A criminally incompetent court

### Joanne Harrower

**Our damaged world contains many histories that would be easier to ignore. It is convenient for an individual to bury one’s head in the sand and assume distance is a strong enough reason to forego judgement. What happened in Bogoro village in 2003 in the Democratic Republic of the Congo is so alien to most (unfortunately not all) that there is an automatic barrier to comprehension. **

It includes the ingredients of most African civil conflicts that challenge Western minds: numerous factions, blurring of civilian and soldier lines, rape, inestimable cruelty and violence. Mathieu Ngudjolo Chui is a French-speaking 42 year old ex-nurse. He is also accountable for atrocious actions in Bogoro.

The International Criminal Court is wholly responsible for opening the world’s eyes to individual actions at the heart of war crimes and genocide, restoring justice to the citizens of far-flung corners of the earth that would otherwise be overlooked. It has that responsibility and it is failing.

Ngudjolo’s acquittal by the ICC court on 18th December is firstly a supreme disappointment on behalf of the prosecution, led by Fatou Bensouda. Their expertise was relied on to present the case in a manner that could allow the court to see clearly what occurred at Bogoro. Instead, the witness testimony was described in a statement as ‘too contradictory and hazy’ and there was not sufficient evidence to reach a conviction ‘beyond reasonable doubt’.

The ICC was established to give judgment when national authorities refuse to or are not able to. The ironic turn is that after ten years of international support and funding, the case of Ngudjolo just illuminates yet another court not serving its purpose.

As well as the setback of Ngudjolo’s verdict, the spiralling costs of the ICC are another impediment to any positive appraisal. In March, the estimated expenditure since its creation in 2002 was already at $900 million with 766 permanent staff. Of course there should be no price stamp for the correct application of justice, but this is a lot of money for a court that has only doled out two verdicts in ten years. Funding has to be provided from the 121 states that ratified the _Rome Treaty_. It is puzzling as to how such monumental funds can be diverted into a bureaucratic maze.

The pace of prosecutions is positively glacial when compared to similar style international courts that were established to try individuals, such as the tribunals for Yugoslavia (ICTY) and Rwanda (ICTR). The ICC is supposed to compare favourably to the aforementioned because of its status as a permanent body, but is actually burdened by the failure of some states to ratify it as well as vagueness at the core of its charter.

The US, India, China and others have not signed the _Rome Treaty_ which reveals cracks in legitimacy and raises practical problems. How can warrants be issued without international recognition of the court’s power? One of the crimes the court aims to prosecute is ‘aggression’ of which there is no definitional consensus.

Another obstacle to international effectiveness is its vulnerability in the context of ongoing conflicts. In the only other verdict, Jean-Pierre Memba, former vice-president of DR Congo, was found guilty. While leadership of the country was being debated, the ICC verdict cleanly struck Memba out of the equation, revealing the kind of political clout it can wield.

A court of justice should not exhibit any political involvement or influence yet the ICC can be perceived as having both, and so far only in Africa. A disturbing dichotomy is created when a mainly Western-funded court in The Hague is solely determining the fates of Africans.

In an ideal world, the ICC would have efficiently gathered evidence and information of what took place in Bogoro in 2003. In a fair and universally-acclaimed court, with strong institutional foundations, Ngudjolo would have been found guilty. The gaps in understanding of the events in DR Congo would have narrowed slightly. Morality would have won out, even if just a drop in a sea of injustice.

Unfortunately the condition of the ICC did not allow for this, and it is these failings that must capture the attention of the international community.