Rebel fighters celebrate on the front line, after hearing news that the ICC had issued an arrest warrant for Libyan leader Gaddafi

Ever since 1983, when Argentina made the transition from a military dictatorship to a democracy, holding government officials accountable for atrocious crimes has been at the top of the international human rights agenda. After President Raúl Alfonsín came to power, Argentina established the first effective truth commission—the National Commission on the Disappearance of Persons—to document human rights violations that had occurred over the course of the fallen dictatorship. It was accompanied by prosecutions in domestic courts of high-level military officers who had ruled the country during the dictatorship. Five of them were found guilty of abuses.

Other Latin American countries, including Chile and El Salvador, set up truth commissions some years later, and they were followed by more than forty countries in different parts of the world. The Truth and Reconciliation Commission launched in South Africa in 1995 was the most notable example, because all of its proceedings took place in public hearings and because the law establishing it encouraged torturers and murderers to confess by allowing them to thereby obtain amnesty and avoid prosecution.

Those seeking accountability have a dual agenda: to determine the truth about crimes, their victims, and their perpetrators, and to obtain justice through the prosecution and punishment of those most responsible for them. In the early 1990s, the effort to fulfill these goals entered a new phase with the establishment of the first international criminal courts since the post–World War II tribunals at Nuremberg and Tokyo. The United Nations established the International Criminal Tribunal for the former Yugoslavia (1 and a few other governments (China, Iraq, Sudan, Qatar, Yemen, and Israel), and many more abstained when it came to a vote at the Rome conference, the momentum behind the cause of international accountability propelled the 2 Egypt, Pakistan, and North Korea.3 The statute does allow the United Nations Security Council to refer matters arising in any country to the court, but such referrals can be blocked if one of the five permanent members of the council exercises its veto power. This protects the United States, Russia, and China against such referrals, as they would surely veto cases prosecuting their own officials. It also makes it possible for permanent members to protect officials of other governments, such as those of Uzbekistan, Syria, Saudi Arabia, or North Korea.

The 4 are the only states where the 5 As yet, there is scant evidence that this has been a factor in the actions of national governments.

Despite its few successes, one of the 6 The leaders of two other African countries, Gambia and South Africa, also said they were withdrawing, but the Gambian leader was defeated for reelection, and South Africa President Jacob Zuma’s announcement of withdrawal was overturned in court because he did not follow constitutional procedures. On December 6, the Zuma government announced that it would ask Parliament to authorize withdrawal.

If other African countries withdraw, the ICC would lose jurisdiction over crimes committed on their territory. The chances of the UN Security Council referring such cases to it would probably decline. Another threat to the ICC is an effort within the African Union to launch an African Criminal Court with jurisdiction over the same crimes as the global body. Carter, Jalloh, and Ellis point out a number of problems with this proposal. An African Court is likely to have many fewer of the resources needed to conduct complex criminal investigations than a global body that gets support from a number of rich countries. Its main flaw, as they indicate, is “that the AU will not be willing to deal with Heads of State that commit crimes…[proving] the intention to exclude real accountability.”

If an African Criminal Court without the power to prosecute heads of state and other high-ranking officials is established by the African Union, it would also undermine the ICC. To prevent that happening, the ICC might successfully address African resentment by extending its reach to other parts of the world. The ICC prosecutor, Gambian lawyer Fatou Bensouda, has said that it is already conducting investigations in countries such as Georgia and Afghanistan and has asked for the authority to bring indictments for crimes in Afghanistan, including against American officials.

But this may not mean much to resentful African governments until actual indictments are brought for crimes committed in other parts of the world. As it happens, on February 8, Bensouda announced that she is launching preliminary examinations regarding the Philippines and Venezuela. Both countries are parties to the Rome Statute, so Bensouda does not need Security Council referrals to proceed. In the Philippines, her focus will be on the estimated 12,000 extrajudicial killings of suspected drug users under the direction of President Duterte since he took office in July 2016. In Venezuela, it will be on the violent suppression of peaceful protests under the direction of President Nicolás Maduro.

Preliminary examinations can take a long time. But if the prosecutor can proceed expeditiously and bring indictments for crimes against humanity in these cases, the impact on the ICC itself would be immense. African leaders would no longer be the only ones to be held accountable for great crimes.

February 14, 2018

  1. 1

    The Clinton administration opposed adoption of the treaty for the ↩

  2. 2

    The Palestinian Authority has ratified the treaty for the ↩

  3. 3

    Because the countries that have not ratified the treaty for the ↩

  4. 4

    Côte d’Ivoire requested the Court’s engagement before it ratified the Rome treaty, giving the prosecutor the basis on which it launched prosecutions.  ↩

  5. 5

    Statement on June 16, 2003, on his election as prosecutor.  ↩

  6. 6

    Withdrawal may not prevent a prosecution, as it takes a year to go into effect. Also, if the ↩

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