The InterDependent

At the African Union summit in January, a resolution was passed challenging the International Criminal Court on issues vital to its work and purpose. These included peace and justice, enforcement of its arrest warrants and which cases to prosecute -- all matters that were discussed in the court’s review conference in Uganda last June. In addition, the resolution complained about United Nations Security Council inaction on requests from the African Union about the court.

The resolution pits the African organization and the interests of some of its members against another international organization – the ICC -- which is charged with prosecuting individuals for atrocities and with redress for their victims. The action comes during a time of tremendous growth and self-examination for the court, whose next milestone is the verdict this May in the court’s first trial, that of Thomas Lubanga, a former warlord in the Democratic Republic of the Congo.

The court is also busy with other cases: three trials of four people are under way, with all of them likely to reach verdicts this year. Nine arrest warrants are still outstanding, and five investigations are continuing as well, including some in countries where a few cases have already gone to the court.

The chief prosecutor, Luis Moreno Ocampo, also studies situations of potential atrocity crimes within the court’s mandate, even where it may not have jurisdiction. Ocampo has 10 of these, with 6 in countries outside Africa. Most recently, calls have been made suggesting that the court investigate possible war crimes in Libya committed by Col. Muammar el-Qaddafi against civilians who are demanding his ouster.

UN Photo

Luis Moreno Ocampo, chief prosecutor to the International Criminal Court. His term ends in 18 months, as the court makes progress, examines its flaws and awaits the verdict of its first trial this May against a Congolese warlord.

The African Union resolution is specifically directed at the court’s arrest warrant against Sudanese President Omar al-Bashir, who has announced he will not run for re-election when his current term ends in four years, and at the prosecutor’s intention to obtain warrants against six senior officials in Kenya. The officials are allegedly responsible for organized mass violence that occurred after elections there in 2008. The resolution cites previous African Union decisions that prosecuting Bashir will interfere with negotiations and efforts for peace in Sudan.

The resolution also states that it “deeply regrets” the court’s referral of visits by Bashir to Chad and Kenya to its Assembly of States Parties, the court’s governing body, and to the UN Security Council. These visits, the referral said, violated those countries’ obligations as members of the court and asked for disciplinary action. The resolution claims that by receiving Bashir, Kenya and Chad were carrying out African Union decisions on fostering regional peace and stability.

But the court’s statue requires that the ICC defer action on a case if it is asked by the Security Council. The African Union approached the council to do this for Bashir and Kenya, but it contends that the council ignored these requests. The resolution therefore calls on African countries at the UN to pressure the council to act on those requests.

The review conference in Uganda last spring spent a lot of time considering the three issues later raised by the resolution and to evaluating the court’s performance so far. It concluded for the most part that peace and justice are inseparable – neither can be fulfilled without the other and that any choice between them is political and not for the court to make, as it must remain nonpolitical. The Security Council, as the senior international political body of the two, must make such a decision and use a resolution of deferral to have the court carry it out.

Court members also agreed in Uganda that their enforcement of ICC directives is a treaty obligation and that the court’s viability and credibility depend on it. Several countries made specific pledges to act on that obligation.

The African Union, like many other formal groups and leaders in Africa, has asserted that the ICC and its chief prosecutor are biased, since all current active cases are Africa-based. Although there was considerable feeling in Uganda that Moreno Ocampo should try to find cases from elsewhere, it was agreed that he “should go where the evidence takes him.”

It should also be noted that virtually all the African cases, except for Darfur, were referred to the court by African nations. Moreover, the recent unanimous Security Council resolution referring Libya to the court may show a change in position by African countries.

It is clear that the peace and justice issue will be a continuing theme in the court. Angry charges that its focus is complicating or endangering progress toward peace will bring more pressure as well. At the same time, it is evident that the Security Council will rarely request deferrals. Under the UN Charter, such a resolution would have to identify a given situation as a threat to international peace and security. Usually, as in the Kenya elections case, that will not be true. In addition, council members do not want to be perceived as rescuing anyone from atrocity charges by the court.

The ICC’s current work shows that its members’ efforts on enforcement will be mixed. France, Portugal and Belgium have carried out arrest warrants against people who have lived legally, sometimes for years, within their borders. Chad and Kenya have recently discouraged Bashir from visiting them again. European countries shun him -- despite his responsible role in the South Sudan secession so far. Yet there is no indication that he will be at the court soon, despite the nine other known arrest warrants against him that have been issued but not carried out.

Major tests lie ahead for the court. Six new judges and a new prosecutor must be elected in the next 18 months. New trials must move more quickly and efficiently. But the most important work will be to convince states, peace negotiators and international organizations that their interests and efforts must consider the reality that the court will investigate and prosecute atrocity criminals no matter who they are and where they live.