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The International Criminal Court in the Hague has failed in its primary objective: pursuing criminals responsible for crimes such as genocide, war crimes and crimes against humanity that are not indicted by their respective nation states. Apart from a bunch of African warlords, African opposition members and African officials – indeed, all those currently indicted by the Court come from the African continent – no one else is currently being investigated by this controversial addition to the global judicial system that began operating in 2002.

If not the Bush US Administration, who else?

The UN's Special Rapporteur on Counter terrorism and human rights, Ben Emmerson, claims in a recent statement that the information contained in the US Senate Select Committee on Intelligence Report indicate that “there was a clear policy orchestrated at a high level within the Bush administration, which allowed to commit systematic crimes and gross violations of international human rights law”. Furthermore, Emmerson states that it is time to take action since “international law prohibits the granting of immunities to public officials who have engaged in acts of torture”, the US should hence bring those accountable to justice.

We all know this is never going to happen in the United States. President George W. Bush and his deputy, Dick Cheney, have both affirmed that they knew what was happening to foreign citizens in the CIA's black sites, during the Extraordinary Renditions programme and in the US government's outsourcing of “enhanced interrogations” to “friendly countries” with a despicable human rights records. In fact, they both licensed this policy in the name of “homeland security” and continue to stand by it.

Who should go after them then? The ICC, of course, since the Bush Administration waged two wars, invaded two sovereign countries, deposed their governments and perpetrated torture against alleged terrorists in the name of the fight against terrorism. One could object that the United States are not a signatory of the Rome Treaty – President Bill Clinton signed it, but Congress never ratified it – but then again neither is Sudan, whose President Omar al Bashir is wanted by the ICC for crimes against humanity. And no wonder President Bush was one of the Court's staunchest opponents.

bush cheney
George Bush and Dick Cheney

Weak with the strong

Just recently the ICC has suffered another major setback when the Court's Prosecutor, Fatou Bensouda from The Gambia, was forced to drop her charges against current Kenyan President Uhuru Kenyatta. The tribunal's highest profile case ended in failure due to the lack of evidence needed to bring the indictment before the judges. Prosecutor Bensouda blamed Kenya for blocking her attempts to find out the truth, failing to hand over vital evidence and for its attempts to intimidate and interfere with the witnesses.

The truth of the matter is that this case should have never started. The accusations against Kenyatta referred to the 2007 post-electoral unrest that killed over one thousand Kenyans and displaced around 600 thousand of them. The son of Kenya's first president, Jomo, was not even a contestant in those elections, but had backed the winning horse, Mwai Kibaki, against Raila Odinga. And it was the losers of the contest that started the mayhem. In addition to this, Kenyatta used his indictment by the ICC in his successful bid for the presidency in 2013.

In fact, Uhuru Kenyatta was the first sitting head of state to appear before the ICC and, despite the difficulties this may have caused, it is hard to deny that the investigations carried out by the Prosecution were insufficient, to say the least. Furthermore, countries are encouraged to cooperate with the Court, but the latter lacks any power to compel them if they fail to do so. With all due respect, are we sure that a Prosecutor from The Gambia has sufficient leverage to deal with high profile cases involving officials currently in office, or officials tout-court?

Uhuru Kenyatta

A political bias?

All of the ICC's open cases are in Africa: Ivory Coast's former President Laurent Gbagbo, former DRC Vice President Laurent Bemba, Congolese militia leaders Germain Katanga and Mathieu Ngudjolo Chui, Uganda's Lord Resistance Army's founder Joseph Kony, the already mentioned Sudanese President Omar al Bashir; all have been charged, some are wanted and others are currently being tried by the Court. And they are all African. Thomas Lubanga, a Congolese militia leader, was the first person to be convicted by the Court in March 2012. And guess where he comes from?

The world is filled with armed conflicts, rebel militias and extremist terrorist groups ranging from Latin America to Far East Asia. But, for instance, the ICC has failed to bring charges against Islamic State leaders, Al Qaeda affiliated terrorists and even the Taliban. There would be plenty of evidence against them, but where does the ICC stand on the issue of terrorism? Isn't a bomb planted in a market of Kabul to kill as many civilians as possible a crime against humanity?

Governments are another issue. Since the ICC has no police powers, how effective can it ever become? The list of countries that do not recognize the authority of the ICC include, apart from the United States, China, India, Pakistan, Indonesia, Turkey, Egypt, Russia, Iran and Israel. The African Union, for one, has asked its members not to arrest al Bashir and none of them have done so yet.

If rulers are indicted but remain unpunished or if they deny their collaboration to the Court, impunity will prevail and those wanted will never be apprehended. But if the high profile cases are dropped, then what is left for the ICC to pursue? And shouldn't we start encouraging local, weaker justice systems to bring to court their own war criminals instead of having them tried abroad, away from the local public eye and by a continent-biased judicial system?

The ICC was an ill-conceived solution to the issue of crimes against humanity and has failed to bring justice to their victims, be they innocent civilians caught in a conflict or alleged terrorists. No one will ever be held accountable for their loss or for the abuses they suffered.