The ICC at 10

The International Criminal Court (ICC) was envisioned as, in the words of first and current Prosecutor General Luis Moreno-Ocampo, the achievement of a “dream”: an imperative of creating an international system of justice. Established in the 2002 Roma Statute, the ICC’s creation was seen as a groundbreaking development after a century in which, as stated in the Roma Statute’s Preamble, “millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity.” That cry of “never again” became manifest in this institution “determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes.” Today, however, that dream and the ideal of “international justice” remain in peril. In the ten years since the ratification of the Roma Statute, the International Criminal Court has struggled to come into its own. Facing formidable practical obstacles and a challenging political context, the Court has completed only a single trial over its nine years of existence. Nonetheless, the commitment to justice enshrined in its charter has deeply shaped attitudes towards human rights within the international arena.
Paradoxically, the Court has displayed limited institutional capacity yet extensive symbolic influence. In this respect, the ICC has come to play an influential, and at times transformative, political role in the world today, most recently in response to the Arab Spring. The ICC has sought to serve as both an instrument of justice and a deterrent of crimes against humanity. The principles it embodies reveal a clearer picture of newly institutionalized global norms of human rights. Contradictory and often amorphous expectations for and limitations upon state behavior have come into conflict with the traditional standard of sovereignty. Indeed, the evolution of the Court powerfully illustrates the forces and trends at play in an international system devoid of mechanisms of authority or enforcement that are independent of its constituents.
Origins
On a basic level, the International Criminal Court represents the fusion of authority and legitimacy of multilateral institutions and the compelling need to prosecute past and prevent future crimes against humanity. In its most basic form, “internationalism” dates back to the League of Nations and has been attractive to the international sphere. In practice, institutions like the United Nations or the European Union have faced serious crises of legitimacy. Chief among these has been the strong resistance of nations to the prospect of losing sovereignty, traditionally a foundation of the international order.
The idea of having an agency with an international mandate for addressing war crimes and crimes against humanity dates back to World War II. Military tribunals were then put in place by the Allied Powers in Nuremberg and Tokyo, and international criminal tribunals were later established in Yugoslavia and after the genocide in Rwanda. The progressive extension of a symbolic global mandate to prosecute war crimes, crimes against humanity, and now the crime of aggression” corresponds with the emergence of a theoretical conception of “human rights” as enshrined in the United Nations’ Universal Declaration of Human Rights. Despite the failure of the international community to answer the call to action of “never again” and prevent future genocides in Rwanda and Yugoslavia, criminal tribunals once again took a prominent role in trying leaders responsible for the gravest atrocities, such as former Serbian president Milosevic and senior commander Radovan Karadzic in Yugoslavia and Théoneste Bagosora in Rwanda. International Criminal Tribunals have played a key role in social and societal reconciliation. However, some argue that they only accentuate preexisting resentments and grievances, promoting future or further violence and bloodshed. Nonetheless, the precedent set is at the very least a small step towards creating a truly just and peaceful world.
Limitations and Hostility
The International Criminal Court has long been subject to controversy and, at times hostility while displaying seemingly limited success. A sustained challenge has been the lack of international consensus around the International Criminal Court. Although it has come to possess immense symbolic value, the ICC has not received sufficient practical support or maintained credible or consistent enforcement. Indeed, chief among the challenges and complexities that the ICC has faced are the ambiguity and at times outright hostility of an international community that created but seeks to control and manipulate it. The inherent conflict between conflict and justice, the jurisdictional restrictions and limitations placed upon the ICC all weaken it despite the scope and ambitiousness of its mandate. Today, 120 countries are States Parties to the Rome Statute of the International Criminal Court. However, yet some of the world’s major powers—namely the U.S., Russia, China, and India—are not among them and as such, not within its jurisdiction.
The mandate of the International Criminal Court has been particularly weakened by the refusal of the U.S. to ratify the treaty for fear that U.S. nationals could be prosecuted. This paradox—and, some might say, hypocrisy—might seem surprising. After all, in the words of former President Clinton, the United States’ “strong support for international accountability and for bringing to justice perpetrators of genocide, war crimes, and crimes against humanity” might lead one to believe that the international system’s reigning hegemon would see the ICC as a key tool in furthering these aims. Indeed, in 2000, upon initially signing the Roma Statute, President Clinton strongly expressed his support of the ICC, despite reservations, saying “we wish to remain engaged in making the ICC an instrument of impartial and effective justice in the years to come.”
However, inherent concerns have preempted U.S. support of the Court. This, in and of itself, has been among its critical weaknesses. The United States–along with China, Iraq, Israel, Libya, Qatar and Yemen–voted against the Statute before then signing on and ultimately ‘unsigning.’ In Senate hearings held at the time, Senator Rod Grams called the ICC “a monster that must be slain,” and Senator John Ashcroft similarly denounced the ICC as “a clear and continuing threat to the national interest of the United States.” Specifically, the ICC was seen as a threat to U.S. sovereignty. Clinton initially expressed the concern “that when the court comes into existence, it will not only exercise authority over personnel of states that have ratified the treaty, but also claim jurisdiction over personnel of states that have not.” Indeed, as under the Bush administration, U.S. policy took a turn towards hostility, due in part to deep concern arose that the ICC might be used to prosecute Americans deployed in Iraq and Afghanistan. In 2002, the U.S. ‘unsigned’ the Roma Statute, formally conveying to the United Nations that America intended not to ratify it and thereafter, has no longer considered itself to be bound by the ICC’s mandate. The establishment of bilateral immunity agreements (BIAs) aimed at preventing Americans from being transferred to the ICC’s custody has been aimed at further protecting the U.S. from this monster. The American Servicemembers’ Protection Act of 2002 used the threat of cutting military aid to penalize countries that were unwilling to sign such immunity agreements. The Nethercutt Amendment, sponsored by former U.S. Representative George Nethercutt, currently a resident fellow at Harvard’s Institute of Politics, sponsored this initiative, which allowed the U.S. to leverage economic aid against countries that did not agree to these exemptions, including through cutting humanitarian programs.
Herein lies one of the central dilemmas—that, in order to avoid violating considerations of sovereignty, states must voluntarily submit themselves to the ICC’s jurisdiction—yet those who most fear prosecution are least likely to do so. Such resistance to the ICC has undermined its authority. Over time, U.S. hostility has evolved into a fundamental ambiguity. The U.S. refrained from vetoing the Security Council Resolution referring the case to the ICC and instead abstained. Around this time, Congress also began to repeal anti-ICC sanctions that had formerly been imposed. But the damage had been done. The moral weight and power of the U.S., not aligned with this fledgling institution but aimed at evading the aegis of its authority, seems to have sent a powerful message to the world—that justice is not for all.
A False Start?
In July 2003, Luis Moreno Ocampo swore, “I solemnly undertake that I will perform my duties and exercise my powers as Prosecutor of the International Criminal Court honourably, faithfully, impartially and conscientiously, and that I will respect the confidentiality of investigations and prosecutions.” Mr. Moreno Ocampo, a former Prosecutor from Argentina had been involved in “Military Junta” trial of top military commanders for mass killings and human rights abuses during Argentina’s “dirty war.” Soon after his election, in April 2003, Mr. Moreno Ocampo said, “I deeply hope that the horrors humanity has suffered during the 20th century will serve us as a painful lesson, and that the creation of the International Criminal Court will help us to prevent those atrocities from being repeated in the future.” However, his record—and that of the Court—has been mixed in this regard. Upon its creation, the extent to which the personality and capability Chief Prosecutor would determine the future of the Court were widely recognized. In the words of Edmond Wallenstein, a Dutch diplomat who had been involved in the Court’s establishment, “Inevitably the prosecutor will be the public face of the institution.” Unfortunately, this “face” leaves behind a controversial and contested legacy.
Over the course of his nine-year term as Chief Prosecutor, Moreno Ocampo has come under heavy criticism for his behavior. He has been faulted for a perceived lack of focus and commitment, and the Court has hardly thrived under his tenure. Clashes of personality with the other senior officials of the Court have further compromised the efficacy of the Court and caused many employees to leave. Scandals abound. In 2006, Christian Palme, the ICC’s head of public relations filed a complaint against Moreno Ocampo, asserting that the chief prosecutor had sexually abused a female journalist while in South Africa. Moreno Ocampo was ultimately acquitted on these charges, and he fired Palme for making the allegations. After Palme had appealed to the International Labour Organization, the ILO concluded in 2009 that Mr. Palme had acted rightly and was awarded damages as well as his salary paid up until the end of his initial contract. Moreno Ocampo was strongly criticized for his abuse of power because he personally involved himself in dismissing Palme.
Independent of personality and publicity, the Court’s record is mixed. It took more than six years after the ICC was opened in 2002 for its first case to begin, that of Thomas Lubanga, a militia leader from the Democratic Republic of Congo, for war crimes, including the use of child soldiers in ethnic fighting in the Ituri region of Eastern Congo. He was accused of forcing thousands of children to enlist in militias, some only eight years old, who were drugged and trained to kill, steal or mutilate civilians, and used for sex by militiamen. The pace of the Court in prosecuting Lubanga’s case—slow, almost absurdly so—as well as missteps on the part of the prosecutor made what should have been a triumph for the Court a near-disaster. Proceedings were twice halted by judges, who called for Lubanga’s release because of the prosecution’s mistakes and lack of cooperation. Judges said the prosecution’s handling of evidence amounted to “wholesale and serious abuse” of the process.
Beyond this awkward beginning, the lack of success of the International Criminal Court in producing tangible results has caused many to become frustrated and disillusioned. Two individuals indicted by the ICC, Sudanese President Omar al-Bashir and Joseph Kony, the leader of the Lord’s Resistance Army (LRA), are currently evading arrest, and both have even been able to travel to ICC signatories such as Kenya without being arrested. Perhaps, in retrospect, these indictments were unwise. Targeting sitting heads of states and powerful actors in lawless regions without a sustainable mechanism for enforcement, the ICC may have, in effect, set itself up for failure. Shifting its focus to prosecute lower ranking but equally guilty players in these conflicts and atrocities could be more feasible and allow the Court to begin building a record of results from which to build a foundation of legitimacy and a reputation for efficacy from which to target more senior figures.
Revived Role
The value and viability of the ICC, both practically and symbolically, have been tested by the Arab Spring. The Court’s growing importance as a perceived deterrent and mechanism for accountability has given it a central role in controversial events. In his speech at the Kennedy School’s Forum last fall, Mr. Moreno-Ocampo raised the question of whether the referral of Gadhafi by the Security Council represented a political decision or a recognition of the ICC’s growing influence. Alternatively as “a new justice trend” in which atrocity crimes will not be tolerated” or a “normal UNSC political decision” in which the ICC is used as a “tool” “to implement a political decision based on the interest of its members” the ICC has played a central role in recent events in Libya. The new and expanded importance of the ICC on the international stage may continue to test its ability to navigate these challenges.
The institutional characteristics of the ICC inherently leave room for ambiguity. Moreno Ocampo has emphasized, “This is only an emergency court…We are not here to replace national judicial systems. We will act only when they need us.” However, what “emergencies” bring about this “need” has never been unambiguous, and the comparative advantage of the International Criminal Court as compared to other mechanisms of justice such as national courts must be considered. Gadhafi’s death under unclear circumstances could be investigated as a potential war crime, and his son Seif al-Islam’s impending trial may become a source of tension.
Here, the disproportionate regional focus of the International Criminal Court has further detracted from its legitimacy and has caused it to be perceived as an instrument of Western neocolonialism. Thus far, in the ICC’s six cases, only African nations have been targeted, with leaders indicted from Sudan, Rwanda, and the Congo. Although, to some extent, there is a basis for this focus, given that many human rights abuses are indeed committed in this region of the world, the perception of injustice hinders the potential for justice. Speaking of Seif al-Islam’s case, “We believe that the ICC has no jurisdiction on these issues,” the deputy foreign minister, Khaled al-Khiam, said. “We see the international criminal court as targeting African states.” Until it can shake this negative image, the ICC will not be seen as fully legitimate on the world stage. In the future, even simple steps could change the course of the Court. Currently, the ICC is reported to be considering prosecuting crimes committed in Afghanistan and Somalia, among other nations. Taking on a non-African case could possess immense symbolic value in breaking with this perceived trend.
Justice or Peace
In general and particularly through the Arab Spring, the U.S. and others have expressed concerns that the potential for prosecution for war crimes or crimes against humanity serves as an incentive for dictators to cling to power longer, perhaps, than they otherwise would have. Nonetheless, the ICC has simultaneously been presented as an essential instrument of justice and accountability. This essential dilemma of whether the International Criminal Court serves as an essential deterrent or, through establishing perverse incentives for political leaders, perpetuates and even exacerbates atrocity must be considered in looking towards the future of the ICC. Consistently, the Security Council has been encouraged by many activists to refer Bashar al-Assad to the ICC for the ongoing crackdown in Syria yet has thus far failed to do so. Navi Pillay, the high commissioner for human rights, has also recently recommended that the Security Council the current situation in Syria to the International Criminal Court. As bloodshed continues, this question of whether justice would complement or counteract efforts for peace becomes particularly relevant.
In Yemen as well, the International Criminal Court has played a symbolic yet far from practical role. Tawakul Karman, the Yemeni Nobel Prize Laureate, speaking in a keynote address at Harvard Arab Weekend in 2011, emphasized that her only two demands were that Saleh’s assets be frozen and that he be indicted by the ICC. Although Saleh officially stepped down in December in accordance with the terms of a deal brokered by Saudi Arabia via the Gulf Cooperation Council (GCC) that included immunity from prosecution, he has remained a presence in the country. While in the U.S. for medical treatment, he has vowed to return and to play a future role in Yemen’s politics. Moreover, he is not far from the reins of power as his son and several nephews retain influential positions in the army. Karman then rejected this alternative as contrary to the will of the Yemeni people and as creating a sense of impunity that emboldened Saleh to persist in human rights abuses. That Saleh has faced no consequences for the massacre of thousands peaceful protesters, including via indiscriminate shelling of civilian neighborhoods, seems morally repugnant. The change of government in the absence of regime change, as has also been the case in Egypt, limits the potential for change. Mr. Saleh is currently in the United States, receiving medical treatment for injuries sustained in an attack, and was recently met by protesters changing “I.C.C., not N.Y.C.!” as he emerged from the Ritz-Carlton, one of whom was arrested for throwing a shoe at him.
A New Beginning?
2012 marks the beginning not only of a new decade but also, perhaps, of a new era for the Court, and it may have the chance for a fresh start under a new regime. Moreno-Ocampo is expected to step down as head of the Office of the Prosecutor (OTP) in mid-2012, and the search for his successor has already concluded—with the selection of his current deputy as the favored and only candidate to replace him. The unanimous selection of Fatou Bensouda of Gambia, formerly Assistant Prosecutor has met with acclaim. She has extensive experience with the ICC and, before joining, had been a legal adviser and trial attorney at the international tribunal that prosecuted leaders of the 1994 Rwanda genocide.
Throughout the process, she was strongly supported by the majority of the Court’s African members. However, this support could cut both ways. African countries have thus far been the sole targets of the Court’s cases and has, as a result, come under pressure and scrutiny as unjustly biased. Ms. Bensouda may face particular pressures as she continues to pursue the cases now pending, all in Africa. In response to the question of how she, as Chief Prosecutor, would deal with criticisms directed from Africa, she said firmly, “My origin, being an African, has nothing to do with my mandate,” she said. Nonetheless, although her capability and experience make her the best candidate for the job, the political pressures and dynamics will inevitably be complicated for her as well. As a fresh face with a new start, she will have a unique opportunity to once again reinvent the Court while continuing to confront its ongoing challenges.
Today, the ICC is clearly still finding its way as an institution. The combination of immense symbolic value and limited practical efficacy have led to immense frustration yet allow the potential for equal growth. The contradictions of its institutional structure, particularly the nations that have exempted themselves from its jurisdiction, remain substantive challenges to its authority and legitimacy. These tensions must be resolved, but, more importantly, the Court must continue to move forward. A new prosecutor and an expanding role in the international system may be able to guide the International Criminal Court towards playing a more productive and effective role as the tool for justice and conflict transformation that it was envisioned as and can still become.