After the First Verdict: Why So Much Skepticism of the ICC?

Thomas Lubanga, a Congolese warlord, became the first person ever to be convicted by the International Criminal Court on March 14, 2012.

The International Criminal Court (ICC) issued its first verdict on Wednesday, convicting Thomas Lubanga, a Congolese warlord, of war crimes for recruiting child soldiers in the Democratic Republic of Congo. While some have hailed this verdict as a major victory for the court, skeptics continue to doubt the effectiveness of the ICC.

The ICC is an international governmental organization (IGO)–an organization whose members are states–that was created by the 1998 Rome Treaty and today has 120 members. Its purpose is to prosecute individuals accused of genocide, war crimes, and crimes against humanity.  But a major weakness of the ICC is that while it can issue indictments and arrest warrants it has no enforcement power to actually bring fugitives to justice.  Instead, it relies on states to deliver war criminals to the Hague (where the ICC is headquartered) for trial–a serious limitation since many states lack either the resources or the inclination to assist the ICC.  See this blog entry from last summer for a review of these weaknesses in the context of the Qaddafi indictment.  (In contrast, a success story emerged yesterday from Mauritania, where Moammar Qaddafi’s former intelligence chief–indicted by the ICC for crimes against humanity along with Qaddafi–was captured.  It remains unclear whether he will be tried in Libya, in France, or at the ICC).

Another concern is that the ICC is frequently unable to gather sufficient evidence to prosecute the most severe crimes.  This problem reared its head in the Lubanga trial, as highlighted by the Kenyan newspaper The Standard:

“One conspicuous aspect of the Lubanga trial is that he was solely charged with forcibly conscripting and using child soldiers in war. This is despite the fact that rebels under his command have been accused of massive human rights violations, including ethnic massacres, murder, torture, rape, and mutilation…[An expert suggests that the ICC prosecutor] may have opted to only prosecute the lesser crime because he probably did not have tangible evidence on other atrocities.”

Shadow Government, a blog written by conservative opponents of the Obama administration, recently blasted the ICC over its failure to apprehend Joseph Kony, the indicted war criminal who is the subject of the most viral video in history:

“…The Kony YouTube producers have put their full faith in the International Criminal Court. The chief prosecutor of the ICC is, predictably, reveling in the media attention. How pathetic. Has anyone missed the fact that the ICC indictment was issued seven years ago? The ICC has not been the solution, the ICC has been the excuse — since 2005 — for inaction. In the misguided thinking of the ICC’s supporters, no government or military needs to do anything about stopping Kony because once he is captured he will be put on trial. One problem: Who is going to catch him? Just like its predecessor, the International Criminal Tribunal for the former Yugoslavia, the ICC has proven to be an exercise in non-interventionist self indulgence. By focusing exclusively on the eventual prosecution, non interventionists (generally a collection of cowardly governments, conservative realists, and left-leaning peace activists) can wrap themselves in the moral satisfaction of appearing to take action while avoiding the unpleasant reality that someone has to step up and do something about it. As predicted by the ICC’s critics at the time of its founding, it is all law and no law enforcement. ”

What do you think?  Are the ICC’s myriad critics correct or do they exaggerate the deficiencies of this IGO?  These critics usually don’t discuss the alternative: if the ICC did not exist, would the world be better or worse off?

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