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The
International Criminal Court: Success or failure?
The
global court intended to hold war-crimes perpetrators to account
is five years old. Nick Grono of the International Crisis
Group assesses its record
The
well-executed international-security operation could have
been taken straight from the script of a Hollywood thriller.
In the late evening of Saturday 24 May 2008, Jean-Pierre Bemba,
former vice-president of the Democratic Republic of Congo
(DRC), was seized by Belgian police in a Brussels suburb under
a secret arrest-warrant issued by the International Criminal
Court the previous day. Bemba has been charged with war crimes
and crimes against humanity resulting from a campaign of terror
and brutality by his troops in neighbouring Central African
Republic (CAR), there at the invitation of then CAR president,
Ange-Félix Patassé, to aid the latter’s
(ultimately failed) resistance to a coup attempt in 2002-03.
Once the formalities are complete, Bemba will be transferred
to a prison in The Hague to await trial.
The ICC prosecutor, Luis Moreno-Ocampo, was triumphant: “With
the Rome Statute, nobody is beyond the reach of international
justice. Nobody can side with the criminals and against the
victims. ... International justice is in motion.”
But is it? June 2008 marks five years since the International
Criminal Court became fully operational, following Moreno-Ocampo’s
appointment in 2003 as the court’s first prosecutor.
How has the court performed in meeting its founders’
hopes that it would put an end to impunity for the perpetrators
of atrocity crimes and contribute to the prevention of such
crimes?
Long road, first steps
The short answer is that the court is still finding its feet,
and without far better support from the international community,
and without a clearer strategic approach, the court may well
fail in its mission to end the impunity of the world’s
worst abusers.
There is good news. The prosecutor now has formal investigations
underway in Darfur, the DR Congo’s Ituri district, northern
Uganda and the CAR - targeting some of the world’s worst
atrocities in recent years. He has issued arrest warrants
in each of these cases, and has suspects in custody in the
DR Congo and CAR cases on charges of war crimes and crimes
against humanity. He’s targeted the gamut of atrocities,
ranging from sexual slavery to recruitment of child soldiers,
and from torture to mass murder. After a slow start in the
Darfur investigation, he’s now zealously pursuing those
responsible for the atrocities there, and has threatened to
move higher up the chain of command and to broaden his investigations
into more recent crimes, including by anti-Khartoum rebels.
These are real achievements for what is still a fledgling
organisation that lacks its own police force and generally
must rely on the assistance - willing or coerced - of the
governments in whose countries it is operating. It is also
dependent on international support if it is to succeed: for
funding, for intelligence and evidence, for the arrest of
suspects, and for pressure on recalcitrant governments. All
too often that support is not forthcoming, making an already
challenging job even more difficult.
There is also less good news. The ICC has yet to hold its
first trial. All of the formal investigations are in Africa,
even though atrocities within the ICC’s jurisdiction
have been, and continue to be, committed on other continents
as well. Why is this? For a start, Africa is home to many
of the most violent and deadly conflicts within the court’s
remit, so it is natural the prosecutor has started there.
Moreover, the governments of the DR Congo, Uganda and the
CAR have invited the prosecutor to conduct investigations,
requests he has willingly accepted. This has advantages -
the prosecutor is likely to get the support of those governments
while he conducts his inquiries.
But it also has drawbacks, as that support is implicitly conditional
on his not going after those in power - which is perhaps why
in these three countries only rebels, warlords and opposition
leaders have been indicted so far. Even Jean-Pierre Bemba
was arrested for his role as a leader of a rebel group responsible
for offences in the CAR rather than for his role in the DR
Congo itself (see Gérard Prunier, “Chad, the CAR
and Darfur: dynamics of conflict”, 18 April 2007)
Sudan is different. The Darfur situation was sent to the court
by the Security Council in March 2005, following a United
Nations commission of inquiry which found that crimes against
humanity and war crimes had been committed by government forces.
This gave the prosecutor a strong incentive to carry out an
investigation into atrocities there. This he has done, more
aggressively as time has passed. Initially the prosecutor
adopted a low-key and fairly conciliatory approach to the
Sudanese government, with the hope that the regime would be
cooperative in response. When it became clear that Khartoum
had no intention of cooperating with what it perceived as
a serious threat to its power, he became more prosecutorial.
In the early months of 2008 he has assailed the regime for
its repudiation of the Security Council’s directive for
it to cooperate with the ICC, and taken the international
community to task for its abject failure to respond to Sudan’s
non-compliance.
The way ahead
But the ICC, and particularly the prosecutor, could make four
moves to enable the court better to tackle impunity.
First, the court needs to expand its focus beyond Africa.
The prosecutor is already conducting preliminary analyses
of atrocities in Colombia and Afghanistan. If the evidence
warrants it, he should launch proper investigations in these
countries, particularly in Afghanistan where warlords, commanders
and insurgents have continued to commit systematic abuses
in recent years.
Second, and perhaps most importantly, the prosecutor must
start pursuing perpetrators in positions of power in those
countries that invite him in or in which he chooses to investigate.
Government leaders shouldn’t think that by calling in
the ICC they can use it as a tool against their opponents,
and avoid rigorous scrutiny themselves. If the court is to
have the impact its founders hoped of it, it needs convictions
of government leaders who abuse human rights. Such convictions
give deterrence and delegitimisation a force that prosecutions
of rebels do not. Just look at how the Slobodan Milosevic
and Charles Taylor prosecutions have resonated around the
world.
Third, the prosecutor needs to be clearer about his strategic
objectives in countries in which he operates. Is he just focused
on his own cases, or is he also committed to building domestic
prosecution capacities and supporting overall efforts to end
impunity and encourage stability? The latter are critical
and often lacking, as the Ituri case in particular demonstrates
- though three suspects are in custody, and the arrests have
not destabilised the government, a strategy that combines
further prosecutions with effective outreach and support is
still needed.
Fourth, the prosecutor must continue to shame the international
community, and particularly the European states who were cheerleaders
for the court’s creation, into turning their high-flown
rhetoric into concrete action. The west has stood by while
Sudan has defied the court (see Nick Grono & David Mozersky,
“Sudan and the ICC: a question of accountability”,
31 January 2007). And it is all too ready to pressure the
court to defer to the uncertain benefits of fledgling peace
processes, when it should instead recognise that the prosecutor
has a job to do, and his mandate is to pursue justice.
Although the ICC is in motion, it still needs to pick up the
pace. For the court truly to serve a deterrent effect for
those who may contemplate atrocities in the future, it needs
to expand its horizons, and do more to pursue high-level abusers
in power. And the court’s founding states must begin
to provide real political support to the court if it is to
ever hope to end the impunity of those responsible for conscience-shocking
crimes. (www.opendemocracy.net)
The writer is the deputy-president of the International Crisis
Group
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