On the occasion of its 20th anniversary, the International Criminal Court (ICC) in The Hague, the Netherlands, is organizing a conference on Friday 1 July. The opportunity, she assures us, to carry out “reflections on how the ICC has met expectations”.
The balance sheet, at first glance, seems slim. In twenty years, only five people have been convicted, all from the African continent. No head of state among them, only rebels such as the militiaman Bosco Ntaganda. The leader of the Patriotic Forces for the Liberation of Congo was sentenced in 2021 to thirty years’ imprisonment for war crimes and crimes against humanity, the heaviest sentence ever handed down by the court.
The number of convicted persons thus seems very low compared to the 50 arrest warrants and summonses to appear issued since the creation of the ICC. Among those wanted or summoned, 42 are accused of genocide, crimes against humanity and war crimes.
The senior leaders prosecuted by international justice have never been convicted. This is the case of the former vice-president of Congo, Jean-Pierre Bemba, the former president of Côte d’Ivoire, Laurent Gbagbo, or the former Ivorian minister Charles Blé Goudé. All three were eventually acquitted. For their part, Kenyan President Uhuru Kenyatta and his Vice-President William Ruto both benefited from a dismissal.
On the Western side, cooperation with the ICC has proven to be complicated. Of the 123 member countries, only two permanent members of the UN Security Council have ratified the treaty (France and the United Kingdom). Despite the opening of several files against the great powers, no legal decision could be rendered.
Former prosecutor Fatou Bensouda, for example, obtained the agreement of the judges in 2020 to open an investigation into suspicions of torture committed by the United States in Afghanistan, or those perpetrated by the CIA in prisons located in Poland, in Lithuania or Romania. Closed some time later, this investigation had led Donald Trump to impose sanctions on the prosecutor.
The United States has never actually adhered to the Treaty of Rome. Washington certainly signed it in 2000, but never ratified it. Ditto for Syria or Yemen, where the ICC is therefore not competent to judge crimes committed on national soil.
Intervention as a last resort
Some states have consistently contested the Court’s investigations, arguing that they are capable of judging the charges before their own courts. The ICC only intervenes as a last resort, when an adhering State refuses or does not have the means to institute proceedings. A rule that was notably seized by Venezuela, during an open investigation into the crimes of the government of Nicolas Maduro.
The same pattern occurred on the British side over accusations of abuses committed by British soldiers in Iraq. Without the possibility of intervention, the ICC had finally left the responsibility for the investigation to England. The investigations resulted in numerous dismissals.
Fifteen open files
Other countries display their criticisms (notably China, Israel, Burma or Syria) or their hostility. Russia is even suspected of having sent a spy posing as a trainee, with the aim of influencing the investigation into Ukraine.
At present, the International Criminal Court has opened investigations in fifteen countries, on four different continents. Outside of Africa and Ukraine, the judges focus on the conflict between Russia and Georgia in 2008, respect for human rights in Venezuela, crimes committed by the Burmese army against Rohingyas, or those perpetrated by the Taliban and the Islamic State in Afghanistan. One of the most sensitive proceedings currently concerns crimes committed in the Palestinian territories and in Gaza.