The ICC’s Next Decade: Judicial Ideals and Reality

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Fatou Bensouda, the Chief Prosecutor at the International Criminal Court, had little time from her inauguration in June last year before suffering the inevitable deluge of questions attendant on the court’s ten year anniversary. At that juncture, all those who take an interest in this pioneering institution were keen to hear about the direction in which Mrs Bensouda plans to take it in the course of her tenure.

That direction, however, will be determined as much by the currents and eddies that wash the world of international politics as by Mrs Bensouda’s plans. This we might call the juxtaposition of judicial ideals and reality. A derelict but typical response for someone in this position, aware of the limits on their own influence, might be to concentrate on applying the law and not enquire too far into the politics surrounding it. Apparently this will not be so with Mrs Bensouda, who has indicated that she is attuned to those political constraints and how she might manoeuvre within them.

What, then, must be her priorities for manoeuvring in the coming years?

Enhancing the court’s legitimacy: this would mean constantly lobbying the recalcitrant major state powers to become more closely involved. In August 2009, in Nairobi, Hillary Clinton said of the Rome Statute: “this is a great regret that we are not a signatory. I think we could have worked out some of the challenges that are raised concerning our membership”. Clearly then, Clinton appreciated the kudos that the US would gain through membership. And conversely, US membership would provide the single biggest boost to the court’s legitimacy. Geopolitically, the world is probably re-welcoming a balance of power situation reminiscent of that in the 19th century when the Concert of Europe held sway. This would mean a more multipolar world, without superpowers. If the scope for unilateral action by the US thereby reduces, and it increasingly relies on regional balances to right themselves without US involvement, the rationale for keeping the US out of the court – primarily its global military deployment – may well also reduce to the extent that membership, on balance, becomes preferable.

Making sure the court is not Afro-centric: criticism that this reality is inherently wrong often derives from blind egalitarianism. The simple fact is that the African continent is the one with the highest incidence of conflict and governments least capable of addressing the issues that arise from it. However, one way to ameliorate the imbalance would be by fearlessly extending the court’s focus to those de facto grey spots of the globe that are nevertheless de jure within the court’s purview. For example, Georgia, which is an ICC member state with many of the Russian troops suspected of committing crimes in the 2008 war between the countries still on its territory, and a Moscow-friendly new government that is unwilling to investigate. Afghanistan may well also warrant closer attention.

Preventing abuse: this is not a problem exclusive to the international character of the ICC. Domestic courts also have to prevent their abuse by one set of interests against another. This means being alive to the problem of tactical use by politicians in conflict zones. It also means fairness in charging parties to a conflict. For example, in the Democratic Republic of Congo, the crimes committed by the FDLR, CNDP, Mai Mai and FARDC in the Kivu region, have not been investigated at all or with as much rigour as those by Thomas Lubanga’s men. Similarly, the decisions concerning the prosecution of Ugandan government officials have left observers of the court and those hoping for justice in Uganda with more questions than answers.

Avoiding alienating states: another problem is the case law emerging on atrocity crimes. The state parties that created the Rome Statute did not intend to outlaw war per se. Attempts, such as the 1928 Kellogg-Briand Pact, to prohibit the use of force in foreign policy, no matter how admirable, have had to be abandoned. Similarly, the closer judicial activism brings international criminal law to rendering the use of force for all reasons and by all means illegal, the more that law will ultimately lose its credibility and the fewer states will subscribe to it.

Being practical: most likely it will be experience rather than principle that dictates whether and to what extent the court intervenes in a given situation. While the court of course takes a judicially absolutist approach to intervening where offences might have been committed, it is clear that this can have a negative effect on potential peace deals. The example of Slobodan Milosevic is foremost; who ended the Kosovo War with what he thought was a promise that he would not be prosecuted. Of course, it is hoped by the judicial absolutists that the long-term deterrent effect will outweigh the short-term discouragement to peace deals. The statute is future facing, after all. However, one cannot predict if deterrence will work, and many will still ask the question: what is really the more humanitarian approach?

Being constructive: the Syria situation has produced a chorus of voices calling for an objective set of criteria by which the UN Security Council must mandate the opening of an investigation by the court into a state that is not a party to the statute, provided it fulfils those criteria for atrociousness. The emergence of such criteria might not happen for a long time or at all and, indeed, critics would argue that this would contribute to the humanitarian war trend and vain quest for the immaculate intervention. However, the court would, nevertheless, be best placed to lead those calls and develop a useable framework if the political conditions for adoption became favourable.

Finally, not being arrogant: there is little currency in the view that perfecting the court is simply a question of time. This is because it is still in thrall to the caprice of state sovereignty and lack of supranational authority. This is likely to remain the case for the foreseeable future. In other words, the court is precisely the kind of institution that can, and has in the past, disappeared. This means that, in order to survive, more than any other court, its judicial ideals will have to match reality.

Richard Cashman and Eeva Heikkila

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