Why we must learn to love the ICC

Prospect Magazine

March 2009

The ICC's indictment of Sudan's president for war crimes may have done nothing other than ruin his holiday plans. But at least that's a start

Polly Botsford

War crimes trials are all the rage at the moment. When Sudanese President Omar Al-Bashir was indicted by the International Criminal Court (ICC) on 4th March 2009, his name added to the growing list of those accused of war crimes. In February, the Extraordinary Chambers in the Courts of Cambodia started hearing the case against the infamous Khmer Rouge commander Comrade Duch. Meanwhile, the trials of the Bosnian Serb-leader-turned-bearded guru, Radovan Karadzic, as well as numerous of African leaders, are ongoing in the Hague. In fact, there have been more trials of this kind in the past fifteen years than at any time since the Nazi trials after the second world war.

The ICC, created in July 2002, and the various ad-hoc UN tribunals (such as the International Criminal Tribunal for the former Yugoslavia) are the only courts of law where dictators, presidents and generals can be directly called to account for heinous crimes. These are, evidently, matters of huge import. The Balkan leaders amassed over 100,000 deaths, Pol Pot around 2m, and now Bashir is held responsible for around 300,000 deaths.

But do these trials mean there’s now more justice in the world? They can often be counterproductive. For instance, Bashir's response to the ICC indictment was to order thirteen of the biggest aid agencies out of Sudan, leaving millions in risk of starvation or death by disease. (The African Union has already asked the court to delay the charges for 12 months in order to prevent further destabilising the region.) These trials may also entrench leaders in situ rather than encouraging them to a negotiated peace. Gareth Evans, president of International Crisis Group, has argued that the situation in Zimbabwe was made worse by the arrest of former Liberian President Charles Taylor almost on its doorstep in 2006; fearing international prosecution if he stood down peacefully, Robert Mugabe was loath to do so.

And by supporting the prosecution of rogue leaders, countries may be trying to get out of actually having to intervene in troubled parts of the world themselves. Take Bashir again. In July 2008, when he was first indicted, genocide was on the list of charges. Yet this had been dropped by the time the arrest warrant was issued in March. This may be because if genocide is established, the convention on genocide compels signatories, which include the US and major European nations, to act, potentially militarily—something they do not want to do.

There is a trickier problem than all of these, however: the glaring inconsistency with which indictments are meted out. From the ICC's actions, it appears that some conflicts and atrocities are more worthy of prosecution than others. Problems that affect the interests of a member of the UN Security Council (for example Russia and Chechnya, the US or Britain and Iraq, the US in respect of Israel and Gaza) are notably missing from the agenda.

In fact, all the ICC’s ongoing trials are of African leaders: those from the Democratic Republic of Congo (DRC), the Central African Republic, Uganda and, next up, Sudan. (See Paul Moorcraft's criticism of the ICC's awful timing in the Bashir indictment). They are all even from the same region of Africa. Courtney Griffiths QC, the lawyer representing Charles Taylor, claims that his client is a "victim of a new form of neo-colonialism… the use of the law to delegitimise and outlaw certain kinds of struggles against western interests." There is, he adds, a joke at the Hague that the ICC is known as the "African criminal court." Clive Stafford-Smith, director of Reprieve, prefers to call it hypocrisy, something which "breeds hatred around the world."

Yet there are signs that public opinion is beginning to demand greater consistency—witness George Monbiot’s "citizen’s arrest" for war crimes of former US ambassador John Bolton when he came to speak at the Hay Festival in 2008, or the Spanish courts continuing to press for the prosecution of Israeli officials for the bombing of Gaza back in 2002. Unrealistic, yes; gimmicky even—but also maybe evidence of growing recognition that the system needs rebalancing. Indeed even the existing prosecutions, despite their selectivity, are still establishing a crucial principle: that leaders are accountable for their crimes.

Perhaps, then, instead of criticising its obvious imperfections, we should be trying to improve the system of international justice. For a start, the US needs to sign up to the ICC: without it, as Stafford-Smith says, the court is "fatally undermined." We must hope that President Obama will have the audacity to make this change. To date, his comments are encouraging. "Earlier generations faced down fascism and communism not just with missiles and tanks, but with sturdy alliances and enduring convictions," he said in his inauguration speech. "Guided by these principles once more, we can meet those new threats that demand even greater effort—even greater cooperation and understanding between nations." He has also acknowledged that the court has pursued charges only in cases of the most serious and systemic crimes and that "it is in America’s interests that these most heinous of criminals, like the perpetrators of the genocide in Darfur, are held accountable. These actions are a credit to the cause of justice and deserve full American support and cooperation."

For its part, the ICC could for now concentrate its efforts on securing its first conviction, rather than issuing more warrants. Thomas Lubanga, a rebel leader from the DRC, is a good candidate—his trial opened on 26th January, and he is charged with "individual criminal responsibility for the war crime of conscripting and enlisting children under the age of 15 and using them to participate in hostilities." Such a conviction would give the ICC greater credibility and legitimacy, enabling it to be a real and present threat to rogue leaders.

As Richard Dowden pointed out in Prospect in May 2007, there is often a difficult choice to be made between justice and peace. Luis Moreno Ocampo, the Argentinian chief prosecutor at the ICC, is vocal about this dilemma and reminds us that his job can only be to secure the former, not the latter. But it's not impossible for both to be achieved. In northern Uganda, indictments in October 2005 against the Lord's Resistance Army leader Joseph Kony and his top commanders did, at least in the short term, help alleviate the intensity of the conflict (a truce was announced the following year).

The reality is that prosecution by the ICC is one of the few credible threats faced by leaders of warring parties responsible for atrocities. If cases are consistently deferred (as has been suggested for Sudan) for the sake of a peace processes, its value as a deterrent will be compromised. It may be true that, at the moment, all these indictments can do is stop guilty leaders from travelling to countries empowered to and prepared to arrest them. If so, all we’ve done so far is ruined their holiday plans. But that’s a start.