Who Pursues the Perpetrators?State Cooperation with the ICC
Despite the International Criminal Court’s increased prominence in international politics, there remains marked variation in states’ cooperation with the ICC. This article asks why do states cooperate with the ICC following an indictment, arrest warrant or request for information, and how do these patterns of cooperation affect the Court’s ability to constrain state behavior? Using comparative case studies from Kenya, Côte d’Ivoire, and Libya, we suggest that states’ cooperation with the ICC is a function of domestic political calculations, tempered by states’ international partners and ambitions and the ICC’s own learning process.
In the decade since its founding, the International Criminal Court (ICC) has initiated legal proceedings in twenty-one cases across eight situations, or human rights crises, and built a membership of 123 states. Despite early growing pains and persistent critiques of its work, the Court has established itself as an integral part of contemporary international criminal law. Yet the [End Page 162] ICC, like many international human rights tribunals and treaties, has weak enforcement powers. It lacks any real authority to enforce its arrest warrants or requests for information and has no police force or military to capture suspects. Instead, the ICC depends almost entirely on state cooperation in order to bring suspected perpetrators to justice.
States vary considerably in whether and how much they cooperate with the ICC. Some states, like the Central African Republic and Uganda, have sought the ICC’s help in bringing perpetrators to justice. Others, like Sudan, have issued blanket rejections of the Court’s authority, while still others, like Libya and Kenya, have erected pseudo-legal hurdles to cooperation and the extent of their cooperation has varied over time. Yet other states, like Côte d’Ivoire, have cooperated on some cases but not others. What explains the varying degrees of state cooperation with the ICC?
Building on the growing literature on compliance and cooperation with international human rights and criminal tribunals, we suggest that states’ cooperation with the ICC is contingent on the ability of incumbents to use cooperation for their domestic political gain. In particular, we identify two conditions under which cooperation is likely: first, when incumbents use the Court to constrain and remove domestic opposition in a process we call the “international legal lasso,” and, second, when incumbents are able to dictate the timing and sequencing of ICC investigations such that they minimize risk of accountability themselves. Further, we suggest that pressure by international donors and concerns about international reputation can nudge a state toward cooperation but that these influences are unlikely to trump an incumbent’s domestic political interests.
Our empirical analysis bears out these propositions. In general, state incumbents, meaning individual political elites who hold office at the time of their interactions with the ICC, cooperate most completely when the targets of investigation and indictment are their political or military opponents. In these cases, the state uses the ICC as an international legal lasso. By the same logic, state incumbents reject the Court’s authority most completely when members of a ruling coalition are the targets of the ICC. In these cases, the legal lasso falls short because the ICC cannot carry easily its writ into the domestic affairs of the state. By implication, cooperation typically tracks the ways in which cases get to the ICC in the first place, with cooperation more likely in cases of self-referral than in those in which the ICC’s chief prosecutor or the United Nations Security Council (UNSC) initiate the investigations and trials. Indeed, the term “self-referral” might be a misnomer, as these cases often act as “opposition-referrals,” with incumbents triggering the use of the ICC as a way to remove or undermine their domestic political adversaries. There are some variations to this pattern, of course, in particular in cases in which both cooperation and outright rejection of the Court each entail significant costs for political incumbents. In such situations, states [End Page 163] try to manage the dual risks of accountability and the loss of international and domestic political capital by engaging in what we call qualified or pro forma cooperation.
In explaining these patterns of cooperation, our research makes three main contributions to the international relations and human rights literatures. First, by focusing on the mechanisms of cooperation, particularly the international legal lasso, this article unpacks the conditions under which political elites are willing to risk international scrutiny and prosecution at an international tribunal. Our research also illustrates how these conditions change, affecting cooperation in the process. By focusing on the process of cooperation, our research moves beyond correlational studies between domestic politics and cooperation with international courts and demonstrates how particular domestic political configurations facilitate or thwart cooperation.
Second, and relatedly, our work considers the iterative and highly strategic interactions between the ICC and states. Both the ICC and domestic political elites are strategic actors with their own interests and preferences. When states are willing to cooperate on specific cases, it is likely that the interests of the state incumbents align with the Courts on those cases. However, political elites, who are willing to work with the ICC when they see an opportunity to advance their domestic political goals, can also be hesitant to cooperate with the Court when doing so increases their own risk of prosecution. Indeed, domestic elites sometimes find themselves with interests that directly collide with those of the ICC, in which case cooperation is unlikely.
In recent years, the ICC has been more mindful of how its interests intersect with those of domestic political elites. Indeed, the ICC has good reason to be cautious and strategic in its interactions with states. Some African leaders have argued that the Court is biased against Africa and point to the fact that all of the ICC’s cases come from Africa as indicative of the Court’s bias against them. The tension between the African Union (AU) and the ICC reached a crescendo in 2013 and 2014, when AU states met to discuss a mass withdrawal from the Rome Statute and began drafting plans for a new, multi-chamber African Court of Justice and Human Rights that would include a criminal court chamber and circumvent the ICC. With its legitimacy and authority questioned, the ICC is careful to protect its remit. These concerns affect the ways in which the ICC interacts with states, influencing in particular how much the court is willing to push and shame a state that withholds cooperation.
Third, our research begins to answer a pressing question about the ICC: does it have any deterrent power? One of the central aims of the ICC is to punish perpetrators of atrocity crimes in order to deter future atrocities. The underlying assumption is that would-be perpetrators would refrain from committing atrocities if they feared international prosecution for such acts. [End Page 164] In practice, however, deterrence behavior is difficult to observe and even more difficult to identify causally. In order for the ICC to have a deterrent effect, however, it would need to be able to garner cooperation even from the most powerful suspected perpetrators. If state cooperation with the ICC is voluntary and inconsistent, then any possible deterrent effect becomes muted. Overall, our research points us in this direction: incumbents have significant latitude with respect to cooperating with the ICC, choosing to cooperate when doing so aligns with their domestic political interests, and vice versa. The Court itself cannot directly induce cooperation and, given growing opposition from African countries and other concerns, it operates in a cautious fashion, apparently unwilling to condemn noncooperation too loudly. At the same time, we find that domestic civil society, a state’s regional aspirations, and a state’s international allies can create conditions under which noncooperation is quite costly. The high price of noncooperation in these instances closes the room for state maneuvering, suggesting in turn there is some deterrent effect by the ICC.
The remainder of the article explores these claims and proceeds as follows. The next section outlines the importance of state cooperation for the ICC. The following section builds on the existing approaches to understanding cooperation with international human rights and criminal tribunals and outlines three main drivers of cooperation with the ICC. The next section considers the role of the ICC as a negotiating partner. The fourth section develops a rubric for assessing cooperation with the ICC and provides an empirical analysis of the dynamics of state cooperation for each of the ongoing ICC situations. The fifth section explores in greater depth the two main cases, Côte d’Ivoire and Kenya, and provides a brief analysis of the role of the ICC in Libya. Finally, the article concludes with a discussion of the implications of our analysis and areas for future research, including the implications of our findings for the deterrent effects of the ICC.
II. THE ICC AND STATE COOPERATION
Established in 2001, the ICC is an international court of last resort designed to try the perpetrators of the worst crimes—genocide, crimes against humanity and war crimes.1 There are three ways in which cases can get to [End Page 165] the ICC: self-referrals, Security Council referrals, and the ICC Prosecutor’s propio motu powers. Self-referrals entail member states asking the ICC to investigate situations in which war crimes, crimes against humanity, and genocide might have occurred. Through the self-referral process, states cede the authority for the investigation of these crimes to the ICC. Self-referrals have thus far represented the majority of the ICC’s workload, including the situations in the Central African Republic, the Democratic Republic of the Congo, Mali, and Uganda. The second mechanism, UNSC referral, takes place under Article 13 of the Rome Statute. The UNSC can ask the Office of the Prosecutor (OTP) to open an investigation in situations in which the Security Council believes that atrocity crimes have taken place and pose a threat to world peace. Thus far, these referrals have been limited to Libya and Sudan. As David Bosco notes, UNSC referrals are most likely to happen when the state in question does not have a clear patron among the P-5.2 Finally and most controversially, situations can be referred to the ICC via the Prosecutor’s propio motu powers. According to Article 15 of the Rome Statute, when the Prosecutor believes that atrocity crimes have taken place within the territory of a member state and are unlikely to be prosecuted domestically, he or she can open investigations into the alleged crimes. The OTP has exercised these powers in Kenya and Côte d’Ivoire, two of the cases we explore in more depth below.
Although the scope of the ICC’s jurisdiction is clearly outlined in the Rome Statute, the execution of that jurisdiction is far less clear. In particular, state cooperation is fundamental to the success of the Court. While broad membership in the Rome Statute is, of course, necessary for the Court to work and survive, it is the beginning, not the end, of the story. Once states are party to the Rome Statute and have accepted the jurisdiction of the ICC, they are regularly called upon to perform a number of tasks, from helping arrest and turn over suspected perpetrators to providing access to victims and witnesses and establishing field offices. The daily operation and the overall success of the Court are contingent upon states’ cooperation on these matters.3 [End Page 166]
III. DOMESTIC POLITICS, INTERNATIONAL AMBITIONS, AND THE UNCERTAINTY OF COOPERATION
Given the importance of states’ cooperation for the daily operation of the ICC, scholars and practitioners alike must understand the conditions under which states are likely to cooperate with the Court—or not. In this section, we advance a theoretical framework for cooperation with the ICC based on the fundamental idea that political elites’ cooperation with the ICC is predicated on their ability to balance the risk of being prosecuted themselves with their willingness to use cooperation to advance their own political agenda. Cooperating with the ICC can be a great asset for state incumbents to remove or undermine their domestic opposition and to advance their international reputation. Moreover, cooperating with the Court can signal a commitment to human rights and the rule of law that can, in turn, serve as a bargaining chip in trade deals and other multilateral or international negotiations.4 But cooperation can also bring great risk, most notably in the form of an indictment. Cooperation can also alienate some domestic constituencies who are opposed to the Court or who view it as a tool of Western neocolonialism. Furthermore, the changing nature of the ICC itself complicates any cost-benefit analysis that elites might undertake. The relative incipience of the ICC and the fact that the ICC’s caseload has been so small means that political elites do not have many prior examples of adjudication on which to base their expectations of future ICC action.
It is important to note that each of the three factors we identify as important for explaining cooperation with the ICC are rooted in domestic politics. We begin from the premise that cooperation with the ICC is shaped less by the ICC’s ability to constrain state behavior than the states’ internal political constraints and ambitions. This assumption stems from recent research on compliance and cooperation with international courts, which posits that these international institutions do not necessarily constrain or even screen out noncompliant states, but instead initiate a set of domestic actions that can lead to cooperation and compliance.5 [End Page 167]
The international relations literature has long recognized that domestic mechanisms fill the enforcement gap left by international human rights regimes, including international criminal regimes.6 The literature on compliance with international human rights courts reasserts the role of domestic political actors and institutions in promoting compliance and cooperation.7 As Hillebrecht’s research on the European and Inter-American regional human rights courts suggests, procompliance coalitions comprised of domestic actors, including the executive, judiciary, and legislature are critical for compliance with these tribunals’ rulings. Moreover, these tribunals offer clear incentives for domestic actors, executives above all, to comply. These incentives include providing opportunities to signal to domestic and international audiences a commitment to human rights, providing political cover for potentially divisive human rights policy change, and upholding longstanding traditions of promoting human rights and the rule of law.8 More generally, international human rights law and international human rights and criminal tribunals’ rulings can empower domestic courts,9 help executives and legislators set the domestic agenda,10 and mobilize civil society organizations.11 In turn, domestic actors actively use—and occasionally usurp—cooperation and compliance with these tribunals to advance their domestic political interests. [End Page 168]
A. The International Legal Lasso
One way that domestic political elites use the process of cooperation with the ICC to advance their domestic political interests is through a mechanism that we call the “international legal lasso.” Incumbent cooperation is most likely to occur when neither the incumbents nor their political allies are the defendants and when cooperating with the Court introduces the possibility of removing a political foe. For state incumbents, a successful prosecution serves as a political windfall, one in which the state appears to be cooperating with international justice institutions, thereby earning reputation benefits, and removes and delegitimizes an immediate and likely persistent threat. In this way, cooperation with the ICC serves as a domestic political lever that state incumbents harness to consolidate their authority. While this might be a naked grab for power, it is nonetheless cloaked in the discourse of international legitimacy.
We propose to think of this process as an international legal lasso by which domestic elites rope in other political actors through cooperation with the ICC. Figure 1, below, depicts this relationship.
It also follows from this logic that states would be more likely to cooperate with the ICC when the suspects come from outside of the ruling coalition. As Tom Ginsburg argues, ratification of the Rome Statute is a way for states to signal their commitment to prosecute their opponents, although, as he says, ratification is not equally a commitment to be prosecuted.12 When facing the threat of prosecution themselves, incumbents are unlikely to cooperate with the ICC, but they might very well reach out to the ICC when cooperating with the Court would remove powerful spoilers from the domestic political arena.
Thus, we arrive at two straightforward hypotheses:
H1: States are more likely to cooperate with the ICC when the indictees come from the opposition to the ruling coalition.
H2: States are less likely to cooperate with the ICC when the indictees are in or are allied with the ruling coalition.
B. The Downstream Threat of Accountability
Even for those states most intent on using the international legal lasso, cooperation with the ICC does not come without costs or risks. In many conflict environments, atrocities are double sided. The violence is committed [End Page 169] as part of a political struggle for power, and in most situations under the ICC’s watch, neither the state incumbents nor the opposition emerged from the preceding conflict with clean hands. This implies that even the most cooperative ruling elites could later find themselves under investigation at the ICC for the violence that they committed during the preceding (or even ongoing) conflict. We can consider this a downstream threat of accountability.
Cooperation heightens the risk of future accountability for a number of reasons. First, by allowing the ICC to set up a field office, conduct investigations, and get testimony from witnesses and victims, ruling elites run the risk that the ICC will unearth details of their complicity in genocide, war crimes, and crimes against humanity. Second, the precedent of cooperation with the ICC raises expectations about accountability among domestic and international audiences. These expectations can later be turned against the ruling elite if the ICC comes knocking. This risk is particularly heightened when criminal courts make a point of avoiding perceptions of one sided or victors’ justice.
An observable implication of this argument is that state leaders will be more likely to cooperate if they can successfully persuade ICC prosecutors to sequence their investigations and indictments such that the OTP first indicts members of the opposition.13 Given the slowness and vagaries of international justice, putting members of the opposition on trial first buys ruling elites years of immunity. Thus:
H3: In the case of two-sided violence, states are more likely to cooperate with the ICC if they can negotiate with the ICC to investigate and indict the opposition first. [End Page 170]
C. Potential Costs of Noncooperation
In addition to their immediate concerns over domestic politics and the threat of individual indictment, political elites must also consider their state’s international and regional ambitions and integration. Despite its challenges, the ICC has become a flagship institution of the international human rights infrastructure, and cooperating with the ICC is a signal of states’ commitments to human rights and the rule of law.14
IOs and powerful NGOs can serve as gatekeepers to the most influential states and hem in other states’ regional or international aspirations.15 For small and medium power states to increase their stature and influence, whether that means economically, militarily, or socioculturally, they need to play by certain international norms and expectations. This is particularly true for those states that are dependent on foreign aid, foreign direct investment, and international trade, including those that are under ICC investigation.16 Thus, noncooperation with the ICC also carries some substantial potential costs. Many of the states facing ICC investigations are low income states that depend on donors for budgetary, development, and military assistance. When noncooperation would harm their international reputation, especially with donors, states face potential reputational costs. The specific claim is that:
H4: The more donor-dependent and/or more internationally-integrated a state, the more likely it is to cooperate with the ICC.
IV. THE ICC AS NEGOTIATING PARTNER
While our emphasis is on states’ strategic behavior, the ICC also has incentives and interests, which in turn shape the dynamics of cooperation. The ICC is not an apolitical actor. The Court must navigate the political landscape of the countries with which it is working as well as the overall international environment. More than a decade into its existence, the Court’s political position is especially salient because it faces resistance from a range of actors: from the AU and African states who are troubled by the fact that the Court’s current cases all stem from the region; from the United States, [End Page 171] which has adopted a more supportive stance toward the Court under the Obama administration but still cannot fund any of the Court’s work, creating resentment among Rome Statute member states; and from the Court’s main principals in the Western Europe and Other Group (WEOG) who are unhappy about the ICC’s high price tag and the perceived incompetence of the judicial and prosecutorial teams.
In interviews, Court officials have shown themselves to be keenly aware of these problems and have been very proactive over the past few years in trying to change their public perception. Combating the so called “Africa Problem” has been central to these efforts.17 We hypothesize that the Court’s public perception problem means that the ICC is eager to collect a few “wins.” In particular, the Court is looking to assuage critics by showing that some Africans support the Court and by demonstrating that the Court can put together a set of well constructed and argued cases as well as trials that are competently run and free of evidence tampering and witness badgering—all problems that the Court has had.
Court officials would reject this claim, maintaining that the ICC only pursues cases according to the three mechanisms outlined in the introduction above. However, we suggest that Court officials are now more likely to pursue cases in which they can expect state cooperation. That is, facing extensive criticism, Court officials have a strong incentive to secure finished cases rather than open confrontations with states, thereby risking existing cases or engendering more paralysis. The Court’s desire to restore and buttress its legitimacy and mount successful cases intersects with state incumbents’ incentives to gain the benefits of cooperation while minimizing the risk of prosecution. The result is an intricate set of interactions that complicates the cooperation process.
V. METHODOLOGICAL APPROACH AND EMPIRICAL ANALYSIS
To explore the dynamics of state cooperation outlined above, we investigate state cooperation empirically. We do this in two ways. First, we develop a typology of cooperation and use this rubric to analyze the level of cooperation in each case. This allows us to consider cooperation in a comparative context. Second, we look at three case studies: Côte d’Ivoire, Kenya, and Libya, which illustrate nuanced patterns of cooperation. By focusing on [End Page 172] these three case studies, we are able to highlight the causal processes that not only drive states’ overall cooperation but that also dictate changes in states’ ability and willingness to cooperate with the ICC. These cases are not meant to be representative of all ICC situations. Instead, they are illustrative of those cases in which both the state and the ICC test the limits of international law to constrain state actors and the ability of states to constrain the very institution designed to hold them accountable. That said, while all of the cases discussed originate from Africa, the dynamics of elite behavior are generalizable beyond the region. Moreover, the focus on Africa in this article mirrors the Court’s caseload, which is comprised entirely of African cases.18
A. EVALUATING COOPERATION
Cooperation with the ICC is a relatively nuanced phenomenon with states very rarely cooperating with all of the Court’s requests.19 In order to make sense of the many discrete requests the ICC makes of states, we identify cooperation as pertaining to one of three categories: procedural and evidentiary; jurisdictional; and practical cooperation with indictments and arrests. The first, procedural and evidentiary, means that states provide the Court with the information it requires, allows access to victims, facilitates and protects ICC personnel conducting field visits, and generally follows the orders and timeframe set by the Court. The second type of cooperation is jurisdictional. This entails accepting the jurisdiction of the Court and not starting or continuing domestic trials with the goal of circumventing the ICC’s authority. The third type of cooperation is practical cooperation with indictments and arrests. This means issuing arrest warrants and carrying out arrests when a suspect’s location is known and/or allowing INTERPOL or other relevant agencies to carry out these tasks.20 Table A1 in the appendix provides more detailed information on these categories.
Cooperation is necessarily multi dimensional, as the Court often asks states to engage simultaneously in procedural, jurisdictional, and practical [End Page 173] activities. As with compliance with international human rights tribunals, states rarely cooperate or comply with each and every one of the Court’s demands. Similarly, complete failure to cooperate is also a rarity.21 Table 1, below, provides basic information about the eight situations under open investigation and provides summary analyses of states’ cooperation in each of these situations.
In order to explain why states vary in their cooperation with the ICC, we must have a consistent way of evaluating cooperation across the different cases and over time. To do this, we identify a spectrum of cooperation comprised of four main categories. On one end of the spectrum we refer to “full” cooperation, meaning that the state fulfills the vast majority of the ICC’s requests, whether they are procedural, jurisdictional, or practical. Toward the middle of the spectrum are “qualified” and “pro forma” cooperation. Qualified cooperation indicates that the state cooperates up until a certain point but has a set of nonnegotiable issues on which it will not yield. Often these are of a practical or jurisdictional nature. Pro forma cooperation indicates that the state does the minimum to approximate cooperation and poses technical challenges to cooperation. States exhibiting pro forma cooperation couch their behavior within the language and processes of the Court, often using legal technicalities to limit their cooperation. They typically cooperate on procedural matters but seek to block the Court from exercising full jurisdictional authority. Finally, at the other end of the spectrum, we have “noncooperation,” or rejection, meaning that the state opts against cooperation and outwardly contests the ICC’s work.
The boundaries of each type of cooperation—full cooperation, qualified cooperation, pro forma cooperation, and noncooperation—are fuzzy. States’ actions do not necessarily fit neatly within each of these categories, and given that states regularly engage in à la carte compliance, it is important not to set rigid boundaries between different compliance or cooperation levels.22 With this in mind, this spectrum provides us with both an empirical description of states’ behavior toward the ICC as well as an evaluation schema that we can use across the various situations, cases, and states.23 [End Page 174]
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Table 2 places each of the eight situations on this spectrum of cooperation. Below, we explain how we arrived at our ranking for each of the cases and discuss how these cases conform to the hypotheses we outline above. We then turn to more in depth case studies of Côte d’Ivoire, Kenya, and Libya to examine those cases that fall into the qualified/pro forma categories.
Of the ongoing ICC situations, five of them—the Central African Republic, the Democratic Republic of the Congo, Mali, Sudan, and Uganda—clearly support our first two hypotheses. In the Central African Republic, for example, the former president, François Bozizé, used the ICC to physically remove a political foe: Jean-Pierre Bemba of the Democratic Republic of the Congo. He used the court as an international legal lasso. A weak domestic political landscape with few mechanisms for accountability reduced concerns that [End Page 176] Bozizé himself would ultimately be turned over to the ICC, while cooperation provided a modicum of legitimacy for Bozizé’s government. Similarly, in Mali, the government has cooperated with the ICC’s efforts to try Ahmad Al Faqi Al Mahdi, who is accused of destroying a set of cultural sites in Timbuktu in 2012, as part of their broader efforts to regain control over the north of the country.24
In the Democratic Republic of the Congo, President Joseph Kabila made a state referral to the ICC in 2004, asking the OTP to investigate the possible war crimes and crimes against humanity that took place in the Congo from 2002 and onward.25 Presiding over a very fragile peace and the persistent threat of conflict, particularly in the eastern part of the country, Kabila and his interim government wanted to keep potential spoilers and major opposition parties from the country.26
The outcome has been quite different in Sudan, but it is still in keeping with our main theoretical proposition. Already an international pariah state, Sudan’s Omar al-Bashir has rejected the ICC’s authority and has unsurprisingly refused to cooperate with the ICC, especially on its indictment of al-Bashir and his Minster of National Defense. The state has little incentive to cooperate given that the main target is that of the sitting president and cooperating with the ICC is unlikely to significantly alter the state’s international reputation or standing.
Uganda exhibits what we referred to above as qualified cooperation. In referring the situation to the ICC in 2003, the state’s interest laid in removing and undermining a persistent armed opposition group, the Lord’s Resistance Army. The incumbent used the legal lasso, assigning an international court a task that the state’s military forces had not been able to handle. The state also reaped international reputational benefits for endorsing a then-fledgling international human rights body. The ICC also benefited in that it received tacit endorsement from an influential African state, while also opening an investigation into one of the most notorious armed actors on the continent. Furthermore, the ICC acted first, and seemingly exclusively, against the opponents of the ruling authorities.27 [End Page 177]
After the ICC took up the situation and issued five separate arrest warrants, Uganda began to back away from cooperation. This is for a number of reasons that are consistent with our theoretical framework above. On the one hand, the referral was largely ineffective. The four who were indicted remained at large for many years after the indictment, with one suspect turning himself in to the ICC in January 2015. On the other hand, the referral proved politically costly at home. It became something of a lightning rod of criticism against Yoweri Museveni’s government. Museveni’s critics lambasted the government for its failure to manage the rebellion and for committing atrocities in the north of the country. Even if the ICC seemed disinclined to pursue an indictment against someone within the ruling coalition or within the Ugandan People’s Defense Forces, the Museveni government faced some costs for his cooperation with the Court and the possible specter of an indictment against someone in his coalition, prompting him to back away and eventually disavow it. Museveni’s actions conform to our third hypothesis, which predicts early cooperation when an incumbent can sequence possible arrest warrants but limited cooperation when incumbents are less able to control the timing and ordering of the indictments and investigations.
These five cases fit neatly within the expectations outlined in our hypotheses. The cases of Côte d’Ivoire, Kenya, and Libya, however, showcase the complex ways in which state cooperation, particularly qualified and pro forma cooperation, can vary over time and based on strategic interactions with the ICC.
B. Côte d’Ivoire
The ICC situation arose in Côte d’Ivoire following a contested election in late 2010. The then incumbent, Laurent Gbagbo, refused to cede power after losing the second round of elections to Alassane Ouattara. International and regional organizations strongly sided with Ouattara while forces loyal to Gbagbo committed, in some cases significant, human rights crimes against Ouattara’s supporters. In the end, Ouattara teamed up with former rebels who advanced against government forces. With eventual support from the United Nations and French military forces, pro-Ouattara forces seized control of the state and arrested Gbagbo, his wife, and other key officials. Along the way, however, pro-Ouattara forces also committed atrocities against civilians associated with Gbagbo. After the war ended, forces loyal to Gbagbo decamped to neighboring states, principally Ghana, from whence they launched military incursions.
Côte d’Ivoire initially exercised full cooperation with the ICC but subsequently objected to the Court’s jurisdiction. We label their cooperation as qualified cooperation. Shortly after coming to power, the Ouattara government [End Page 178] and the ICC discussed investigating the post election crisis in The Hague and the OTP opened the investigations via its propio motu powers. The Court in turn investigated and issued an indictment for Gbagbo, the most high-profile suspect. Côte d’Ivoire proceeded to hand over Gbagbo to the ICC; he is now in custody at the ICC. The Court subsequently issued an indictment against Charles Blé Goudé, the former leader of a militant organization and an ally of Gbagbo. Blé Goudé was subsequently arrested in neighboring Ghana, extradited to Côte d’Ivoire, and later transferred to the ICC. This pattern of state action is consistent with our main hypotheses: Gbagbo and Blé Goudé were the most important political opposition to incumbent Ouattara. The state thus used the international legal lasso, removed and potentially discredited the main opposition, and earned some international accolade for such action.
More puzzling, however, is the state’s response to an ICC indictment against Simone Gbagbo, Gbagbo’s wife, for whom the ICC has also issued an arrest warrant. In this instance, to date, the Ivoirian government has refused to hand over Mrs. Gbagbo, opting instead to try her domestically in two separate trials. Mrs. Gbagbo stood trial in March 2015 and was later sentenced to twenty years in prison for her involvement in the post electoral violence. As of this writing, her second trial is ongoing. What explains this trajectory? One answer is that Mrs. Gbagbo is less of a political threat than Gbagbo and Blé Goudé, each of whom is a public political figure with diehard followers. That is less the case for Mrs. Gbagbo, who was more of a behind-the-scenes power player during her husband’s administration. But we suspect that the real reason is that the Ouattara regime is maneuvering to shelter members of the ruling coalition from an eventual ICC indictment.
As noted, atrocities were committed on both sides during the Ivoirian post electoral violence. Within Côte d’Ivoire, the Ouattara regime has been facing a phalanx of criticism from international human rights organizations, donor states, and domestic civil society to avoid one sided justice. Thus, looking downstream, the Ouattara government likely worries that the ICC will issue an indictment against key actors within his own fragile ruling coalition, in particular against military forces that are central to his survival. The democratic institutions are strong enough in Côte d’Ivoire, where there is an active opposition press, domestic and international human rights organizations, and a relatively well trained judiciary, that the Ouattara government understands that refusing cooperation would be politically costly. Thus, rather than having to reject the Court straightforwardly and possibly jeopardizing the most important trial (of Gbagbo) the Ouattara government is positioning itself to try cases domestically so as to shelter or selectively prosecute, if need be, members of its own coalition.
The Côte d’Ivoire case, however, raises the question of why the ICC does not issue more indictments. While Gbagbo was primarily responsible for triggering [End Page 179] the post electoral crisis when he refused to step down, the atrocities committed on both sides were similar in scale. The largest single massacre and crime against humanity in the 2010 to 2011 period was committed by pro-Ouattara forces against pro-Gbagbo supporters in and around the town of Duékoué. Pro-Ouattara forces also committed significant violations of human rights against pro-Gbagbo civilians after Gbagbo was ousted. Why then has the ICC only indicted three members from the former ruling coalitions but none from the current ruling coalition?
Our answer concerns the ways in which the ICC is acting strategically. As noted, the ICC faces significant international opposition and criticism, especially from among African states. It is fair to characterize the ICC as being on the defensive, and ICC administrators are looking for a win to help reestablish the legitimacy of the Court. The Gbagbo case, especially, as well as the Blé Goudé case, are important to the success of the Court, and thus the Court has exercised caution in indicting someone from the Ouattara coalition for fear that such a move would jeopardize future state cooperation. The ICC may one day issue an arrest warrant against a defendant from the Ouattara coalition and Fatou Bensouda has committed to investigating both sides of the violence, but such an event is unlikely to take place before the Gbagbo trial is complete.28
All told, the Côte d’Ivoire case is consistent with the theoretical expectations outlined in this article. The state incumbent is exercising enough cooperation to lasso the administration’s principal domestic opposition, using the court to remove and undermine the most significant political opponent. However, the administration faces a downstream risk of accountability, which it is managing through a sequencing of cooperation with full cooperation on some cases but noncooperation on others. Rather than exposing this contradiction and forcing the Ivoirian state to cooperate fully, the court, mindful of its regional and international position, is exercising strategic caution.
Kenya’s cooperation with the ICC is best characterized as pro forma, meaning that Kenya generally stayed within the confines of the Rome Statute and played along with the Court’s proceedings while also taking every opportunity to exculpate the indicted. Given that the main cases in Kenya pertained to the country’s current president, Uhuru Muigai Kenyatta, and deputy president, William Samoei Ruto, many Kenyan constituents and legislators oppose the [End Page 180] ICC. The question for Kenya seems to be: why did the government of Kenya not simply walk away from the ICC? Our theoretical expectation would be pro forma cooperation, as the main indictments are against state incumbents but those elites would also face significant costs for noncooperation. More specifically, Kenya has a domestic constituency that accepts the ICC but rejects the specific cases against Kenyatta and Ruto as well as a set of international partners and donors for whom cooperation with the ICC is an important component in determining a state’s international good standing.
As Table 1 indicates, the ICC opened three open cases in the situation in Kenya: The Prosecutor v. William Samoei Ruto and Joshua Arap Sang; The Prosecutor v. Uhuru Muigai Kenyatta; and The Prosecutor v. Walter Osapiri Barasa.29 The two primary cases pertain to the violence that erupted in Kenya in the aftermath of the 2007 elections. At the time, both of the leading candidates, Mwai Kibaki (PNU) and Raila Odinga (ODM) claimed victory, leading some of their political and co-ethnic supporters to violently lash out against the other side.30 The violence left approximately 1,000 dead, 3,500 injured, and 350,000 displaced.31 On 26 November 2009, the OTP formally requested authorization from the ICC’s Pre-Trial Chamber II to open an investigation into the post-election violence.32 Pre-Trial Chamber II formally granted Ocampo’s request to open investigations on 31 March 2010.33
Throughout 2009 and 2010 there was very little sense among the Kenyan leadership that any of their rank would be hauled in front of the judges in The Hague.34 Once it became clear that they had miscalculated, however, the Kenyan government adopted a stance of pro forma cooperation. Their strategy generally included three main components: first, cooperation on a shallow level to all three types of requests discussed above; second, challenging the Court’s decisions on admissibility and the location of the trials within the channels set up by the ICC; and third, using extra judicial means to intimidate witnesses. [End Page 181]
Despite the many reservations the Kenyan government had about the ICC, it generally cooperated with the Court’s requests for appearances, site visits’ and documents. For example, in October 2014, Kenyatta suspended his presidential duties to attend a status conference hearing in The Hague, despite some domestic and regional pressure to ignore the ICC’s request. Moreover, the Kenyatta and Ruto teams consistently used the formal, legal channels established by the Court to lodge their complaints and challenges. For example, the Kenyan government lodged an admissibility challenge, arguing that it would establish a domestic mechanism for accountability under the principle of complementarity.35 The Pre-Trial Chamber rejected the Kenyan government’s application, as did the Appeals Chamber following Kenya’s appeal to the decision. Instead of walking away from the Court, however, Kenya continued to use the ICC’s own framework to challenge the Court on the location of the trials.36 That said, in addition to mounting these formal, legal challenges and cooperating at a basic level with the Court’s requests, the Kenyan government engaged in a widespread process of bribing and intimidating witnesses. These practices led to the withdrawal of the Prosecutor’s case against Francis Kirimi Muthaura37 and, more significantly, to the Court’s recent decisions to vacate both the Kenyatta and Ruto cases.38
Kenya pursued this type of pro forma cooperation because of the confluence of competing demands. Because the indictment was against the state incumbents, Kenyatta and Ruto preferred not to cooperate. Yet, they tempered their noncooperation because of the costs associated with an outright rejection of the Court. Domestically, opinion polling indicates that citizens were opposed to the case against Kenyatta and Ruto but that they also opposed a withdrawal from the Court.39 Further, many of Kenya’s main international partners and aid donors are key supporters of the ICC. [End Page 182] According to the OECD, in the time period between 2010 and 2012, Kenya received nearly 7 billion USD in overseas development assistance. Its top ten donors included the United States, Germany, Japan, the European Union, the United Kingdom, France, and Sweden, as well as the World Bank and International Monetary Fund. In 2012, international aid represented 6.6 percent of Kenya’s gross national income (GNI).40 Notably, Japan, Germany, France, and the United Kingdom also foot a large share of the ICC’s bill.41 Not only were they unlikely to support Kenya’s attempts to derail the very same Court that they fund and support, but they also made it difficult for Kenya to simply walk away from the ICC.
And thus we arrive at this process of pro forma cooperation. Kenya’s immediate interests would suggest noncooperation, but its long-term standing in the international system, as well as the future of its foreign policy and economy depend on cooperating, at least in part, with a Court that poses a clear threat to the survival of its leadership. The Kenyan case also conforms to the notion that the ICC is also engaged in a set of strategic interactions with target states in order to shore up its own legitimacy. The Kenyan policy of pro forma cooperation, particularly the coupling of delaying the cases via formal legal challenges, witness intimidation, and evidence tampering, led to the decision to vacate the Kenyatta and Ruto cases. While it was clear that the OTP did not make this decision lightly, the withdrawal of these cases is consistent with the expectation that ICC currently is invested in pursuing cases in which their probability of success is higher.
As of this writing, we label Libya as demonstrating pro forma cooperation. While he was still alive, Muammar Gaddafi contested the ICC’s authority to investigate him, his son Saif Al-Islam Gaddafi, and Abdulla Al-Senussi, Gaddafi’s Chief of Military Intelligence. In the aftermath of Gaddafi’s death, the prospect of Libya’s cooperation with the ICC improved. Authorities in Libya and Mauritania arrested Al-Senussi and Al-Islam Gaddafi, and the OTP had an ongoing dialogue with the interim government. After their arrests, however, the prospect of cooperation diminished. Despite an incentive to cooperate given that the indictees came from the political opposition, the new authorities chose not to use the international legal lasso. Instead, they [End Page 183] presented a number of highly legalistic challenges to the ICC; a Libyan court eventually tried, convicted, and sentenced Al-Islam Gaddafi to death in July 2015.42
Libya posed a number of challenges to the ICC’s authority, most of which have centered on disputes over the applicability of the Rome Statute, the ICC’s jurisdiction over Al-Islam Gaddafi’s case, and the principle of complementarity. Libya also requested, among other things, a delay in the proceedings. The government also at one point detained ICC staff members conducting investigations in Libya.43
The ICC agreed that, according to the principle of complementarity, Libya could try the case against Al-Senussi, especially after the government took steps to ensure due process in his case.44 Nevertheless, the ICC contended that Al-Islam Gaddafi should have been turned over to the ICC for trial. This was especially true for the Office of Public Counsel for the Defense, who expressed concern about Al-Islam Gaddafi’s safety. In direct opposition to this claim, Libyan authorities moved forward with the trial. The interim government’s message to the ICC was clear: we will play by your legal game, but stay out of our affairs. In fact, Libya’s representative to the ICC said precisely that: “‘No amount of pressure will push Libya’ to surrender Saif Al-Islam or Senussi.”45
At first glance, Libya’s increasingly uncooperative relationship with the ICC challenges our theoretical framework. As a country enduring continued violence and whose future economic and political viability will likely rest on a significant amount of international support, it would seem that the Libyan government would be keen to remove a source of domestic political opposition and curry favor with international donors. Yet, we suggest that it is precisely because of continuing deep instability and political fragmentation in Libya that the interim government cannot and will not cooperate further with the ICC.
The British Broadcasting Corporation estimates that there are 1,700 competing militant factions operating in Libya.46 The government’s writ remains extremely fragile, at best, and even the idea of talking about a coherent government that exercises sovereign control over territory would [End Page 184] be misconstrued. The country has had two parliaments and indeed two governments for some time. In a February 2015 report, the normally cautious International Crisis Group referred to Libya as “chaos” with “virtually no state.”47 In these circumstances, the state incumbents, to the extent one can even speak of state incumbents, lacked sufficient control to move Al-Islam Gaddafi safely to The Hague. Indeed, according to one ICC bureaucrat interviewed in 2014, neither officials in The Hague nor in Libya can figure a way to move Al-Islam Gaddafi safely out of the compound where he had been held, never mind out of the country.
In addition to the ongoing violence, authorities in Libya have to consider the possible risk of downstream accountability. Some current government officials are aligned with armed groups that are complicit in some of the worst human rights violations that occurred during the conflict. This creates the very real threat that the ICC will come after them. While a strong armed dictator such as al-Bashir can control the public sphere enough to mitigate the threat that domestic actors call for his accountability at the ICC, the lack of a clear consolidation of power in Libya means that a rival faction could turn over a rival indicted by the ICC, in part as a way to shore up power. In short, deep insecurity, fragmentation, and multi-sided atrocity create not only practical obstacles but also potential significant costs, which seem to outweigh the benefits of turning over Islam al-Gaddafi to the ICC.
In this article we have suggested that cooperation with the ICC is a function of states’ domestic and international interests. We build on the existing literature on compliance and cooperation with international tribunals to show not only how domestic interests affect state cooperation with international tribunals but also how states’ international aspirations and commitments sometimes run orthogonally to domestic incentives.
The case studies presented above illustrate how these domestic and international factors intersect. In Côte d’Ivoire, for example, the Ouattara government has taken full advantage of the international legal lasso, using it to remove their most dangerous political rivals. This has lead to a policy of cooperation that coincides with the Ouattara administration’s domestic political interests, while also minimizing the potential costs associated with defying the ICC. In Kenya, however, the key suspects are incumbents. While we might expect this to lead to a policy of noncooperation, the Kenyatta [End Page 185] government is keenly aware of the costs of noncooperation, most notably the fact that major trade partners and donors expect Kenya to cooperate with the ICC. Thus, Kenya has pursued a policy of pro forma cooperation. In Libya, in contrast, current security concerns threaten the very viability of the state and the costs of cooperating with ICC, even to use the international legal lasso, far exceed the expected benefits.
The analysis presented in this article suggests three areas deserving of greater research. First, if our contentions are correct, the involvement of the ICC during conflict can shape the incentive structures of those at war. Our research suggests that the ICC poses more of a threat to the losers of conflict than it does to the winners. As we saw in the case of Côte d’Ivoire, and in the brief summary of the cases from the Central African Republic, the Democratic Republic of the Congo, and Uganda, the victors can use the international legal lasso against the losers. Knowing that losing on the battlefield could result in prosecution by the ICC might encourage actors engaged in conflict to hold on longer, or perhaps even fight dirtier, in the hopes that they can win the war.
Our research does not suggest, however, that victors and incumbents can fully escape the reach of the ICC. As the Kenyan case clearly illustrates, even after capturing the state, incumbents can face indictment. The costs of noncooperation with the ICC are not insignificant, and the measures that states must take to engage in even pro forma cooperation require both political and financial capital, that states and political elites would prefer to expend in other ways. Even Ouattara, who has successfully used the legal lasso to remove his biggest challenger, still faces the possibility that a high-ranking member of his team will face prosecution.
This leads to the second implication of our research: the potential deterrent effect of the ICC. Our research does not suggest that the ICC has no deterrent effect, but rather that such an effect is nuanced. Our research indicates that the ICC’s structural relationship with states raises questions about its capacity for deterrence. The deterrent power of the ICC is likely to be most effective if political and military elites believe that they cannot control or manipulate the ICC’s prosecution process. For that expectation to hold, the ICC would have to act in a consistently impartial fashion with regard to all cases. Our research, by contrast, suggests that controlling the state creates constraints on the ICC, thereby blunting the ICC’s power to prosecute state incumbents, a situation about which ICC officials are aware. For nonstate incumbents, however, the threat of ICC prosecution is real. All this leads us to conclude that perhaps the presence of the ICC may deter atrocity crimes when state capture is highly uncertain, which is likely to be the case in many circumstances. [End Page 186]
Third, and finally, we encourage future research to map the various mechanisms through which the ICC affects elite decision making before, during, and after conflict. This might entail the assessments leaders make during conflict about committing atrocity crimes or continuing to fight in the hopes of turning the tides of the conflict, or the social pressure donor states put on receiving states to cooperate with the ICC, or even domestic efforts to adjudicate atrocity crimes at home rather than in The Hague. Our research suggests that the ICC has become a fixture in the international landscape, making understanding cooperation with the court even more important. [End Page 187]
Courtney Hillebrecht is Associate Professor of Political Science at the University of Nebraska-Lincoln. She is the author of Domestic Politics and Human Rights Tribunals: The Problem of Compliance (Cambridge 2014) and co-editor of State Responses to Human Security: At Home and Abroad (Routledge 2013). This research was funded by a Carl J. Schneider Research Grant.
Scott Straus is Professor of Political Science and International Studies at the University of Wisconsin, Madison. His most recent books are: Making and Unmaking Nations: War, Leadership, and Genocide in Modern Africa (Cornell, 2015) and Fundamentals of Genocide and Mass Atrocity Prevention (United States Holocaust Memorial Museum, 2016).
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1. See, e.g., The Reckoning: The Battle for the International Criminal Court (Skylight Pictures 2009), available at http://skylight.is/films/the-reckoning/; International Criminal Court, The ICC at a Glance, available at http://www.europarl.europa.eu/meetdocs/2004_2009/documents/dv/afet_04112008_icc/afet_04112008_iccen.pdf; Sara McLaughlin Mitchell & Emilia Justyna Powell, Domestic Law Goes Global: Legal Traditions and International Courts (2011).
2. David Bosco, Rough Justice: The International Criminal Court in a World of Power Politics (2014). This, then, explains why we do not see the UNSC referring situations like those in Israeli/Palestinian territories and Syria to the ICC. As Palestine’s recent accession into the Rome Statute and Article 12(3) declaration regarding alleged violations in the Palestinian territories show, however, the UNSC’s failure to act does not inherently preclude ICC action.
3. Victor Peskin, International Justice in Rwanda and the Balkans: Virtual Trials and the Struggle for State Cooperation (2008); Victor Peskin, Caution and Confrontation in the International Criminal Court’s Pursuit of Accountability in Uganda and Sudan, 31 Hum. Rts. Q. 655 (2009).
4. Beth A. Simmons & Allison Danner, Credible Commitments and the International Criminal Court, 64 Int’l. Org. 225 (2010); Emilie M. Hafner-Burton, Forced to Be Good: Why Trade Agreements Boost Human Rights (2009).
5. Oona A. Hathaway, Do Human Rights Treaties Make a Difference?, 111 Yale L. J. 1935 (2002); Courtney Hillebrecht, The Domestic Mechanisms of Compliance with International Human Rights Law: Case Studies from the Inter-American Human Rights System, 34 Hum. Rts. Q. 959 (2012); Courtney Hlillebrecht, Domestic Politics and International Human Rights Tribunals: The Problem of Compliance (2014); Yonatan Lupu, Best Evidence: The Role of Information in Domestic Judicial Enforcement of International Human Rights Agreements, 67 Int’l. Org. 469 (2013); James D. Morrow, When Do States Follow the Laws of War?, 101 Am. Pol. Sci. Rev. 559 (2007); James Raymond Vreeland, Political Institutions and Human Rights: Why Dictatorships Enter into the United Nations Convention Against Torture, 62 Int’l. Org. 65 (2008).
6. Emilie M. Hafner-Burton, International Regimes for Human Rights, 15 Annu. Rev. Pol. Sci. 265 (2012); Hillebrecht, Domestic Politics and International Human Rights Tribunals, supra note 5; Beth A. Simmons, Mobilizing for Human Rights: International Law in Domestic Politics (2009).
7. Hillebrecht, The Domestic Mechanisms of Compliance with International Law, supra note 5; Hillebrecht, Domestic Politics and International Human Rights TRibunals, supra note 5; Courtney Hillebrecht, The Power of Human Rights Tribunals: Compliance with the European Court of Human Rights and Domestic Policy Change, 20 Eur. J. Int’l. Rel. 1100 (2014); Courtney Hillebrecht, Implementing International Human Rights Law at Home: Domestic Politics and the European Court of Human Rights, 13 Hum. Rts. Rev. 279 (2012); Alexandra Valeria Huneeus, Compliance with International Court Judgments and Decisions (U. Wis. Legal Studies Research Paper No. 1219, 2013), available at http://papers.ssrn.com/abstract=2198595; Alexandra Huneeus, Courts Resisting Courts: Lessons from the Inter-American Court’s Struggle to Enforce Human Rights, 44 Cornell Int’l. L. J. 493 (2011); Darren Hawkins & Wade Jacoby, Partial Compliance: A Comparison of the European and Inter-American Courts of Human Rights, 6 J. Int’l. L. & Int’l. Rel. 35 (2010).
8. Hillebrecht, Domestic Politics and International Human Rights Tribunals, supra note 5.
9. Huneeus, Compliance with International Court Judgments and Decisions, supra note 7; Lupu, supra note 5; Simmons, supra note 6; Courtenay R. Conrad & Emily Hencken Ritter, Treaties, Tenure, and Torture: The Conflicting Domestic Effects of International Law, 75 J. Pol. 397 (2013); Emilia Justyna Powell & Jeffrey K Staton, Domestic Judicial Institutions and Human Rights Treaty Violation, 53 Int’l. Stud. Q. 149 (2009).
10. Hillebrecht, The Domestic Mechanisms of Compliance with International Law, supra note 5; Hillebrecht, Domestic Politics and International Human Rights Tribunals, supra note 5; Simmons, supra note 6, at 20.
11. Marlies Glasius, The International Criminal Court: A Global Civil Society Achievement (2006); Simmons, supra note 6; Peter van Tuijl, NGOs and Human Rights: Sources of Justice and Democracy, 52 J. Int’l. Aff. 493 (1999); Courtenay Ryals Conrad & Will H. Moore, What Stops the Torture?, 54 Am. J. Pol. Sci. 459 (2010).
12. Tom Ginsburg, The Clash of Commitments at the International Criminal Court, 9 Chi. J. Int’l. L. 499 (2009).
13. Of course, this raises the potential selection concern that the OTP will attempt to indict cases in which cooperation is more likely, although we bracket this selection question for the time being.
14. Judith Kelley, Who Keeps International Commitments and Why? The International Criminal Court and Bilateral Nonsurrender Agreements, 101 Am. Pol. Sci. Rev. 573 (2007); Simmons & Danner, supra note 4.
15. Christopher L. Pallas & Johannes Urpelainen, NGO Monitoring and the Legitimacy of International Cooperation: A Strategic Analysis, 7 Rev. Int’l. Org. 1 (2012).
16. Hafner-burton, supra note 4; David L. Richards, Ronald D. Gelleny & David H. Sacko, Money with a Mean Streak? Foreign Economic Penetration and Government Respect for Human Rights in Developing Countries, 45 Int’l. Stud. Q. 219 (2001); Frederick M. Abbott, Christine Breining-Kaufmann & Thomas Cottier, International Trade and Human Rights: Foundations and Conceptual Issues (2006); Ann Kent, Beyond Compliance: China, International Organizations, and Global Security (2010); Xun Cao, Brian Greenhill & Aseem Prakash, Where Is the Tipping Point? Bilateral Trade and the Diffusion of Human Rights, 43 Brit. J. Pol. Sci. 133 (2013).
17. David Smith, New Chief Prosecutor Defends International Criminal Court, The Guardian, 23 May 2012, available at http://www.theguardian.com/law/2012/may/23/chief-prosecutor-international-criminal-court; Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, Twelfth Session, The Hague, 20–28 Nov. 2013, (ICC-ASP/12/20), available at https://asp.icc-cpi.int/iccdocs/asp_docs/ASP12/OR/ICC-ASP-12-20-ENG-OR-vol-I.pdf.
18. The situations under preliminary examination are more geographically diverse.
19. Courtney Hillebrecht, Rethinking Compliance: The Challenges and Prospects of Measuring Compliance with International Human Rights Tribunals, 1 J. Hum. Rts. Prac. 362 (2009); Hillebrecht, The Power of Human Rights Tribunals, supra note 7; Hillebrecht, Domestic Politics and International Human Rights Tribunals, supra note 5. It is important to differentiate here between compliance and cooperation. The common usage of compliance in international relations theory has come to mean the alignment of state behavior with the specific mandates outlined in international treaties. While we could technically say that states comply with the ICC when they provide access to witnesses or follow through with indictments, that strict definition belies the bureaucratic and political decision-making that is inherent in each of these smaller examples of cooperation.
20. Hillebrecht, Domestic Politics and International Human Rights Tribunals, supra note 5; Hillebrecht, Rethinking Compliance, supra note 19.
21. Hillebrecht, Domestic Politics and International Human Rights Tribunals, supra note 5; Hawkins & Jacoby, supra note 7.
22. Hillebrecht, Rethinking Compliance, supra note 19; Hillebrecht, Domestic Politics and International Human Rights Tribunals, supra note 5.
23. For more on measuring compliance and cooperation see: Hawkins & Jacoby, supra note 7; Pierre Hazan, Measuring the Impact of Punishment and Forgiveness: A Framework for Evaluating Transitional Justice, 88 Int’l. Rev. Red Cross 19 (2006); Hillebrecht, Domestic Politics and International Human Rights Tribunals, supra note 5; Hillebrecht, Implementing International Human Rights Law at Home, supra note 7; Hillebrecht, Rethinking Compliance, supra note 19; AnnJanette Rosga & Margaret L. Satterthwaite, The Trust in Indicators: Measuring Human Rights, (N.Y.U. Pub. Law & Legal Theory Working Paper No. 91, 2008), available at http://lsr.nellco.org/nyu_plltwp/91; Helen Watchirs, Review of Methodologies Measuring Human Rights Implementation, 30 J. L. Med. & Ethics 716 (2002).
24. Coalition for the ICC, The ICC’s Role in Prosecuting and Deterring War Crime Attacks on Cultural Heritage, Global Justice, 10 Aug. 2016, available at https://ciccglobaljustice.wordpress.com/2016/08/10/the-importance-of-protecting-cultural-heritage-and-the-iccs-role-in-prosecuting-and-deterring-the-war-crime-of-attacks-on-cultural-heritage/.
25. International Criminal Court, Situation in Democratic Republic of the Congo, ICC-01/04, available at http://www.icc-cpi.int/en_menus/icc/situations%20and%20cases/situations/situation%20icc%200104/Pages/situation%20index.aspx.
26. Thijs B. Bouwknegt, How Did the DRC Become the ICC’s Pandora’s Box?, African Arguments, 5 Mar. 2014, available at http://africanarguments.org/2014/03/05/how-did-the-drc-become-the-iccs-pandoras-box-by-thijs-b-bouwknegt/.
27. Sarah M. H. Nouwen & Wouter G. Werner, Doing Justice to the Political: The International Criminal Court in Uganda and Sudan, 21 Eur. J. Int’l. L. 941 (2010).
28. Tom Miles, ICC Prosecutor Vows to Investigate Both Sides in Ivory Coast, Business Insider, 3 June 2016, available at http://www.businessinsider.com/r-icc-prosecutor-vows-to-investigate-both-sides-in-ivory-coast-2016-6.
29. This last case pertains to allegations that the defendant attempted to corrupt three witnesses in the other two cases.
30. Thomas Obel Hansen, The International Criminal Court in Kenya: Three Defining Features of a Contested Accountability Process and Their Implications for the Future of International Justice, 18 Austl. J. Hlum. Rts 187 (2012); International Coalition for the Responsibility to Protect, The Crisis in Kenya, available at http://www.responsibilitytoprotect.org/index.php/crises/crisis-in-kenya; Ben Rawlence & Chris Albin-Lackey, Human Rights Watch, Ballots to Bullets: Organized Political Violence and Kenya’s Crisis of Governance (2008), available at http://www.hrw.org/sites/default/files/reports/kenya0308web.pdf.
31. Situation in the Republic of Kenya, Case No. ICC-01/09, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya (31 Mar. 2010) [hereinafter Situation in the Republic of Kenya].
32. Id. at 4.
33. Id. at 83.
34. Susanne D. Mueller, Kenya and the International Criminal Court (ICC): Politics, the Election and the Law, 8 J. East. Afr. Stud. 25 (2014).
35. Situation in the Republic of Kenya, supra note 32.
36. Prosecutor v. William Sameoi Ruto and Joshua Arap Sang, Case No. ICC-01/09-01/11, Decision on Mr. Ruto’s Request for Excusal from Continuous Presence at Trial (18 June 2013), available at http://www.icc-cpi.int/iccdocs/doc/doc1605793.pdf.
37. Prosecutor v. Francis Kirimi Muthaura and Uhuru Muigai Kenyatta, Case No. ICC-01/09-02/11, Prosecution Notification of Withdrawal of the Charges Against Francis Kirimi Muthaura (11 Mar. 2013), available at https://www.icc-cpi.int/pages/record.aspx?uri=1565549.
38. International Criminal Court, Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, on the Status of the Government of Kenya’s Cooperation with the Prosecution’s Investigations in the Kenyatta Case, (2014), available at https://www.icc-cpi.int/Pages/item.aspx?name=otp-stat-04-12-2014; Press Release, International Criminal Court, Ruto and Sang Case: ICC Trial Chamber V(A) Terminates the Case Without Prejudice to Re-Prosecution in Future (5 Apr. 2016), available at https://www.icc-cpi.int/Pages/item.aspx?name=PR1205.
39. Rorisang Lekalake & Stephen Buchanan-Clarke, Support for the International Criminal Court in Africa: Evidence from Kenya (Afrobarometer Pol’y Paper No. 23, 2015), available at http://afrobarometer.org/sites/default/files/publications/Policy%20papers/ab_r6_policy-paperno23_kenya_anti_corruption.pdf.
40. OECD: Kenya (KEN) Profile of Exports, Imports and Trade Partners, available at http://atlas.media.mit.edu/profile/country/ken/; World Bank, Net ODA Received (% of GNI) (2014), available at http://data.worldbank.org/indicator/DT.ODA.ODAT.GN.ZS.
43. Libya: ICC Staff Detentions Raise Justice Concerns, Incident Undermines Lawyers’ Independence, Human Rights Watch, 3 July 2012, available at https://www.hrw.org/news/2012/07/03/libya-icc-staff-detentions-raise-justice-concerns.
44. Libya: A Rebuff to the ICC: Authorities Fail to Surrender Gaddafi’s Son to ICC, Despite Ruling, Human Rights Watch, 19 Sept. 2013, available at https://www.hrw.org/news/2013/09/19/libya-rebuff-icc.
45. Mark Kersten, No Winners in ICC-Libya Standoff, Foreign Policy, 8 Oct. 2012, available at http://foreignpolicy.com/2012/10/08/no-winners-in-icc-libya-standoff/.
47. Int’l Crisis Group, Libya: Getting Geneva Right, Middle East and North Africa Report no. 157, 1 (2015), available at https://d2071andvip0wj.cloudfront.net/157-libya-getting-geneva-right.pdf.