The International Criminal Court: success or failure?

By Nick Grono

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.

June 9, 2008 - 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.

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