Closing the "impunity gap" and the role of state support of the ICC

The icc faces serious challenges in Africa. But there is no doubt that it is a much needed institution to help break the cycle of impunity in a number of states. That is why it must receive the support of the international community. But what is required is a holistic understanding of the root causes of the culture of impunity and the seemingly intractable ethnic, social, and political problems. The International Criminal Court was established in 2003 after the adoption of the Rome Statute of the International Criminal Court in 1998. The Rome Statute has been ratified by 114 states. The role of the icc is to assist states to foster a culture for the respect of the rule of law. The hope is that national executive and judicial arms of the state will obey and apply the law equally, especially against powerful figures. But the icc cannot-nor is it intended-to end impunity by itself. It is meant to complement domestic legal systems by helping them incubate accountability. This is a novel experiment. The Court has not concluded a single case since it was established. It is currently hearing its first cases, all from four African states-Uganda, the Central African Republic (car), the Democratic Republic of the Congo (drc), and Sudan. On December 15, 2010, the icc Prosecutor, Luis Moreno-Ocampo, presented two cases against six prominent Kenyans before the icc for crimes against humanity. The icc applies the principle of universality to exercise jurisdiction over the most egregious offenders. But the slow pace at which the Court works has been a huge disappointment to victims who initially greeted the Court with a lot enthusiasm. Perhaps more importantly, the Court has faced obstruction and subterfuge in a number of target states. Only a legitimate judicial process can be viable and effective. Which begs the question: how legitimate is the icc in Africa? Does the Court have legitimacy with the core domestic protagonists-senior officials, suspects, police and security organs, victims, and civil society-to accomplish its goals? Is the impact of the work of the icc effective in building, and keeping, the peace? Is the icc an inducement for rival factions to come to the table, or is it an accelerant of conflicts? This paper argues that the work of the icc in Africa raises challenging questions. It explores the political implications of its work, and examines the impact, if any, that it could have on conflict resolution, peace building, the rule of law, and the quest to close the impunity gap. It asks whether the Court's pursuit of retributive and punitive justice is an obstacle to peace making and reconciliation efforts. Can the icc complicate deadly situations, such as Sudan where it was feared that President Omar al-Bashir, whom it has indicted, could escalate atrocities? Has the icc politically lost its moral standing because of selectivity, the targeting of poor African states? Why has the icc not gone after troubled states outside Africa? The icc faces serious challenges in Africa. The article concludes that the icc faces daunting challenges, but that it is a much needed institution that could help break the cycle of impunity. That is why it must receive the support of the international community.