhuru Kenyatta, became the first standing head of state to temporarily abdicate to his second-in-command and stand trial at the ICC. Kenyatta is facing charges that he was involved in the 2007 post-election unrest in Kenya. The specific charge is for crimes against humanity.

After previously stating that they do not have enough evidence to convict Kenyatta, the prosecution has shifted tactics and is accusing the Kenyan government of not fully cooperating with the investigation and hiding the involvement of top government officials in the civil unrest of 2007. 

The unrest that happened in Kenya in 2007 immediately followed the presidential election, which was viewed as tainted. Political tensions between the Loa and Kikuyu tribes (the two candidates were of opposing tribes) in the country boiled over, as cities across Kenya saw violent outbursts. In Nairobi, the capital, Loa gangs burn over 100 houses in a Kikuyu slum. In all, 1,200 people were killed and an additional 600,000 were displaced.

Kenyatta, a Kikuyu, is accused of orchestrating attacks aimed at retribution against the Loa tribe. The prosecution claims that phone records should exist that prove Kenyatta’s complicity in orchestrating the attacks, but that the government in Nairobi has withheld these crucial pieces of evidence.

Regardless of the decision at the end of the trial, the step to bring in a current head of state is a major one for the 12-year-old ICC. Demanding respect and complicity from states as an international organization is difficult, but the fact that Kenya’s sitting president has handed himself over is a step in the right direction as far as the credibility of the court is concerned.

In light of major milestones like these, the arguments against the ICC are perhaps more selfish than they let on. The United States, being (at times) an aggressive world power, may be more easily accused of war crimes. But so could warlords in countless other nations who are denying the human rights and freedoms we have sworn to uphold.

For the African Union's part, it must be willing to confront the image problem stemming from all of the indictments of leaders on the continent for crimes against humanity, and for the failures of several states within the Union to deal with internal strife in a civil manner.

While the AU does have a point in that the ICC could broaden its scope and deal with issues of war crimes and crimes against humanity in other fragile areas of the world, it does not change the fact that fragile states sometimes need a guiding hand and an example as to how to deal with persons who commit heinous crimes. And, sadly, a number of those fragile states are in Africa. 

More often than not, the continent is under-appreciated internationally. Awareness campaigns are nice, but they are not concrete solutions to life-or-death problems, some of which continue to rage today in the Central African Republic and in Nigeria to name a few. With its increasing scope and influence, the International Criminal Court could shine a light on areas that leading singular nations (the United States, for instance) would otherwise not prioritize. Any deterrent that the ICC could provide would potentially save a great number of lives in the future.

The role the U.S. could play here is simple. It doesn’t involve invading; it does not involve direct action at all. The sole necessary step to help fix war-torn, fragile states where heinous crimes are being committed every day, is to let the ICC work. Let it develop, let it grow in influence and let it be an intimidating factor to potential perpetrators of genocide or other crimes against humanity. 

This country needs to appreciate more the horrendous nature of violence in every part of the world - and it needs to recognize that it cannot and will not be able or willing to stop all of it. If the International Criminal Court is allowed to deter genocidal maniacs where lone nations cannot, then perhaps the world will become less of an anarchic place. While we don't know fully whether an expanded ICC will stop genocide in the future, if it saves a few lives from destruction and calamity then it was a wise investment.

Currently, leaders in lesser-known fragile states do not fear reprisal for atrocities, since they understand that the international community won’t react. But the ICC could change that, if it is allowed to flourish.

"Global Turning Points" is a new NT column on the critical international issues you might have overlooked. Check back Thursdays or read more here.

Reach Columnist Steve Helmeci here.



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