Twelve years after the Rome Statute paved the way to creating the ICC, the first permanent war-crimes tribunal, the court has still not secured its first conviction.
But does that mean it is failing?
Five countries are now facing investigations – Kenya, Uganda, Central African Republic, the Democratic Republic of Congo, and Sudan.
All of them are African states, and all states where the phrase “why pay a lawyer when you can buy a judge?” rings true.
The ICC can only be as strong as its membersThere may be legitimate arguments that this looks like selective justice and the ICC would do well to cast its geographical net wider.
But the official response to this criticism is that the court “targets impunity and not individual states”.
It is an argument that may be hard to swallow for some.
As delegates gathered in the Ugandan capital, Kampala, at a major conference to review the performance of the ICC, news emerged that Israeli soldiers had raided a flotilla of Gaza-bound aid ships and killed a number of activists.
UN Secretary-General Ban Ki-moon made it clear he wanted answers about the Israeli raid.
But Israel is not a signatory to the Rome Statute – meaning it is not subject to ICC jurisdiction. The ICC is only as strong as the sum of parts.
Which is why Kofi Annan, who has acted as a negotiator in some of Africa’s most bitter disputes, struck a chord during an open forum when he said: “In the end we are all going to need the ICC.”
Though the court may not have yet secured the arrest of President Omar al-Bashir of Sudan – the first serving leader to be indicted for war crimes – the ICC argues it has reduced his travel opportunities.
But the existence of an arrest warrant, obliging 111 states to detain him should he enter their territory, is an example of what could be called justice by stealth.
It is an attempt to change the culture in which impunity exists and, in the longer term, bring the alleged perpetrators to justice.
Angry childThis deterrent effect of the ICC, it is argued by its supporters, is as important as the court itself.
ICC members have criticised Israel, which is not a memberIt is impossible to measure how much the threat of an ICC indictment changes the behaviour of governments, rebel movements and individuals, the court’s supporters insist that anecdotal evidence suggests a shift in attitude.
Kenya – the most recent country to be investigated – has been forced kicking and screaming like an angry child to begin the process of setting up a home-grown tribunal to investigate post-election violence that racked the country for weeks after the 2007 vote.
It is not known how the local courts will operate, but the hope is that they will work in tandem with the ICC. Mr Moreno Ocampo says he wants the kingpins in the post-election violence to be brought to book before Kenya goes to the polls again in 2012.
What the ICC’s existence has done, without doubt, is to slowly send signals to ordinary citizens who so often feel their voice goes unheard that no-one is above the law in the end.
Sense of hopeEven on the minibus taxis in Kenya, where the names of football heroes and popstars are adorned, the name of Luis Moreno Ocampo can now be seen.
There is a sense of hope here, however remote.
But the ICC’s capacity is limited by the failure to get all five of the permanent members of the UN Security Council to sign up. The US and China remain outside the court’s jurisdiction.
The US has energetically backed the indictment of Mr Bashir from the sidelines.
But until it commits itself to the court, its absence from the top table will always be used as a stick to beat the ICC.
Behind closed doors, the Obama administration is in talks which could pave the way to the country becoming a signatory.
But as one diplomat put it, the “comfort threshold” for the US is going to have to be pretty high to convince it to join the club.
Politically chargedWhich is why human rights organisations are warning the ICC to tread carefully when it considers complex proposals in the coming days on how to define the crime of aggression.
So far, the court has brought little closure to victims of atrocitiesAlthough the crime of aggression is already part of the court’s brief, member states still have to come up with a definition.
Would the war in Iraq have met the definition? Or would Ethiopia’s operations in Somalia?
More importantly, the ICC must list a set of guidelines under which jurisdiction the crime of aggression falls.
Richard Dicker, from Human Rights Watch, has argued that the ICC is in danger of compromising its neutrality by essentially overreaching itself – straying into territory which is highly politically charged.
The events in the Gaza Strip may limit the amount of debate given to the prickly issue of crimes of aggression.
Some insiders at the ICC conference are even hinting that delegates may have got cold feet, and the much expected vote on the subject could be put on ice.
spotted by RS