By Erin Berry, MPIA 2014

The idea for the International Criminal Court sounds fantastic: an international body that prosecutes war criminals. The intent was to hold individuals accountable for their actions on the international level. The reality fell short of this lofty goal.

Several countries condemn the ICC for only indicting individuals from Africa. As a protest, they refuse to arrest individuals wanted by the Court. The ICC also lacks the support of the United States, limiting its legitimacy in the eyes of many countries. The International Criminal Court has its share of controversy, which complicates its work when indicting war criminals during armed conflicts.

When the ICC hands down an indictment, it encompasses a moral judgment on the part of the international community. This legitimizes the “other” side, the victims of the war crimes. The victims often view the moral judgment as an invitation for the international community to intervene, whether directly or indirectly. Thus the ICC indictments cannot be viewed as distinct from the armed conflict from which they derive.

The most significant example of an indictment inciting more violence is the case of Joesph Kony. The ICC indicted Kony in 2005 and yet the conflict in Uganda still simmers. Kony refused to sign a final peace agreement in 2006 and again in 2008. Furthermore, he neglected to attend peace negotiations, citing fears of arrest. At best, Kony actually fears the ICC and refuses to endanger himself, continuing to fight and inflict crimes of war on the Ugandan population. At worst, Kony utilizes a supposed fear of facing justice as an excuse to avoid negotiation, prolonging the conflict and enriching himself.

Of the thirty-two people indicted by the ICC, nine of them remain fugitives, including Joseph Kony and his cohorts. These numbers indicate that those facing trial fear both the ICC and taking responsibility for their crimes. Almost one-third of those indicted by the ICC refuse to appear before the court, both in cases where the conflict has ended and where it still continues. If those wanted by the ICC remain so scared of the court, there exists little incentive for them to turn themselves in and stop fighting. If the individual in question continues fighting, he profits from the war economy and lines his pockets while evading judgment day.

Why else would someone under indictment continue fighting? In addition to the spoils of war, the individual could win the war and gain control of the government. Sudan’s Omar al-Bashir represents the only sitting president ever indicted by the ICC. The indictment stirred an international outcry, with protests by the African Union, the League of Arab States, and the Non-Aligned Movement joined by Russia and China. Kenya, Dijibouti, and Chad refuse to arrest al-Bashir and let him travel freely through their countries, although al-Bashir did cancel a trip to the UN this past September under increasing threats of arrest. His position as head of state, maintained in the context of victory during conflict, sets a precedent that those indicted by the ICC could follow. If the individual in question continues fighting and manages to win, he gains a degree of international legitimacy that makes it difficult to pursue charges of war crimes in the face of international condemnation. Continued fighting thus offers the option of future protection from the ICC.

The International Criminal Court headquarter in Hague, Netherlands The International Criminal Court headquarter in Hague, Netherlands

What does this mean for the future? The recent use of chemical weapons in Syria brought calls for investigations into which party was responsible in order to take legal action. However, the conflict in Syria continues. Apart from the sheer difficulty of conducting an investigation in a war-torn country, the possible ICC indictment would provide a level of legitimacy to the opposing side. If it condemns Assad, it potentially unites the rebels and extremists, giving them a grievance with international support to advocate for more resources. On the other hand, if it condemns the rebels, it legitimizes the Assad regime in spite of the atrocities he committed attempting to crush the revolts. This recognition could provide the final blow to the scattered rebel forces, pushing Assad back into power. In light of these circumstances, the ICC needs to wait for the resolution of the Syrian conflict before pursuing charges of war crimes.