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Posted by on Jun 27, 2012 in International, Law | 1 comment

Fending Off Failure: The International Criminal Court’s New Chief Prosecutor

Guest post by Ali Ezzatyar

With its failure to complete a single trial or conviction, the International Criminal Court (ICC) is sinking into irrelevance less than a decade after its birth. The important idea that leaders can and should be accountable for their atrocities, even if they fail to be tried at home, also faces extinction. The reality is, the ICC’s failures are a direct result of its strategy, which has been poorly crafted for its mission. With its new chief prosecutor just sworn in, and it will be up to her to save the court from ultimate failure.

The promise of the ICC was bold and vital: the world would come together to prevent impunity for crimes against humanity, no matter where they took place. Given the record of the ICC’s precedent tribunals and the steady evolution of international criminal law, there was reason to be optimistic.

In the 1990s, criminal tribunals of Rwanda and Yugoslavia became the face of international criminal law. Previously inconceivable images of former heads of state and their cronies standing trial boosted the perception that an internationally accepted jurisprudence with respect to human rights crimes could be developed. So far, these tribunals have convicted over 100 key perpetrators of crimes against humanity; the work of these courts has quantifiably influenced the conduct of world leaders and their armies around the world.

The ICC is the natural evolution of this notion of accountability, with the Security Council mandated authority to claim jurisdiction over human rights violators no matter where their crimes are committed. It enjoys either the formal or tacit approval of most of the world’s nations, with even the United States’ historically lukewarm treatment of the court shifting of recent. As far as resources, the ICC has more cash on hand than it needs. Given all of this, why is it stagnant?

To begin, as an international criminal court, the ICC has failed to pursue prosecutions in a geographically meaningful way. This has contributed to its inconsequentiality in the lives of most of the world’s citizens. Lead by its former chief prosecutor, Luis Moreno Ocampo, the court seemed to have a particular penchant for African human rights violators. While crimes against humanity exist on every continent, almost all of the ICC’s investigations involve Africa. This is also contributing to the notion that the court is a tool of Europe and “the West” generally.

Most importantly, though, the ICC’s chief prosecutor’s ambitious platform has failed to bring results. While the ICC was established with the intention of targeting the upper echelon of human rights violators, it has failed to bring the type of charges that have a meaningful chance of ever being brought to trial.

Sudan is one example. Lacking any notion of increment, the court brought charges against a sitting head of state, President Omar al-Bashir, for crimes in Darfur. Without surprise, President Bashir managed to find a network of support that has allowed him to evade arrest and escape prosecution. He has even traveled to countries who are signatories of the ICC, who have unsurprisingly been unwilling to arrest the President of a nearby country. This was totally foreseeable, and damaging to the court’s reputation. At least ten other human rights violators were suggested at the time in Sudan that were more likely to be apprehended and to stand trial; this could have set an important international precedent for the court and served as a vital warning for all of Sudan’s higher-ups.

In Libya as well, while the headline of a criminal investigation and referral being brought against Ghaddafi was spectacular when it emerged in May 2011, it probably did more harm than good. Such an arrest warrant should have been sealed, if issued at all. Ghaddafi’s ability to find a home outside of Libya became reduced and this probably perpetuated the violence there, and made his death and impossibility to stand trial inevitable.

Perhaps out of respectable ambition, the ICC’s former chief prosecutor resembled a man more interested in headlines than convictions. As a result, the narrative of the ICC being merely symbolic has found more strength amongst its critics.

With heavy influence from the United States and other Security Council members, signatories of the Rome Statute have thrown their weight behind Fatou Bensouda as Ocampo’s successor. Her appointment does not come without risks of its own, however. After years of criticism from Africa that it has been unfairly targeted, Bensouda must make sure she does not merely act as a counterbalance to Ocampo’s previous habits outside of Africa.

The new chief prosecutor must pursue a broader range of lower rung violators of human rights internationally, who not only should but can be brought to trial and convicted. The mission of the court cannot be implemented without an understanding of the court’s genuine limits nor generation of meaningful results from its activities. At a critical juncture of its life, the ICC cannot see another decade of stagnancy, and through pressure on the next court’s leader the world should see to it that it doesn’t.

Ali Ezzatyar, a contributor at The Reaction, is a lawyer and writer based in Paris and San Francisco. He is also the director of the steering committee to establish the Berkeley Program on Entrepreneurship and Democracy in the Middle East.

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