The Effectiveness of the International Criminal Court: Challenges and Pathways for Prosecuting Human Rights Violations

By Sarah J. Goodman
2020, Vol. 12 No. 09 | pg. 1/1

The International Criminal Court (ICC) was established in July 2002 after the adoption of the Rome Statute. The goal for the ICC was to establish a permanent, independent court to investigate and bring to justice individuals who commit the most heinous violations of and . Of the thousands of situations and potential cases that could have been investigated by the ICC and come to trial, only 44 people have been indicted, with 45 cases before the ICC. Further, only 14 out of the 45 have resulted in a complete proceeding, and only nine were convicted.

Scholars in the field have not adequately addressed why cases come before the ICC and how this process may result in a full hearing and verdict. Because of these gaps, empirically-informed recommendations for areas of improvement and overcoming challenges to the ICC are also largely absent. To begin to fill these gaps, this research uses a systematic analysis of dozens of ICC cases to answer a central question: Under what conditions is the ICC more likely to be successful in achieving confirmation of charges, where the Prosecutor’s efforts result in moving towards a trial?

The value of this research is multifold, and it is imperative to the field since the ICC sets precedents for international law, norms, and regimes. This research delves into the intrinsic mechanisms of the cases prosecuted to be able to explain the variations in the ways that cases are pursued and the outcomes. To answer the research question, I used a number of primary and secondary sources, such as the ICC Case Fact Sheets, to build a database of cases. I dissected each case brought from official ICC Situations and analyzed the different variables that are potentially contributing to the outcome. Through this, I was also able to identify different intervening variables. By creating a database, I was able to identify patterns that existed within the cases that may help explain under what conditions the ICC is able to achieve the Confirmation of Charges and move cases towards trial. I hypothesized the views of the involved state on the legitimacy of the ICC has the greatest influence on the outcome.

In doing my research and analysis, I confirmed this hypothesis. While some relationship between perceptions of legitimacy and the ability of the ICC to prosecute exists, whether this is a direct causal relationship remains unknown. Further research on additional cases may be able to prove a potential direct causal relationship. Furthermore, a causal relationship between state cooperation and the ability of the ICC to achieve the Confirmation of Charges Hearing also exists. Again, whether this is a direct causal relationship also remains unknown. Domestic politics was likely more of an intervening factor on whether the state would cooperate or refer the situation to the ICC rather than a direct causal mechanism. Moreover, another intervening variable came up: state capacity. If a state does not have the capacity to comply with ICC requests and capture and extradite accused persons, then it will not do so. This lack of capacity is often seen where there is a lack of security and secure borders. Those evading prosecution are likely using the instability and insecurity to “hide out” and avoid prosecution.

The International Criminal Court in Theory

There are some preliminary explanations for what conditions could explain the outcomes of the cases prosecuted by the ICC in the existing scholarship. Some scholars posit the institutional mechanisms of the ICC affect how it prosecutes crimes. Others conclude the views of states on the ICC’s legitimacy, or the interests of powerful states, have a role in the outcome of the case. However, I believe that it is more of a combination of different factors, including state biases, state cooperation, and domestic politics. Here, I discuss the competing explanations in the specific context of the ICC and how I utilize these theories in my research.

Some scholars believe the institutional mechanisms affect the ICC’s ability to prosecute. For example, the limited institutional powers of the ICC, such as the lack of an enforcement mechanism, affect its ability to prosecute crimes. It is difficult to prosecute when it is impossible to enforce arrest warrants and the states do not comply with the ICC. The inability of the ICC to pressure these states into compliance also shows its limited capacity. However, if the states willingly comply, it is easier for the ICC to investigate and achieve the Confirmation of Charges. This is supported by my data, as the institutional mechanisms would limit the ability of the ICC to achieve the Confirmation of Charges Hearing.

Clarke contends the ICC has a big reliance on states, which affects when and where the ICC can come in and prosecute1. In her analysis, the ICC only steps in when the national government is unwilling or unable to prosecute2. The big reliance on states is critical and may play a role in why the ICC is able to achieve the Confirmation of Charges in some cases and not others3. In my research, I found that this is true. If states are not cooperating with the ICC, as in Sudan refusing to comply with extraditing officials, the ICC is not able to achieve the Confirmation of Charges Hearing. Jordan Paust takes a similar position, arguing the ability of the institution to prosecute crimes is affected by its limited jurisdiction4. According to Paust, the Prosecutor has limited political capital and thus has to be careful in selecting which situations to investigate5. This would explain why the ICC has chosen to prosecute certain situations over others. However, it does not explain why certain cases achieve the Confirmation of Charges and others do not.

These scholars set a precedent for testing whether institutional mechanisms play a role in ICC investigations and prosecutions. However, I believe that these arguments are lacking. Since the lack of an enforcement mechanism and the limited jurisdiction are true for all states, that there must be another reason why some cases are able to achieve the Confirmation of Charges and others are not. This is why I explored state biases and state cooperation, and found these variables to be more indicative. I found in my research that pro-ICC biases and full state cooperation lead the ICC to be more effective in obtaining the Confirmation of Charges Hearing.

On the other hand, scholars contend that the effectiveness of the ICC is based around politics and domestic political calculations. Prorok and Ssekandi and Tesfay confirmed this in their own research, as domestic politics do play a role6. Prorok finds that when domestic punishment is unlikely, ICC involvement will affect leaders’ incentives to end their conflicts, significantly decreasing the probability of termination7. At first glance, this seems counterintuitive. However, when domestic punishment is probable, leaders will be preoccupied with this more severe threat, and ICC investigations will have little impact on their strategic decision making8. Ssekandi and Tesfay argue that while the ICC claims that most of the cases were self-referrals, many of the “self-referrals” were actually for the leaders to stay in power and remove political enemies9. Very rarely were they actual cases in need of justice10. Thus, these arguments may also be due to heads of state using domestic political calculations and wanting to escape accountability as well.

In my research, I saw that the ICC is highly dependent on these factors. For instance, I noticed that many authoritarian leaders were using the ICC’s prosecutions for their own political benefit, in having the ICC go after their political rivals and not those in power. For example, Uganda self-referred the situation to the ICC. Many in the international order lauded this as successful and great for Uganda to build legitimacy. However, I also found it was possible that President Museveni self-referred the situation to the ICC for his own political benefit. All Ugandan cases that have been prosecuted thus far are Lord’s Resistance Army (LRA) members, a rebel group opposing Museveni and the National Resistance Movement (NRM). By bringing the LRA and other rebel groups to the ICC, it would keep President Museveni and the NRM in power and reduce any political opposition. Thus, Uganda cooperating with the ICC would be politically beneficial for President Museveni and those in power. While the ICC can be useful as deterrent and keeping governments from committing atrocities, the ICC can also be used as tool to keep regimes in power and get rid of political enemies or rebel groups.

Another intervening variable that I found through my research was state capacity. Villa-Vincencio takes an alternative perspective in looking at state capacity, but one where there are still gaps. Villa-Vicencio contends states sometimes do not have the capacity to investigate and prosecute every case in an accountable manner, which means it is necessary to have the ICC as an additional mechanism for retributive justice11. While his research did lend itself to why the ICC is bringing certain cases, it was lacking in why certain cases in the ICC were able to achieve prosecutions and others not12. In fact, in my own research, I found that state capacity is more than just the domestic judicial mechanisms. State capacity also does include border security and . I found that if there were states that had weak borders, oftentimes it was possible that accused persons were using the instability to hide out and evade prosecution. I found that there is a intervening relationship between the state capacity and the ICC being successful in getting to the Confirmation of Charges Hearing.

Many other scholars believe that the limitations of ICC prosecutions are due to state biases. For instance, Janine Clark takes a look at the Court’s limitations in terms of effectiveness, as it is seen as biased and partial13. She does a more nuanced, exploratory analysis focused on both the Court’s limitations and possibilities as a tool of justice and peace14. Moreover, she argues that the ICC prosecutions will be ‘extremely selective’ for practical reasons, including the Court’s limited resources and weak enforcement powers15. The ICC cannot fulfill its mandate without assistance from states and therefore is powerless to enforce such cooperation16. Critical is thus its relationship with the states and how willing the states are to work with the ICC. That the ICC is strongly dependent on state cooperation may in turn affect which cases it decides to prosecute17. Her work is limited as it is more of an explanatory review and there is not much methodology utilized18. I built on this research to see how state biases and cooperation played a role in ICC prosecutions. I found that they were incredibly impactful on the ICC and its ability to secure the Confirmation of Charges Hearing.

Khan and Marwat, along with Mills and Human Rights Watch, explore state biases in their own research19, 20, 21. Khan and Marwat use case studies to demonstrate that one of the failures of the ICC is a potential African bias, and that the perceptions of African states on the ICC’s legitimacy affect the ICC’s proceedings22. They maintain this has led to the ICC being seen by many states as a tool of the government, such as in the Ugandan Situation, and do not perceive it as credible23. Mills has similar findings through the Bashir Case in Sudan. He argues that there is a perception by these African states that the ICC is biased24. Thus, states’ multiple, overlapping, and competing interests will inevitably lead to conflicts over interpretation and relative weighting of competing interests and norms25.

In addition, Human Rights Watch (HRW) found similar results in their research on the situation in Cote D’Ivoire26. HRW argues the ICC needs to help build domestic and regional capacity. As the ICC is complementary and likely to bring a limited number of cases, its efforts to help national prosecutions could be essential to increasing the effect of the court and its long-term legacy27. The court can contribute to capacity building efforts, including by sharing expertise on international criminal law, investigations, and witness protection28. HRW argues that the ICC’s impact is likely to be a function of the cases selected by the Prosecutor (and ultimately the perception of whether they are fairly tried)29. Perception issues created by the Prosecutor’s selection of cases will affect how information is received30.

In my own research, I found that this research on state biases and perceptions held true with the DRC, Mali, and Sudan. However, I did find that Uganda was actually more complex. Despite negative views of the ICC, Uganda has cooperated in some of the cases brought by the ICC. Specifically, they assisted in document production for the Ongwen case. Uganda’s assistance was critical to the success of the case and in achieving the Confirmation of Charges Hearing. Overall, in my research, I found a causal relationship between state biases and the ability of the ICC to attain the Confirmation of Charges Hearing.

However, other scholars have come up with a different theory regarding the ICC. These scholars believe that regardless of state biases towards the ICC, state cooperation with the ICC have the largest impact on the ICC’s ability to prosecute. Two scholars, Hillebrecht and Straus, have come up with a unique analysis into looking at the ICC and how it prosecutes, based on state cooperation with requests31. Hillebrecht and Straus argue that states’ cooperation with the ICC is contingent on the ability of incumbents to use cooperation for their domestic political gain32. In particular, when incumbents use the ICC to constrain and remove domestic opposition in such that they minimize risk of accountability themselves33. In my own research, I saw that cooperation had a large impact on the ability of the ICC to achieve the Confirmation of Charges Hearings. For instance, as Mali cooperated in all of its cases, the cases were able to achieve the Confirmation of Charges Hearing and move towards a trial. Moreover, while Uganda has not cooperated in all of its cases, the cases it has cooperated in were essential to achieving the Confirmation of Charges. For example, Uganda has cooperated in the Ongwen cases, and this cooperation was critical to the success of the case.

Mbata Mangu gives an overview of the ICC and how it has interacted with Africa in the context of power politics and cooperation34. While the author just gives a good overview of the ICC and the criticisms it has sustained, he does do a good job of highlighting how the ICC and the African states can improve their relationship35. Moreover, while he does not explicitly state why these states are having double standards with the ICC, he does contribute to the field. These ideas of power politics and internal pressures do impact how states interact with the ICC36. Regardless, I think he brought up some excellent points on state cooperation with the ICC and how that can be affected by power politics and state biases37. I explored these further in my own research. For instance, it was not politically savvy for Sudan to cooperate with the ICC, as it would entail removing a sitting dictator, and having him face up to 30 years in prison. Whereas, in Sudan, he likely would not be charged and tried for his crimes. For Sudan’s political climate, it was more judicious to not cooperate with the ICC.

Gegout discusses the problems of the ICC but also its inherent potential38. For many states, it is perceived that Court lacks credibility39. However, the ICC has a lot of potential and can be a legitimate force in the international order. She argues that the ICC depends on the support it receives from states and on the way it is perceived by the world40. In other words, it is influenced by state perceptions and biases, as well as state support and cooperation41. I think that these two areas have potentially the largest impact on the ICC. Gegout does a qualitative analysis of the ICC and its cases42. While her research is limited, it raised important points that were confirmed in my own research. The ICC is directly impacted by state biases and cooperation, as if states do not comply or have a negative view of the ICC, it is less likely that the ICC will be successful in achieving the Confirmation of Charges Hearing.

Overall, the existing literature on this subject helped inform my own research and hypotheses. Primarily, the literature helped inform the research question. I originally had a difficult time in figuring out which indicator would be my dependent variable. After looking at the research, I found that the Confirmation of Charges Hearing was an easy, natural stopping point. If state cooperation was nonexistent, then it was very likely that the accused person would never even be extradited to the ICC to face prosecution. Furthermore, if the document assistance from states was also lacking, then the charges could likely not be confirmed.

In addition, the literature helped me formulate my hypotheses. I found that state biases and state cooperation likely are two of the most impactful causal mechanisms for the ability of the ICC to prosecute, and thus became two of my primary hypotheses. Through the literature, I also noticed that domestic political calculations and state capacity may have an impact on the ICC’s prosecution. Thus, they became my additional hypotheses. Although in my research I ended up finding that they were more of an intervening variable than a causal mechanism, the literature was useful in understanding where these variables come in and how they impact cases.

Methodology

Research Question

Under what conditions is the ICC most likely to be successful in achieving Confirmation of Charges, where the Prosecutor’s efforts result in moving towards a trial?

Hypotheses

I expect to find a causal condition that affects how the ICC is able to achieve the Confirmation of Charges and move towards a trial. I believe that the strongest argument for the causal condition is when the states view the ICC as legitimate, as they are more likely to comply with proceedings. My main hypothesis is:

H1: The ICC is more likely to be successful in achieving confirmation of charges when states hold positive views of the ICC.

From this, I believe that there may be other competing explanations that play a role in the ICC’s ability to achieve the Confirmation of Charges Hearing. Thus, I propose two additional hypotheses:

H2: The ICC is more likely to be successful in achieving confirmation of charges when states do not have domestic proceedings (as the ICC is complementary) and the domestic political calculations would warrant ICC prosecution.

H3: The ICC is more likely to be successful in achieving confirmation of charges when states cooperate fully in proceedings, including fulfilling the vast majority of the ICC’s requests whether they are procedural, jurisdictional, or practical.

The null hypotheses is when there is no relationship between the two factors:

H0: There is no relationship between the state perceptions of the ICC and the ability of the ICC to achieve the Confirmation of Charges and move towards a trial.

Data Collection

The primary data source for cases was the ICC’s website and archives, where they have Case Fact and Report Sheets for each case. The data that I gathered from these sources are factual and unbiased, as my focus was on the process, not any subjective interpretation of information or outcomes of specific cases. However, the ICC did not provide all of the information that I needed to determine the different attributes of the cases. Other variables, such as media coverage, biases, and outside pressure from other states, was often hard to identify in these reports. Therefore, I also used outside reputable media sources, such as BBC and the Washington Post, that describe instances where these variables may be apparent. These sources had articles on states’ attitudes and actions regarding the ICC that I was able to add to my data, including whether the state views the ICC as legitimate, whether the state complies with proceedings, and whether the state calls for or acts upon the removal of the state from the ICC’s jurisdiction.

I only focused on cases that are Official Investigations and Situations of the ICC. I considered variables such as government type, the time span between the alleged violations and when the case was brought forward, the amount of evidence available, and extradition laws. Within each case that I analyzed, I also identified who initiated the proceedings, whether the state being investigated complied with proceedings, whether there was outside involvement from other states, whether there was media access, whether victims participated in the proceedings, and whether the case made it to the Confirmation of Charges stage (and if not, why). Even with the presence of many independent variables, I hypothesized there are few that have a causal impact on the ability of the ICC to investigate and prosecute cases, which I have outlined above. These include state biases, state cooperation, and domestic political calculations. At the end of my research, I picked four states that were reflective of the ICC and its ability to prosecute under a myriad of conditions: Uganda, DRC, Sudan, and Mali.

My main dependent variable is whether there was an investigation that achieved the Confirmation of Charges Hearing. Some cases have been able to attain this outcome and confirm charges in order to move towards a trial, and other cases have not been able to attain this outcome. I analyzed the different independent variables against this dependent variable to see if they had an impact on the outcome in the cases.

In order to do this, I read through each case and dissected them. I made notes of if, and when, these independent variables appear. I also looked at intervening variables that may have had an impact, such as the capacity of the state to be able to find and capture accused persons, the regime type of each state, who brought the investigation and case forward to be prosecuted, and the length of time between the alleged violations occurring and when the investigation into the situation was opened. Furthermore, I obtained data on the state’s views on the legitimacy of the ICC via news reports, news broadcasts, official statements by the government, and speeches. All of this data and information I then was able to compile into a large database to help me analyze and compare the cases.

The unit of analysis was individual cases. However, due to the nature of the project, I was also fundamentally looking at states and how they interact with these supranational organizations and within the larger global order with shared sovereignty. For my analysis, it was primarily qualitative, since the sample size of cases was not large enough where quantitative analysis would be possible. I made notes if these independent variables contributed to or influenced the outcome of the case. For instance, in a number of cases, the accused perpetrator decided to evade prosecution by using the instability of borders to hide out and avoid being captured and extradited to the ICC for the Confirmation of Charges Hearing. I then compared the cases to one another to see if there are any similarities or patterns, and whether my main hypotheses held true.

Case Analysis

Mali

Mali currently has one ongoing case and one closed case. Mali has been a state party of the ICC since 2000, and the cases to the ICC were self-referrals. Mali’s situation with the ICC arises from alleged war crimes committed since January 2012, mainly in three northern regions of Gao, Kidal and Timbuktu, with alleged incidents also occurring in the south in Bamako and Sévaré43. In January 2013, the Office of the Prosecutor issued an Article 53(1) Report, which alleges that the rebellion involved deliberate damaging of shrines in the city of Timbuktu, alleged attacks on a military bases in Gao, Kidal and Timbuktu, alleged execution of detainees at Aguelhok, and alleged incidents of looting and rape. In addition, there are alleged incidents of torture and forced disappearances44. The Prosecutor states that there is a reasonable basis to believe that war crimes have been committed in Mali since 201245.

The country is considered partly free by Freedom House, and recently (in 2019) the prime minister and president resigned due to ethnic violence and crime46. A 2012 coup led to a brief period of military rule, but Mali is now back to a semi-presidential republic and able to hold free and fair elections47. Furthermore, the country is one of poorest in the world48. Mali has a low HDI score and encounters lots of security challenges and , including instability in areas with rebel groups and . Particularly, state institutions are lacking, including the justice system. They do not have the capacity to pursue these cases, and in fact, the Malian government has had trouble in recent years controlling rebel groups in the northern areas of the country.

After domestic political calculations, the Malian government decided to self-refer the case to the ICC. This likely came after considering the domestic politics, as the Malian government could not handle the prosecutions. Moreover, there was international political support for the referral from various Western and African states, including ECOWAS49. It is likely Mali’s self-referral was due to the political want to charge the rebel groups and keep the government in power. In other words, the Malian government has come to the conclusion that getting the ICC involved will help achieve its political aims, including building legitimacy, restoring the government’s authority in these areas, and defeating the rebel groups50. More so, by arresting the rebel leaders and bringing them to the ICC, the leaders are out of Mali and cannot continue to build these rebel movements. The theory was that by doing the self-referral, the Malian government can continue to build legitimacy post-coup and military rule51.

More importantly, even with the self-referral, Mali has taken this seriously and cooperated with ICC requests. Combined with pro-ICC biases (as there have been no indications of any sort of negative bias towards the ICC or any negative comments made, including no indication of withdrawing from the Rome Statute or challenging the admissibility of the cases52,53), this has led to cases being past the confirmation of charges stage and are moving towards a trial54,55,56. This is seen in both the Al Mahdi and the Al Hassan cases. In both cases, Mali complied soon after the warrants were released and assisted in the extradition of the defendants to the ICC without delay or attempting to challenge any admissibility of the cases57.

Even though Niger (another state party to the Rome Statute) technically extradited Al-Mahdi to the ICC for his trial, Mali fully cooperated throughout the process58. Thus, there is a causal relationship between the Malian government cooperation and state biases and the ability of the ICC to achieve the Confirmation of Charges Hearing59. While this does not seem to be a direct causal relationship, there definitely is a connection between the variables.

Uganda

Uganda currently has two cases in the Pre Trial – At Large stage, and one case that is currently finishing up Trial. Uganda has been a state party to the ICC since 2002, and in January 2004, it referred the situation to the ICC60. Thus, all cases are self-referrals. The ICC investigations in Uganda have focused on alleged war crimes and crimes against humanity committed in the context of an armed predominantly between the Lord’s Resistance Army (LRA) and the national authorities, mainly in Northern Uganda, since 1 July 200261. The Prosecutor alleges that during the context of the armed conflict, war crimes, including murder; cruel treatment of civilians; intentionally directing an attack against a civilian population; pillaging; inducing rape; and forced enlistment of children; and “crimes against humanity, including murder; enslavement; sexual enslavement; rape; and inhumane acts of inflicting serious bodily injury and suffering” have been committed62. All accused remained at large for years, until LRA member Dominic Ongwen surrendered himself in January 2015. Other top members of the LRA, including Joseph Kony and Vincent Otti, remain at large63. Over the years, there have been reports of LRA members’ deaths. Once the ICC has independently confirmed the deaths, they have withdrawn charges64. However, the Prosecutor has specifically called on other states and state parties to assist Uganda in capturing and extraditing these accused to the ICC for trial65.

The country of Uganda is considered not free by Freedom House66. While the country does hold regular , the country has been ruled by the same party and president, Yoweri Kaguta Museveni, since 1986. This calls into question the legitimacy and credibility of these elections, and whether they are actually “free and fair”67. The ruling party, the National Resistance Movement (NRM), retains power through the manipulation of state resources, intimidation by security forces, and politicized prosecutions of opposition leaders. Uganda’s civil society and media sectors remain vibrant, despite suffering sporadic legal and extralegal harassment and state violence68. According to Freedom House, Uganda’s status declined from Partly Free to Not Free due to attempts by Museveni’s government to restrict free expression, including through surveillance of electronic communications69. Uganda also would be considered somewhat insecure. While the country does have a low HDI score, as there are issues of human rights abuses, AIDS runs rampant, and a very high infant mortality rate70. Furthermore, human rights abuses and impunity by the government remain problematic, including violence and intimidation against journalists, substantial interference with the rights of peaceful assembly and freedom of association; restrictions on political participation; ; and harassment by the security forces71.

Despite the political biases and the self-referral, Uganda has also had issues that have prohibited cooperation in the cases. Thus, the relationship with the ICC has been strained in recent years72. In 2008, the International Crimes Division (ICD) was established under the High Court of Uganda to try war crimes, crimes against humanity, genocide, terrorism, human-trafficking, piracy, and other international crimes73. This in theory was good, since it meant that Uganda was taking these crimes seriously and beginning to incorporate them into their national judicial proceedings. However, the ICD has been lacking in certain areas. For instance, the ICD has experienced challenges in prosecuting high-level LRA officials due to the country’s amnesty laws74.

Even though President Museveni self-referred the situation to the ICC, it was likely based on domestic political calculations. By bringing the LRA and other rebel groups to the ICC, it would keep President Museveni and the NRM in power and reduce any political opposition. It would seem prudent for Uganda to cooperate fully with the ICC so that President Museveni could achieve his political goals. Yet, Uganda is challenging the admissibility of some existing cases in the ICC. Uganda has refused to capture and extradite the accused, arguing that they are not admissible before the ICC and should be tried domestically75,76.

Furthermore, Uganda has had difficulty capturing rebels and individuals at-large due to the instability of the area and lack of security and secure borders. The rebels are likely using the instability and insecurity to “hide out” and evade prosecution. Uganda likely does not have the capacity and capability to go out and find these accused, despite their commitments to the Rome Statute and the ICC. We are seeing this in terms of not getting the extradition and confirmation of charges hearings on Kony et. al. This lack of support is inhibiting the ability to arrest the other accused persons and eventually, hopefully be able to have a confirmation of charges hearing77.

Strangely, this is in contrast to the Ongwen case. Uganda has cooperated with the ICC on this case, and this cooperation has been critical to the success of the trial78. For example, the government has provided useful evidence in the form of audio recordings and LRA radio communication intercepts. Moreover, Uganda assisted in the capture and arrest of Ongwen with the combined efforts of the CAR and American forces79. Cooperation with the ICC helped the Ongwen case obtain the confirmation of charges and move to the trial phase, despite some challenges with arresting him before he voluntarily turned himself in80. Once he was turned in and extradited to the ICC, Uganda has complied with the ICC and cooperated with things such as evidence requests.81.

Nevertheless, Museveni’s comments in recent years have shown a strained relationship with the ICC. In 2014, he lashed out at the 2011 indictment of allies Kenyan President Uhuru Kenyatta and his deputy William Ruto82. He has described it as “a bunch of useless people” and has called on other states to withdraw from the Rome Statute83. In addition, he has publicly flaunted his refusal to cooperate with the ICC in relation to offering asylum to Omar Al-Bashir and refusing to extradite him to the ICC to face trial84. Additionally, all of the cases thus far are LRA leaders, while Museveni and the government have not been charged. Museveni and government leaders have not been charged, despite calls from civil society to do so85. This likely comes from an agreement between the Ugandan government and the ICC’s first Prosecutor Luis Gabriel Moreno-Ocampo86. It is possible under Prosecutor Fatou Bensouda this may change, and thus Museveni and the NRM are not precluded from potential ICC prosecution. If he is worried about this, it would be in line with the comments that he has made regarding the ICC.

Despite clear state biases towards the ICC, Uganda is still cooperating with the ICC in some instances. Therefore, I believe that Uganda is more of a middle-ground case. While the state biases and cooperation have assisted in the various prosecutions in attaining the Confirmation of Charges, the state capacity and political calculations have also inhibited in certain prosecutions. In addition, we also see in Uganda that regardless of state biases against the ICC, we can still see success in achieving the Confirmation of Charges hearing due to state cooperation. Therefore, this shows the importance of domestic political calculations and state capacity as intervening variables. For instance, we do see with the Ongwen case that domestic political calculations and full cooperation do help bring cases to the ICC and get the confirmation of charges hearing.

However, we also see where state capacity plays a role as an intervening variable. In fact, the lack of having one for Kony et. al., is actually more likely attributable to the lack of state capacity that Uganda and the surrounding states have, especially when it comes to instability of the borders. If the states were able to capture Kony and extradite him to the ICC, it seems likely that he will have a confirmation of charges hearing and that Uganda will cooperate in a similar manner to the Ongwen case. This is also highlighted by the fact that Museveni and the NRM want to charge the rebel groups and remove any political opposition.

Democratic Republic of the Congo (DRC)

The DRC has six cases with the ICC – one at large, one charges not confirmed, one acquittal, and three convictions. The DRC been a state party to the ICC since 2002, and in 2004, the DRC referred the situation in its territory to the ICC87. The ICC investigation in the DRC has focused on alleged war crimes and crimes against humanity committed mainly in the eastern DRC, specifically in the Ituri region and the North and South Kivu Provinces. While alleged crimes have been reported in the DRC since the 1990s, the ICC’s jurisdiction limits the investigation to only 2002 onwards88. The Prosecutor alleges there have been the following war crimes: enlisting and conscripting child soldiers under the age of fifteen years and using them to participate actively in hostilities; murder and attempted murder; willful killing; attacking civilians; rape; sexual of civilians; pillaging; displacing civilians; attacking protected objects; destroying property; rape; sexual slavery; mutilation; cruel treatment; torture; destruction of property; pillaging and outrages against personal dignity; and crimes against humanity: murder and attempted murder; torture; rape; sexual slavery; inhuman acts; persecution; forcible transfer of population, attacking a civilian population; destroying property; and pillaging89.

The DRC is considered not free by Freedom House90. The country has been plagued by violence and unrest, especially ethnic violence and conflict from rebel groups and opposition leaders. The political system in the DRC has been problematic in recent years with repeated postponement of elections91. When elections were finally held in 2018, there were issues with balloting, making the elections likely not free and fair92. Furthermore, the DRC would be considered insecure. The widespread outbreak of the Ebola virus has been difficult to contain, and there are issues with high infant mortality rates, poor infrastructure, and limited public services 93. The DRC has restrictions on basic civil liberties throughout the country and serious human rights violations, including voter suppression, harassment, and limits on free speech94. The government is riddled with a lot of corruption and officials have carried out widespread repression and serious human rights violations against political opposition leaders, supporters, and journalists. Impunity with government officials was also a problem95.

The DRC not only was the first country to refer its situation to the ICC, but also has been immensely cooperating with the ICC in all investigations. The DRC has been pro-ICC, has extradited officials in its investigations, and has helped out in other cases that the ICC has brought96. In fact, in 2015, after years of advocacy by civil society, the DRC adopted a bill incorporating Rome Statute crimes into Congolese criminal law, thus further assisting the country’s cooperation with the ICC97. The DRC has also completed ad hoc agreements with the ICC to enforce the sentences enacted for Thomas Lubanga and Germain Katanga. It does seem that the national and local courts are gaining legitimacy and capability to prosecute these crimes on their own. This is highlighted by the fact that a number of national and local courts have been undertaking prosecutions of military officials in the eastern DRC, who have been accused of war crimes and crimes against humanity98. For instance, Katanga was charged in the DRC on war crimes shortly after he was released from prison on the ICC charges99.

However, all those charged thus far by the ICC are rebel and opposition leaders, even though the government has also committed crimes100. This is leading to questions on Kabila’s self-referral and whether there were political motives behind it101. While the national courts do not have the capacity to take on these prosecutions, the ICC’s track record lends a hand to the possibility that this was politically motivated102. It is possible that the referral was for getting the rebels and any opposition to be charged, in order to remove any political opposition and keep his government in power103. Prosecutor Luis Moreno-Ocampo had no real strategy for the country, and “initiated sporadic prosecutions which targeted only Kabila’s rivals, including Bemba who had almost defeated him in the 2006 presidential election. In stark contrast, the Congolese government’s crimes received no scrutiny in The Hague”104. This has likely started to undermine the ICC’s legitimacy and impartiality, since there have been many victims without justice and there have not been any clear explanations on why these cases are not being pursued105. Moreover, there have been some recent (albeit vague) calls for the DRC to withdraw from the Rome Statute106. Nevertheless, no actions so far have been taken107.

Overall, the DRC has been a model for the ICC as a state party. They have generally complied with the cases when they are able to, including extraditing accused persons, giving evidence, and gathering witnesses. The cases from the DRC are coming to the ICC, having confirmation of charges hearings, and moving towards trial. Two of the biggest convictions by the ICC (Katanga and Ntaganda) are from the DRC. While Ngudjolo Chui was acquitted, he still had a fair and impartial trial. In many ways, Ngudjolo Chui’s acquittal may be more attributed to the lengthy gaps between the warrant of arrest, confirmation of charges hearing, and the trial. Witnesses could not remember whether Ngudjolo Chui ordered the attacks, and this is likely just a product of time. Thus, the evidence did not reach the required standard and he was acquitted.

Nevertheless, there was one DRC case (Mbarushimana) where the charges were withdrawn following the confirmation of charges hearing. However, the DRC assisted in the case by handing over evidence and witnesses. Despite this, the ICC could not reach the required standard and believed that the acts could not be considered part of a course of conduct amounting to “an attack directed against the civilian population” and Mbarushimana did not provide any contribution to the commission of the alleged crimes, even less a “significant” one. The withdrawal of these charges was likely due to the lack of evidence connecting him to the versus the DRC attempting to impede the case by refusing to cooperate.

Moreover, the Mudacumura case still being at large (with the charges possibly going to be withdrawn due to his death in September 2019) is likely more attributed to the instability and inability of the DRC to control its borders and capture those who are accused. It is alleged that Mudacumura was on the run for many years and was using the insecure borders and states to evade prosecution. Once the ICC does independently confirm his death, the charges will likely be dropped, as the ICC cannot prosecute someone who is not alive.

Sudan

Sudan is not a member of the Rome Statute and is not a party to the ICC108. The situation in Darfur was actually referred to the ICC by the UN Security Council in March 2005, with a formal investigation opening in June 2005109. The situation under investigation is dealing with allegations of genocide, war crimes, and crimes against humanity committed in Darfur since 2002110. This is in the context of a failed state and a in Sudan, with charges against different parties, including Sudanese Government officials, Militia/Janjaweed leaders, and leaders of the Resistance Front111.

Sudan currently has six cases with the ICC: five at-large which have not been extradited to the ICC yet, and one case where the charges were not confirmed. Of the five at large, three are in custody in Sudan and have not been extradited to the ICC and two are at large within the country and thus have not been extradited to the ICC112. The case with the charges not confirmed, Abu Gharda, the accused went to the ICC voluntarily but the charges were not confirmed due to weak evidence113. The Prosecutor alleges there have been instances of genocide, murder, attacks against the civilian population, destruction of property, rape, pillaging, outrage upon personal dignity, violence to life and person, intentionally directing attacks against personnel, installations, material, units or vehicles involved in a peacekeeping mission, persecution, forcible transfer of population, rape, inhumane acts, imprisonment or severe deprivation of liberty, torture, and extermination114.

Sudan does not like the ICC and believes that it is biased against African states115,116. They have given statements calling out the ICC for “targeting African states” and think that the ICC is a product of the West117,118. Moreover, Sudanese officials have called on other African states to withdraw from the Rome Statute119. Sudan has repeatedly refused to cooperate with any investigation or prosecution, including extraditing accused persons to the ICC or providing evidence to the Court120,121,122. However, this may change in the coming months with the fall of Al-Bashir and the potential referral to the ICC to finally face prosecution123. Furthermore, even though it is an investigation opened on the request of the Security Council, the Security Council has consistently failed to provide the necessary support for the investigation and has failed to take action on ICC judges’ findings of non-compliance by Sudan124125.

Sudan is considered a failed state, insecure and not free according to Freedom House126. There are lots of human rights abuses, no free and fair elections, and few political rights and civil liberties. While Al-Bashir was elected, he ruled the country like a dictatorship with lots of torture, repression, and violence127. Sudan is experiencing lots of poverty, instability (with terrorist organizations and rebel groups), and restrictions on civil society and the media128. In many ways, Sudan is a humanitarian crisis.

As Sudan is not cooperating with the ICC, many of the cases are still stuck in the At Large stage. The accused persons are not being extradited and have not faced the ICC. This may change in the coming months with the likely extradition of Al Bashir and some of the other government officials charged by the ICC. Of the cases that have made it past the At Large stage, this is due to the accused persons appearing voluntarily before the ICC and not Sudan’s extradition (since they are refusing to do so). The ICC made a grave mistake in Banda’s case by allowing him to remain free until his trial, since it has delayed the start of it and the potential for justice. He also did come to the ICC voluntarily, but has used the ineptitude of the Prosecutor to evade prosecution. The charges were confirmed due to his voluntary appearance and the evidence that the Prosecution has gathered on its own, as Sudan has refused to cooperate with any sort of request by the ICC.

With regards to Abu Gharda, the accused only appeared at the ICC by voluntarily appearing. If he did not do so, there is no way that Sudan would have extradited him. The charges were not confirmed due to bad evidence and witness inconsistencies by the Prosecutor, and Sudan did not cooperate in gathering evidence. It is likely that if Sudan did so, the evidence would have been better and the charges would have been confirmed. Overall, Sudan also proves the causations in the hypotheses. The lack of cooperation and the domestic political calculations to not comply or become a state party, combined with the anti-ICC bias, has precluded almost all of the cases to get to the ICC and have the Confirmation of Charges. The ones that have moved past it, including the Banda case and the Abu Gharda case, were only somewhat successful. The accused only came to the ICC voluntarily, but in both cases, due to a lack of cooperation and evidence, the accused is now at large awaiting trial (Banda) or the charges were not confirmed due to bad evidence and a lack of cooperation (Abu Gharda).

Findings

I confirmed there is a connection between the state biases and the ability of the ICC to achieve a Confirmation of Charges hearing. While it may not be a direct causal relationship, state biases have played a role in all four situations: Mali, Uganda, the DRC, and Sudan. Mali and the DRC hold positive views of the ICC, leading them to be more likely to achieve the Confirmation of Charges hearing and move towards a trial. For instance, the positive statements and perspective of the ICC has led to Mali cooperating with the ICC and ensuring that Abdoul Aziz Ag Mohamed Ag Mahmoud, Al Hassan is heading towards a trial (scheduled for July 2020). Al Hassan was quickly surrendered to the ICC by the Malian government (after being in custody in France) when the arrest warrant was released. Shortly thereafter, he had his Confirmation of Charges Hearings and the charges were confirmed. Mali cooperated through extradition, giving witnesses and evidence and not challenging the admissibility of the case.

Similarly, the DRC is cooperating with the ICC and thus the cases are achieving the Confirmation of Charges Hearing. For example, the DRC captured and extradited Lubanga once he was indicted by the ICC. Like Katanga, he was already in the custody of the Congolese authorities at the time of arrest and extradition. Nevertheless, the DRC successfully cooperated with the ICC in all requests, and was able to achieve not only the Confirmation of Charges, but also a conviction following a trial.

On the other hand, Sudan holds an anti-ICC bias and this bias is reflected in outstanding cases. Most of the cases have not moved forward to the Confirmation of Charges Hearing, and if they did, it was likely due to other circumstances or causes. For example, Al Bashir, despite being indicted in 2009, has refused to come to the ICC for prosecution. As the authoritarian dictator of Sudan, he openly taunted the institution and called it “a product of the West” since he alleges that it is biased against African states. Therefore, his case has been stuck in the At-Large stage for many years. This may change in the coming months and years with the recent coup and change of government in April 2019, but what will happen remains unknown.

With regard to the Ugandan cases, state biases did not impact the ability of the cases to achieve the Confirmation of Charges Hearing. Despite negative comments about the ICC from President Museveni, some Ugandan cases are still achieving the Confirmation of Charges and moving towards a trial. The best example is the Dominic Ongwen case, where regardless of Museveni openly touting his opposition to the ICC, Ongwen still voluntarily came to the ICC for prosecution and is currently finishing up his trial.

Overall, while there is a connection between state biases and the ability of the ICC to prosecute, due to the limitations of a small sample size I cannot definitively say that there is a direct causal relationship that would be generalizable to a broader set of cases. Throughout conducting the analysis of each case, I found multiple other intervening factors and potential relationships as well, which I believe merit continued study before confirming a direct causal relationship.

Another hypothesis was that state cooperation would affect the ability of the ICC to achieve a Confirmation of Charges hearing and move towards trial. The analysis revealed there is some sort of connection, similar to the state biases. I do believe that this is a causal relationship, similar to the state biases relationship. However, due to the presence of a small sample size and additional intervening factors, I cannot definitely say that this is a direct causal relationship. This is seen in all four countries. In the Mali cases, both went to the Confirmation of Charges and are moving towards a trial. Mali cooperated in both cases and assisted in the extradition of the accused, gathered witnesses, and produced evidence. The DRC also is a good example of how state cooperation affects the Confirmation of Charges Hearing. The DRC assisted in many cases in extraditing officials and complying with evidence and witness requests. Specifically, the Katanga case was able to confirm the charges after the accused was extradited to the ICC and the DRC cooperated.

Despite President Museveni’s comments, the Ugandan government showed some cooperated in cases. In some instances, they are challenging the admissibility of cases and refusing to capture and extradite the accused. However, as we see in the Ongwen case, Uganda has been readily cooperating with the ICC in extradition and evidence and witness requests. This has been instrumental to the success of the Ongwen case in not only achieving the Confirmation of Charges Hearing but also moving towards trial. This cooperation comes in the face of President Museveni’s comments and perceptions that the ICC is biased against African states. Thus, the state biases do not fully explain the ability of the ICC to prosecute, and state cooperation does not fully explain it either.

In examining Sudan, state cooperation plays a critical role. As Sudan is vehemently opposed to the ICC, they also have a history of refusing to cooperate with the institution. This may change in the coming months with the possible extradition of Al Bashir and others, but in the past Sudan has refused to cooperate with any requests by the ICC. Thus, nearly all cases have been stuck in the At-Large stage for many years. With regards to the two cases that have moved past the At-Large stage and have moved forward, the accused only came to the ICC voluntarily. While the Abu Gharda case did have the Confirmation of Charges Hearing, the ICC refused to confirm charges on the basis of bad evidence and witness inconsistencies by the Prosecutor, and Sudan did not cooperate in gathering evidence. It is likely that if Sudan did so, the evidence would have been better and the charges would have been confirmed. Again due to the limitations of a small sample size, I cannot definitively say that there is a causal relationship between state cooperation and ICC success. There seems to be some sort of connection and a correlation between state cooperation and the ability of the ICC to achieve the Confirmation of Charges Hearing, but a larger sample would likely reveal more definitive results.

My analysis revealed domestic politics is likely more of an intervening variable than an independent variable. Domestic politics impacts decisions by states, but this is more in regards to referring the situation to the Office of the Prosecutor or cooperating with the ICC’s requests. I hypothesize states are calculating whether it is prudent to cooperate with the ICC or refer the case to the ICC based on domestic political calculations. For instance, while Uganda established its own International Crimes Division to prosecute these cases domestically, the institution just did not have the capacity to do so. It was better for Uganda to refer the cases to the ICC.

Nevertheless, it is likely that additional domestic politics pushed President Museveni to refer the situation to the ICC in the first place. By bringing the LRA and other rebel groups to the ICC, it would keep President Museveni and the NRM in power and reduce any political opposition. It would seem practical for Uganda to refer the situation and cooperate fully with the ICC so that President Museveni could achieve his political goals. Therefore, I believe that domestic politics have an impact on the cases and how they are prosecuted, but I do not believe that it fully explains the relationship as a causal mechanism.

Interestingly enough, I found that there is also an additional intervening variable that is affecting how cases are able to attain the Confirmation of Charges Hearing: state capacity. Some states did not have the capacity to be able to find and capture individuals, and that prohibited the cases from moving forward. For example, Joseph Kony and his associates have been on the run for many years, and while Uganda (as a state party) is committed to their extradition to the ICC, these accused persons have not yet been captured or extradited. This is partly due to the insecurity of the states and the surrounding borders. Kony and his allies are likely using the instability of the area to “hide out” and evade prosecution, and Uganda likely does not have the capacity and capability to go out and find these accused, despite their commitments to the Rome Statute and the ICC. This lack of support is inhibiting the ability to arrest these accused persons and eventually be able to have a Confirmation of Charges Hearing.

Overall, I believe that my hypotheses were correct in establishing that there likely is causal relationship between state biases, state cooperation, and the ability of the ICC to achieve the Confirmation of Charges Hearings. While the connections are less likely to be a direct causal mechanism as there are multiple forces (including intervening variables such as domestic politics and state capacity) at play, I believe there is some causation between pro-ICC state biases, full cooperation with the ICC, and the ability of the ICC to prosecute cases and achieve the Confirmation of Charges Hearing. Further research and additional cases may be able to prove a stronger evidence of a causal relationship.

Directions for Future Research

I did not have many problems in the data collection stage. However, some information may not be available to the public, and certain conditions, such as who initiated proceedings or if there was outside pressure from other states, may not be clear. There are also multiple outside factors which made data collection and analysis difficult, including the ability of domestic or regional courts to prosecute and the lack of an enforcement mechanism for the ICC. It was difficult to single out specific causal conditions for all cases. Intervening and antecedent variables were present, especially in the aggregation of cases. In the future, with analysis of the additional cases and potentially more information available, a stronger causal relationship could be established or additional intervening, antecedent, or causal variables could be discovered.

Another concern was the small sample size, as there are only 45 cases (44 people) that have resulted in an indictment from an investigation. Thus, statistical tests and quantitative analysis were not the best way to test the data, and I had to do more of a qualitative analysis. My role in this research project, especially the data collection and analysis, was to make objective observations in the hopes of identifying possible causal relationships. As I used case data, there were no interviews or surveys that had incidental bias. Additionally, while the variation of some concepts are easily and empirically measured, some concepts such as legitimacy or views of a state on the ICC required more analysis, especially as I had to construct a measure of variation. In the future, with analysis of the additional cases, a stronger causal relationship could be established between the variables. In addition, it is possible that I can discover additional intervening, antecedent, or causal variables.

Nonetheless, this research was fundamental to advancing an understanding of how these courts work, the nature of these investigations and prosecutions, and how to encourage these international judicial bodies to more effectively prosecute crimes against humanity. In sum, the ICC is a complicated and complex organization that has seen its fair share of successes and failures. Through this research project, I confirmed the hypothesis. While a causal relationship between perceptions of legitimacy and the ability of the ICC to prosecute exists, whether this is a direct causal relationship remains unknown. Further research and additional cases may be able to prove a potential direct causal relationship. Furthermore, a causal relationship between state cooperation and the ability of the ICC to achieve the Confirmation of Charges Hearing also exists. Again, whether this is a direct causal relationship also remains unknown.

This research expanded the field, as it added to gaps in knowledge. I was able to complete a full analysis of cases from the ICC and see how these differing variables impact the ability of the ICC to prosecute. Further research would allow me to analyze additional cases from the ICC and continue this research. As seen from my analysis, there is much that the ICC can improve on. For example, the ICC needs to change its prosecution strategy so that it is not solely focused on African states and is ensuring fair and impartial proceedings in every case that it brings. This will help change states’ perceptions of the ICC. Building the legitimacy of the institution is critical, but part of it is dependent on the states. The states need to cooperate with the ICC’s requests and assist in the proceedings, whether it is gathering evidence, extraditing witnesses, or providing financial support. When both sides work together, the world can come together and guarantee a more just and peaceful world for years to come.


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Endnotes

1.) Clarke, Kamari Maxine. 2009. Fictions of Justice: The International Criminal Court and the Challenge of Legal Pluralism in Sub-Saharan Africa. Cambridge, UK: Cambridge University Press. https://www.law.berkeley.edu/files/Fictions_of_Justice.pdf

2.) Clarke, Kamari Maxine. 2009. Fictions of Justice: The International Criminal Court and the Challenge of Legal Pluralism in Sub-Saharan Africa. Cambridge, UK: Cambridge University Press. https://www.law.berkeley.edu/files/Fictions_of_Justice.pdf

3.) Clarke, Kamari Maxine. 2009. Fictions of Justice: The International Criminal Court and the Challenge of Legal Pluralism in Sub-Saharan Africa. Cambridge, UK: Cambridge University Press. https://www.law.berkeley.edu/files/Fictions_of_Justice.pdf

4.) Paust, Jordan J. 2010. "Crimes Within The Limited Jurisdiction Of The International Criminal Court." John Marshall Law Review 43, no. 3 (Spring): 681-713. https://repository.jmls.edu/cgi/viewcontent.cgi?article=1090&context=lawreview

5.) Paust, Jordan J. 2010. "Crimes Within The Limited Jurisdiction Of The International Criminal Court." John Marshall Law Review 43, no. 3 (Spring): 681-713. https://repository.jmls.edu/cgi/viewcontent.cgi?article=1090&context=lawreview

6.) Ssekandi, Francis, and Netsanet Tesfay. 2017. “Engendered Discontent: The International Criminal Court in Africa” Georgetown Journal of International Affairs 18, no. 2 (Summer / Fall 2017): 77-93. https://www.jstor.org/stable/26396022

7.) Prorok, Alyssa. 2017. “The (In)compatibility of Peace and Justice? The International Criminal Court and Civil Conflict Termination.” International Organization 71, no. 2 (Spring 2017): 213-243 https://doi.org/10.1017/S0020818317000078

8.) Prorok, Alyssa. 2017. “The (In)compatibility of Peace and Justice? The International Criminal Court and Civil Conflict Termination.” International Organization 71, no. 2 (Spring 2017): 213-243 https://doi.org/10.1017/S0020818317000078

9.) Ssekandi, Francis, and Netsanet Tesfay. 2017. “Engendered Discontent: The International Criminal Court in Africa” Georgetown Journal of International Affairs 18, no. 2 (Summer / Fall 2017): 77-93. https://www.jstor.org/stable/26396022

10.) Ssekandi, Francis, and Netsanet Tesfay. 2017. “Engendered Discontent: The International Criminal Court in Africa” Georgetown Journal of International Affairs 18, no. 2 (Summer / Fall 2017): 77-93. https://www.jstor.org/stable/26396022

11.) Villa-Vicencio, Charles. 2000. "Why Perpetrators Should Not Always Be Prosecuted: Where the International Criminal Court and Truth Commissions Meet." Emory Law Journal 49: 205-22.

12.) Villa-Vicencio, Charles. 2000. "Why Perpetrators Should Not Always Be Prosecuted: Where the International Criminal Court and Truth Commissions Meet." Emory Law Journal 49: 205-22.

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18.) Clark, Janine Natalya. 2011. “Peace, Justice and the International Criminal Court: Limitations and Possibilities.” Journal of International Criminal Justice 9 (3): 521–545. https://doi.org/10.1093/jicj/mqr007

19.) Human Rights Watch. 2015. “DR Congo: ICC Convict Faces Domestic Charges.” December 23, 2015. Accessed November 3, 2019. https://www.hrw.org/news/2015/12/23/dr-congo-icc-convict-faces-domestic-charges#

20.) Mills, Kurt. 2012. "Bashir is Dividing Us: Africa and the International Criminal Court." Human Rights Quarterly 34, no. 2 (May 2012): 404-47. doi:10.1353/hrq.2012.0030.

21.) Khan, Minhas Majeed, and Abbas Marwat. 2016. “International Criminal Court (ICC): An Analysis of its Successes and Failures and Challenges Faced by the ICC Tribunals for War Crimes.” The Dialogue 11 (3): 242-256. http://www.qurtuba.edu.pk/thedialogue/The%20Dialogue/11_3/Dialogue_July_September2016_242-256.pdf

22.) Khan, Minhas Majeed, and Abbas Marwat. 2016. “International Criminal Court (ICC): An Analysis of its Successes and Failures and Challenges Faced by the ICC Tribunals for War Crimes.” The Dialogue 11 (3): 242-256. http://www.qurtuba.edu.pk/thedialogue/The%20Dialogue/11_3/Dialogue_July_September2016_242-256.pdf

23.) Khan, Minhas Majeed, and Abbas Marwat. 2016. “International Criminal Court (ICC): An Analysis of its Successes and Failures and Challenges Faced by the ICC Tribunals for War Crimes.” The Dialogue 11 (3): 242-256. http://www.qurtuba.edu.pk/thedialogue/The%20Dialogue/11_3/Dialogue_July_September2016_242-256.pdf

24.) Mills, Kurt. 2012. "Bashir is Dividing Us: Africa and the International Criminal Court." Human Rights Quarterly 34, no. 2 (May 2012): 404-47. doi:10.1353/hrq.2012.0030.

25.) Mills, Kurt. 2012. "Bashir is Dividing Us: Africa and the International Criminal Court." Human Rights Quarterly 34, no. 2 (May 2012): 404-47. doi:10.1353/hrq.2012.0030.

26.) Human Rights Watch. 2015. “DR Congo: ICC Convict Faces Domestic Charges.” December 23, 2015. Accessed November 3, 2019. https://www.hrw.org/news/2015/12/23/dr-congo-icc-convict-faces-domestic-charges#

27.) Human Rights Watch. 2015. “DR Congo: ICC Convict Faces Domestic Charges.” December 23, 2015. Accessed November 3, 2019. https://www.hrw.org/news/2015/12/23/dr-congo-icc-convict-faces-domestic-charges#

28.) Human Rights Watch. 2015. “DR Congo: ICC Convict Faces Domestic Charges.” December 23, 2015. Accessed November 3, 2019. https://www.hrw.org/news/2015/12/23/dr-congo-icc-convict-faces-domestic-charges#

29.) Human Rights Watch. 2015. “DR Congo: ICC Convict Faces Domestic Charges.” December 23, 2015. Accessed November 3, 2019. https://www.hrw.org/news/2015/12/23/dr-congo-icc-convict-faces-domestic-charges#

30.) Human Rights Watch. 2015. “DR Congo: ICC Convict Faces Domestic Charges.” December 23, 2015. Accessed November 3, 2019. https://www.hrw.org/news/2015/12/23/dr-congo-icc-convict-faces-domestic-charges#

31.) Hillebrecht, Courtney, and Scott Straus. 2017. “Who Pursues the Perpetrators?: State Cooperation with the ICC.” Human Rights Quarterly 39 no. 1 (February 2017): 162-188. https://doi.org/10.1353/hrq.2017.0006

32.) Hillebrecht, Courtney, and Scott Straus. 2017. “Who Pursues the Perpetrators?: State Cooperation with the ICC.” Human Rights Quarterly 39 no. 1 (February 2017): 162-188. https://doi.org/10.1353/hrq.2017.0006

33.) Hillebrecht, Courtney, and Scott Straus. 2017. “Who Pursues the Perpetrators?: State Cooperation with the ICC.” Human Rights Quarterly 39 no. 1 (February 2017): 162-188. https://doi.org/10.1353/hrq.2017.0006

34.) Mbata Mangu, André. 2015. “The International Criminal Court, Justice, Peace and the Fight against Impunity in Africa: An Overview.” Africa Development / Afrique et Développement 40, no. 2, International Criminal Justice/Cour pénale international: 7-32. https://www.jstor.org/stable/afrdevafrdev.40.2.7?seq=1

35.) Mbata Mangu, André. 2015. “The International Criminal Court, Justice, Peace and the Fight against Impunity in Africa: An Overview.” Africa Development / Afrique et Développement 40, no. 2, International Criminal Justice/Cour pénale international: 7-32. https://www.jstor.org/stable/afrdevafrdev.40.2.7?seq=1

36.) Mbata Mangu, André. 2015. “The International Criminal Court, Justice, Peace and the Fight against Impunity in Africa: An Overview.” Africa Development / Afrique et Développement 40, no. 2, International Criminal Justice/Cour pénale international: 7-32. https://www.jstor.org/stable/afrdevafrdev.40.2.7?seq=1

37.) Mbata Mangu, André. 2015. “The International Criminal Court, Justice, Peace and the Fight against Impunity in Africa: An Overview.” Africa Development / Afrique et Développement 40, no. 2, International Criminal Justice/Cour pénale international: 7-32. https://www.jstor.org/stable/afrdevafrdev.40.2.7?seq=1

38.) Gegout, Catherine. 2013. “The International Criminal Court: limits, potential and conditions for the promotion of justice and peace.” Third World Quarterly 34 (5): 800-818. DOI: 10.1080/01436597.2013.800737

39.) Gegout, Catherine. 2013. “The International Criminal Court: limits, potential and conditions for the promotion of justice and peace.” Third World Quarterly 34 (5): 800-818. DOI: 10.1080/01436597.2013.800737

40.) Gegout, Catherine. 2013. “The International Criminal Court: limits, potential and conditions for the promotion of justice and peace.” Third World Quarterly 34 (5): 800-818. DOI: 10.1080/01436597.2013.800737

41.) Gegout, Catherine. 2013. “The International Criminal Court: limits, potential and conditions for the promotion of justice and peace.” Third World Quarterly 34 (5): 800-818. DOI: 10.1080/01436597.2013.800737

42.) Gegout, Catherine. 2013. “The International Criminal Court: limits, potential and conditions for the promotion of justice and peace.” Third World Quarterly 34 (5): 800-818. DOI: 10.1080/01436597.2013.800737

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44.) International Criminal Court. n.d. “Mali: Situation in the Republic of Mali. Accessed March 8, 2020. www.icc-cpi.int/mali.

45.) International Criminal Court. n.d. “Mali: Situation in the Republic of Mali. Accessed March 8, 2020. www.icc-cpi.int/mali.

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49.) Unknown Author. 2012. “ECOWAS call on ICC over ‘war crimes’ in Mali.” Al Jazeera. July 7, 2012. Accessed March 7, 2020. https://www.aljazeera.com/news/africa/2012/07/201277194319595934.html

50.) Kersten, Mark. 2012. “The ICC in Mali: Just Another ICC Intervention in Africa?.” Global Policy Forum. July 19, 2012. Accessed March 7, 2020. https://www.globalpolicy.org/international-justice/general-articles-on-international-justice/51784-the-icc-in-mali-just-another-icc-intervention-in-africa.html

51.) Louw, Antoinette, and Ottilia Anna Maunganidze. 2012. “The decision by the government of Mali to refer the situation in the country has several implications for the country, Africa and the ICC.” Institute for Security Studies. July 24, 2012. Accessed March 7, 2020. https://issafrica.org/iss-today/implications-of-another-african-case-as-mali-self-refers-to-the-icc

52.) Unknown Author. 2018. “Mali hands 'de facto chief of Islamic Police' over to ICC.” Al Jazeera. April 1, 2018. Accessed March 8, 2020. https://www.aljazeera.com/news/2018/04/mali-hands-de-facto-chief-islamic-police-icc-180401080736694.html

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54.) Koite Doumbia, Mama. 2018. “Mali / Civil society welcomes transfer of Timbuktu crimes suspect Al Hassan to ICC.” Coalition for the International Criminal Court. April 4, 2018. Accessed February 22, 2020. http://www.coalitionfortheicc.org/news/20180404/mali-civil-society-welcomes-transfer-timbuktu-crimes-suspect-al-hassan-icc

55.) Coalition for the International Criminal Court. n.d. “Ahmad al-Faqi al-Mahdi.” Accessed March 8, 2020. http://www.coalitionfortheicc.org/cases/ahmad-alfaqi-almahdi

56.) Unknown Author. 2018. “Mali hands 'de facto chief of Islamic Police' over to ICC.” Al Jazeera. April 4, 2018. Accessed March 8, 2020. https://www.aljazeera.com/news/2018/04/mali-hands-de-facto-chief-islamic-police-icc-180401080736694.html

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102.) Labuda, Patryk I. 2017. “Taking Complementarity Seriously: Why is the International Criminal Court Not Investigating Government Crimes in Congo?.” Opinio Juris. April 28, 2017. Accessed November 8, 2019. http://opiniojuris.org/2017/04/28/33093/

103.) Labuda, Patryk I. 2017. “Taking Complementarity Seriously: Why is the International Criminal Court Not Investigating Government Crimes in Congo?.” Opinio Juris. April 28, 2017. Accessed November 8, 2019. http://opiniojuris.org/2017/04/28/33093/

104.) Labuda, Patryk I. 2017. “Taking Complementarity Seriously: Why is the International Criminal Court Not Investigating Government Crimes in Congo?.” Opinio Juris. April 28, 2017. Accessed November 8, 2019. http://opiniojuris.org/2017/04/28/33093/

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107.) Fagan, Laureen. 2017. “ICC and Africa: DRC warnings, Zambia questions as al-Bashir calls for new court.” Africa Times. April 3, 2017. Accessed November 15, 2019. https://africatimes.com/2017/04/03/icc-and-africa-drc-warnings-zambia-questions-as-al-bashir-calls-for-new-court/

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117.) Elsheikh, Elsadig. 2015. “Sudan and the International Criminal Court Revisited: The Dilemma of Retributive Justice and the Question of ‘Responsibility to Protect’.” UC Berkeley Othering and Belonging Institute. August 18, 2015. Accessed February 22, 2020. https://belonging.berkeley.edu/sudan-and-international-criminal-court-revisited-dilemma-retributive-justice-and-question

118.) Allo, Awol K. 2018. “The ICC’s problem is not overt racism, it is Eurocentrism.” Al Jazeera. July 28, 2018. Accessed November 2, 2019. https://www.aljazeera.com/indepth/opinion/icc-problem-simple-racism-eurocentricism-180725111213623.html

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120.) Abuelgasim, Fay, and Joseph Krauss. 2019. “Darfur justice could prove elusive despite al-Bashir’s fall.” The Associated Press. April 22, 2019. Accessed November 2, 2019. https://apnews.com/96234ff1bdd345f38d457f1bc3005fe7

121.) Dahir, Abdi Latif. 2019. “Sudan to Investigate Darfur Atrocities Under Ousted Leader.” The NewYork Times. December 22, 2019. Accessed December 26, 2019. https://www.nytimes.com/2019/12/22/world/africa/sudan-darfur-investigation.html

122.) White, Tom. 2018. “States ‘failing to seize Sudan’s dictator despite genocide charge’.” The Guardian. October 21, 2018. Accessed November 2, 2019. https://www.theguardian.com/global-development/2018/oct/21/omar-bashir-travels-world-despite-war-crime-arrest-warrant

123.) Unknown Author. 2020. “Omar al-Bashir: Sudan agrees ex-president must face ICC.” BBC News. February 11, 2020. Accessed February 13, 2020. https://www.bbc.com/news/world-africa-51462613

124.) Bensouda, Fatou. 2019. “Statement to the United Nations Security Council on the Situation in Darfur, pursuant to UNSCR 1593 (2005).” Office of the Prosecutor, International Criminal Court. December 18, 2019. Accessed December 26, 2019. https://www.icc-cpi.int/Pages/item.aspx?name=2019-12-19-otp-stat-UNSC-sudan

125.) Coalition for the International Criminal Court. n.d. “Sudan.” Accessed February 29, 2020. http://www.coalitionfortheicc.org/country/sudan

126.) Freedom House. n.d. “Freedom in the World 2020: Sudan.” Accessed April 7, 2020. https://freedomhouse.org/country/sudan/freedom-world/2020

127.) Freedom House. n.d. “Freedom in the World 2020: Sudan.” Accessed April 7, 2020. https://freedomhouse.org/country/sudan/freedom-world/2020

128.) Freedom House. n.d. “Freedom in the World 2020: Sudan.” Accessed April 7, 2020. https://freedomhouse.org/country/sudan/freedom-world/2020


Appendix

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