Four years into its mandate, the International Criminal Court has yet to secure a conviction for those accused of committing horrific war crimes since 2002. Yet again, the court has decided to drop charges against an accused war criminal due to lack of evidence. The latest war criminal to escape justice is Abu Garda of Darfur, who was accused of killing 12 African Union peacekeepers in 2007, and voluntarily turned himself in to authorities last year. However, ICC judges have ruled that there is not enough evidence against Abu Garda to support a trial.

According to the press release, the pre-trial Chamber:

“was not satisfied that there was sufficient evidence to establish substantial grounds to believe that Bahar Idriss Abu Garda could be held criminally responsible either as a direct or as an indirect co-perpetrator for the commission of the crimes”

This is on the heels of the dropped charges against the Thomas Lubanga Dyilo, the first case to go to trial at the ICC, for the same reason – lack of evidence. I had such high hopes for this institution, created as a permanent international court with the power to punish the most serious violations of human rights. The purpose of the court was to take away the ‘ad hoc’ nature of prosecutions of war crimes, which until the establishment of the ICC relied upon the political will of the international community to agree to the establishment of an international criminal tribunal, like the ones for the former Yugoslavia and for Rwanda.

The situation of Darfur was unique for the ICC as it was the first situation to be referred by the Security Council of the United Nations. Other cases have been referred to the Special Prosecutor, Luis Moreno Ocampo, by the countries themselves affected. So given the lack of cooperation by the government in Sudan, I can understand the limitations with gathering evidence. However, this is a problem that appears to be plaguing the court.

Understandably, witnesses and evidence is a difficult thing to collect in a guerilla conflict. But is it the case that Mr. Ocampo is just not trying hard enough to gather the necessary evidence to secure a conviction? Or is it that Western legal standards are just unsuitable to trialling international war crimes? We clearly will never get a Law and Order: War Crimes and Atrocities Unit, in which teams of highly specialized forensic technologists scour desert and jungle floors for evidence that this particular armed rebel commited this particular atrocity. I would like to be able to say it should be enough that there is overwhelming evidence proving that you are a person of a particular rank within a particular armed group and that that armed group has been witnessed committing war crimes to convict that person of war crimes. Perhaps there is too much individual agency attributed to violators of international law. But clearly this would be problematic.

I don’t know what solution to offer the ICC and I’m sure their much more qualified legal experts are working hard to address their lack of success. I do hope for a win for the ICC sometime soon, as the institution is quickly losing credibility in the eyes of the international community.