Earlier this week, a Trial Chamber of the International Criminal Court acquitted Laurent Gbago, former President of Côte d’Ivoire, and his right-hand man, Charles Blé Goudé. (In what follows, I will refer only to Gbagbo). By a majority of two to one, the judges held that there was insufficient evidence to place Gbagbo on his defense. The Prosecutor has indicated that she will appeal this decision.
Critics of the ICC claim that this track record constitutes an indictment of the Court. They point, in comparison, to the United Nations International Criminal Tribunal for the former Yugoslavia (ICTY). During its active life from 1995 to 2017, it indicted 161 individuals of whom 99 were sentenced, 19 acquitted and 13 referred to domestic courts. The United Nations International Criminal Tribunal for Rwanda, during its period of activity indicted 96 individuals of whom 62 were sentenced, 14 acquitted and 10 referred to domestic courts.
I would suggest, however, that the comparison is not a fair one. In the case of the UN tribunals, each court was given a specific mandate that extended over a defined territory – the states that comprised the former Yugoslavia in the case of the first and Rwanda in the second. They were supported by resolutions of the Security Council that were legally binding on all members of the United Nations. They had the full and active support of the United States that brought its political and economic muscle to back that support. On the other side, the ICC has jurisdiction over war crimes perpetrated in 123 States or committed anywhere by a person who is a national of one of those 123 States. On this ground alone the differences become manifest.
That mistakes have been made by organs of the ICC cannot be doubted. However, it is always easy to criticise in hindsight. Some proceedings have taken too long. Some of the judges have been less than prompt in issuing their decisions. Criticism of, as well as praise for, the ICC has come both from civil society and from governments.
In June 2018, there was a massive outpouring of criticism at the decision of a majority of the ICC Appeals Chamber acquitting the former Vice-President of the Central African Republic, Jean-Pierre Bemba.