The ICC Is Scrutinized Even as Ivory Coast's Ex-President Goes on Trial

It was hard to know who was really on trial in the Hague on Monday: the former president of the Ivory Coast, Laurent Gbagbo, who appeared in the dock at the International Criminal Court (ICC) charged with crimes against humanity; or the international court itself, whose credibility has been strained by questions over its impartiality and effectiveness.

First, Gbagbo: the ousted leader was arrested in his West African country last Tuesday and spirited away to the Dutch city, where he now sits jailed in a prison for alleged war criminals (another current inmate is Bosnian-Serb military commander Radko Mladic). Gbagbo is charged with playing a role in the killings of more than 3,000 people after he refused to cede defeat to his rival, the now President Alassane Ouattara, after elections in November 2010. Ouattara was finally installed after French special forces swooped into Ivory Coast in April and seized Gbagbo, handing him over to local forces. That ended six months of explosive postelection violence, in which the country — once West Africa's richest — slipped into terrifying anarchy. Gbagbo's militia allegedly targeted their political opponents, dragging them from hotels, houses and restaurants, and from cars at checkpoints around Ivory Coast's largest city Abidjan, and then killing them with bricks and guns. More than 150 women were also gang-raped in the onslaught, according to testimony gathered by Human Rights Watch.

Gbagbo did not answer to those charges on Monday; the trial will formally begin in June. Instead, dressed in a business suit and tie, he complained that the security forces who arrested him last week had tricked him into believing he was "going to meet a magistrate," and then flying him to the Netherlands against his will. A Gbagbo attorney Emmanuel Altit told reporters that the legal proceedings were invalid, due to Gbagbo's "illegal arrest and transfer to the Hague."

That line of defense seems unlikely to succeed, judging by remarks from the ICC chief prosecutor Luis Moreno-Ocampo, who told reporters on Monday there was strong evidence against Gbagbo. Asked why the ICC had brought charges only against Gbagbo and not others allegedly involved in the violence, Moreno-Ocampo told France 24 television channel, "He is the first, not the last. We have to be impartial." Gbagbo's team claims the trial is a show of "victors' justice." One of the former President's advisers, Toussaint Alain, said on Monday that Gbagbo was "a victim of a justice system, which is more about politics than justice." Human Rights Watch and other organizations have documented attacks by Ouattara's military, and the Committee to Protect Journalists wrote in a blog post last week that Ouattara forces had killed two local journalists this year.

Yet even if members of Ouattara's forces are finally indicted for war crimes by the ICC, the doubts over the court itself are unlikely to fade quickly.

The questions, raised by a few human-rights groups and by those who have long doubted the purpose of the court (including U.S. officials), revolve around the ICC's ability to secure convictions, whether it can remain impartial in highly sensitive issues of war and politics, as well as over the qualifications of its judges; the U.S. has refused to sign the treaty governing the ICC.

Indeed, Gbagbo is the first head of state ever to face trial by the ICC (the former Serbian president Slobodan Milosevic was tried in the Hague by the International Criminal Tribunal for the former Yugoslavia). Sudan's president Omar al-Bashir was indicted on war crimes in July 2008, but he remains in power and has never been arrested.

But it is in Libya where the ICC has faced its biggest recent hurdles. In June this year, the ICC indicted Libyan leader Muammar Gaddafi, his son Saif al-Islam and his intelligence chief Abdallah Senoussi for ordering the killing of unarmed demonstrators when the Libyan revolution began in February.

Then in August, ICC officials claimed to be awaiting Saif al-Islam's transfer to the Hague after his supposed arrest by Libyan rebels; the following day Saif al-Islam appeared as a free man on Tripoli's streets, deeply embarrassing the ICC. Two months later, rebel fighters captured the leader Gaddafi and, rather than transferring him for trial in the Hague, killed him. After Saif al-Islam was finally captured on Nov. 18 in the Libyan Sahara, Moreno-Ocampo flew to Tripoli, ostensibly to negotiate his transfer to the Hague. But facing a wall of resistance from Libyan officials over allowing the highest-ranking Gaddafi personality left alive to be flown to the Hague, Moreno-Ocampo announced that Saif al-Islam and Senoussi could be tried in Libya.

On the other hand, Ouattara's government argues that its judiciary is too chaotic and confused to try the divisive former President — thus its easy accession to the ICC.

Nevertheless, there are questions about the effectiveness of ICC trials themselves: only one defendant has been convicted since the court began in 2002. Most trials drag on for years, and since the court's 18 judges serve staggered nine-year terms, some trials wrap up only after their tenure ends.

Judges are well paid, with tax-free salaries of €180,000 ($240,000) a year and retainers of €20,000 (HK$27,000) a year if they are not immediately called to service, according to ICC documents cited by the Financial Times in September. The judges are chosen during sessions of the so-called Assembly of States Parties, which oversees the running of the court. Comprising one person from each member country, the assembly meets most years to sift through lists of candidates proposed by various governments. (The next election takes place in New York City next week.) In theory candidates should have experience relevant to trying cases like war crimes. In practice, those people are often in short supply. The Financial Times reported that Japan, which funds about one-fifth of the court's budget, had won seats for two Japanese judges who were not qualified lawyers.

Meanwhile, only two people in all of Latin America applied for six recent vacancies, forcing ICC officials to extend their recruiting period to this month. In a report to the ICC's oversight body, the South African jurist Richard Goldstone — a former international prosecutor — said several candidates were unqualified, and many, he said politely, were so old that they might not be able to serve a whole nine-year term.

Those problems will soon no longer be the concerns of Moreno-Ocampo, an Argentine, whose nine-year term ends in April. ICC officials announced last week that he would be replaced by one of his deputies, Fatou Bensouda, who comes from Africa's smallest country, Gambia.