David Kaye. Foreign Affairs. Volume 90, Issue 3. May/June 2011.
Last February, soon after Libyan leader Muammar al-Qaddafi unleashed his forces against civilian protesters, the United Nations Security Council unanimously voted to refer the situation in Libya to the International Criminal Court. Days later, the ICC’s chief prosecutor, Luis Moreno-Ocampo, announced the launch of an investigation of members of the Qaddafi regime, promising, “There will be no impunity in Libya.”
With the UN Security Council injecting the court into one of the year’s biggest stories, the ICC may seem to have become an indispensable international player. It already is looking into some of the gravest atrocities committed in recent decades-in the Democratic Republic of the Congo, Sudan, and Uganda, among others-and its investigation into the 2007 election-related violence in Kenya is shaking up that country’s elite. But a closer look suggests that the ICC’s sleek office building on the outskirts of The Hague houses an institution that is still struggling to find its footing almost a decade after its creation.
The court has failed to complete even one trial, frustrating victims as well as the dozens of governments that have contributed close to $1 billion to its budget since 2003. The ICC’s first trial was nearly dismissed twice. Its highest-profile suspects-Sudanese President Omar al-Bashir and Joseph Kony, the leader of the Lord’s Resistance Army (LRA), the rebel group that has terrorized northern Uganda and neighboring areas-have thumbed their noses at the court and are evading arrest. And with all six of the ICC’s investigations involving abuses in Africa, its reputation as a truly international tribunal is in question.
A rare opportunity to recapture the court’s early promise lies ahead: at the end of the year, the 114 states that have ratified the Rome Statute, the ICC’s founding charter, will elect a successor to Moreno-Ocampo, who is expected to step down as head of the Office of the Prosecutor (OTP) in mid-2012. As the ICC’s driving force and its face to the world, the chief prosecutor has a critical job: choosing which situations to investigate, which senior officials to indict, and which charges to bring-all sensitive decisions with major political implications. In 2003, before Moreno-Ocampo was elected, then UN Secretary-General Kofi Annan rightly said that “the decisions and public statements of the prosecutor will do more than anything else to establish the reputation of the court.” By this standard, Moreno-Ocampo’s tenure has not been a success. Thanks partly to a management and decision-making style that has alienated subordinates and court officials alike, he has been dealt repeated judicial setbacks, which have overshadowed his office’s modest gains.
The ICC needs a new leader who has not only the necessary prosecutorial, diplomatic, and managerial skills but also a keen sense of the importance of this moment in the development of the still fledgling institution. To achieve the ICC’s promise as a global court, the parties to the Rome Statute must select a prosecutor who can meet the court’s most serious challenges: concluding trials; convincing governments to arrest fugitives; conducting credible investigations in difficult places, such as Libya and Sudan; and expanding the ICC’s reach beyond Africa. This may be a lot to ask for, but the future of the ICC depends on it.
Laying Down the Law
The ICC is the culmination of a decades-old movement to promote international criminal law. The movement started soon after World War II, with the creation of the international military tribunals at Nuremberg and Tokyo, and gained steam again in the early 1990s, when in the midst of the war in Bosnia, the UN Security Council set up the International Criminal Tribunal for the Former Yugoslavia (ICTY) and then, in the wake of the genocide in Rwanda, the International Criminal Tribunal for Rwanda (ICTR). The Security Council gave both tribunals the mandate to prosecute war crimes, crimes against humanity, and genocide, with the expectation that they would target the most senior political and military leaders. The early days were hard going. It took a year to find a chief prosecutor for the ICTY, and at first even supportive governments contributed only small amounts to the courts’ budgets. Other states were obstructionist. The governments of Croatia and Serbia, alleging bias, refused to turn over war crimes suspects to the ICTY or share information with it-they relented only when cooperation became a precondition for membership in the European Union. NATO originally refused to carry out the ICTY’s calls to arrest indictees in Bosnia for fear of endangering its forces in the country. Serbian President Slobodan Milosevic managed to drag out his trial for years, making the ICTY seem powerless in the face of his defiance. The work proceeded slowly: the ICTY handed down its first sentence in 1996; the ICTR, in 1998.
By now, however, the ICTY and the ICTR have held dozens of trials, including against senior political leaders, such as Milosevic and Radovan Karadzic, the president of Republika Srpska, and top military officials, such as Théoneste Bagosora of Rwanda. The ICTY has sentenced 64 defendants and acquitted 12, and the trials of another three dozen are on its docket; it has also transferred defendants and evidence to local courts in Bosnia. The ICTR has sentenced 46 defendants and acquitted eight, and the trials of two dozen more are on its docket. The two tribunals have significantly developed international criminal jurisprudence, and they have deeply influenced the training, if not the behavior, of military officers worldwide. They have contributed, although perhaps only modestly, to stability in several countries. The ICTY has not alleviated deep-seated animosities in Bosnia, but it can claim some credit for bringing a measure of reconciliation to Bosnia, Croatia, and Serbia. The ICTR has produced an authoritative historical account of the Rwandan genocide. The ICTY has triggered the development of a specialized war crimes chamber in the Bosnian courts, and the ICTR has inspired the widespread use in Rwanda of the traditional gacaca court system to deal with hundreds of thousands of lower-level perpetrators.
Thanks in part to these courts’ relative success, the international criminal law movement continued to gain traction. By the early years of this century, the Special Court for Sierra Leone had been established to prosecute the war crimes and crimes against humanity committed in Sierra Leone since late 1996 (that court’s highest-profile trial, against former Liberian President Charles Taylor, is winding down toward a judgment). After protracted negotiations, a mixed Cambodian international tribunal was set up to try the surviving Khmer Rouge leadership. Meanwhile, under the heavy influence of international nongovernmental organizations and local civil-society movements, Western governments led an effort to draft a charter for a permanent international criminal court. In 1998, a un-sponsored diplomatic conference in Rome adopted the Rome Statute, creating the first permanent international criminal institution. The ICC was tasked with investigating and prosecuting war crimes, crimes against humanity, and acts of genocide committed on the territories of its member states or by their nationals, or whenever asked by the UN Security Council. It would not look back to past injustices; it would have the power to go after crimes committed at or after its creation. And it would act only when national courts with jurisdiction over these crimes were “unable” or “unwilling” to do so themselves-meaning when governments lacked the necessary substantive law or legal infrastructure or when they were shielding culprits from responsibility.
The icc became a reality after the 60th signatory to the Rome Statute ratified the treaty, in July 2002-just four years after the Rome conference. This was lightning speed by the standards of international treaty-making and a measure of the court’s vast following. Still, it was only natural that the ICC, which sits at the intersection of war and peace, politics and law, would also attract enemies. China, Russia, and the United States have chosen not to join it, for instance, for fear that it might one day take aim at their own nationals. Washington has slowly been softening its position, but it remains wary. Earlier this year, in an unprecedented show of support for the court, it voted for the Security Council’s referral of the Libya situation. (In 2005, it had abstained from voting on the Sudan referral regarding atrocities committed in Darfur.) But partly at the insistence of the U.S. government, the referral stipulated that the nationals of states that have not ratified the Rome Statute do not fall within the jurisdiction of the ICC. The idea was to protect them from prosecution by the ICC if they ever were to be suspected of committing crimes in the course of a foreign military intervention against Qaddafi.
In other words, unlike the ICTY and the ICTR, the ICC has very broad jurisdiction, both in time and space, but without enjoying the UN Security Council’s unequivocal backing. This makes its authority seem inherently fragile-a big problem given that its effectiveness depends on the cooperation of governments. Prosecuting international crimes in countries where conflict is ongoing, or against sitting heads of state, is delicate work: it challenges not only accepted notions of state sovereignty but also the traditional territorial boundaries of criminal investigations. At the same time, the ICC relies on state authorities to arrest suspects and transfer witnesses, evidence, and intelligence, and most governments have done little to help. Some have stepped up in relatively simple situations: for instance, Belgium and France each arrested one Congolese suspect on their territory and transferred the two men to the ICC in The Hague. But Bashir, for one, has managed to travel around Africa and the Arab world, including to states that are parties to the Rome Statute, such as Chad and Kenya. The Security Council, the very body that referred the Sudan situation to the ICC, has not stood firmly behind the arrest warrant against Bashir; it could have increased the cost of doing business with Bashir by imposing sanctions on fugitive Sudanese officials and governments that flout the arrest warrant. The Security Council may deserve credit for making the referral, but it appears uninterested in giving the court the kind of support it needs. And it is unclear whether when the time comes to back up the recent referral on Libya, the Security Council will once more undermine the court even as it seems to be empowering it.
Given that the ICC operates in a complicated, sometimes hostile political environment, it was bound to face serious problems. Yet many of its wounds have been self-inflicted. Management and personality clashes, for instance, have hindered its development. The court’s leadership was in place by early 2003, with a triumvirate formed by the prosecutor, the court’s president (the court’s ceremonial head, who is responsible for external relations), and the registrar (the lead administrative officer). As impressive as the three principals were, they were mismatched. Moreno-Ocampo, interpreting the independence of the OTP broadly, challenged the registrar not to raid his bailiwick and continually picked battles with the registrar’s staff on everything from human resources to witness protection. He also resisted coordination with the president. These petty battles over turf and resources undermined the sense that the court’s leaders were sharing a historic mission. Meanwhile, many of the ICC’s prosecutors and investigators chafed under what they perceived to be Moreno-Ocampo’s micromanaging and erratic decision-making. Some of the OTP’s most experienced staffers quit; those who remain say that low morale continues to plague the court.
Worse, the OTP has not made enough concrete progress. It has yet to conclude a single trial. Its first case, which indicted the Congolese militia leader Thomas Lubanga Dyilo for recruiting and using children as soldiers, has faltered repeatedly. Some observers have chided Moreno-Ocampo for failing to charge Lubanga with any crimes of sexual violence, a scourge in the Ituri region while he was in charge- this was a lost opportunity, the critics argued, considering the extent of gender-based atrocities in Congo and elsewhere in Africa.During opening statements in the case, Moreno-Ocampo was seen repeatedly using his Blackberry, and he left the hearings, reportedly to attend the World Economic Forum in Davos, before the defense concluded its presentation. Twice, a three-judge panel ordered that Lubanga be released (he has been in custody since March 2006) because of serious concerns that the prosecution had failed to share potentially exculpatory information with the defense. And although both times an appellate chamber ordered that Lubanga stay in detention, it also harshly criticized the OTP’s work. Throughout, the prosecution repeatedly failed to implement court orders, infuriating the judges. Even if Moreno- Ocampo’s team occasionally got the law right, its brash behavior undermined the judges’ confidence in its good faith and competence.
Six years after the UN Security Council referred the situation in Sudan to the ICC, not one suspect is in custody. In 2007, the court issued a warrant for the arrest of Ahmad Harun, a senior official in Bashir’s government, and Ali Kushayb, a leader of the Janjaweed militias, for committing war crimes and crimes against humanity in Darfur. But instead of carefully plotting the two men’s arrests, targeting other parties at the same level of responsibility, and carefully establishing the Sudanese government’s broader policy of repression and violence, in 2008, Moreno-Ocampo requested that the judges issue a warrant for Bashir’s arrest, charging him, too, with war crimes and crimes against humanity-and also with genocide. The move was supposed to be a bold demonstration of the court’s purpose. But deciding what to do about the genocide charge-which had never been brought against a sitting head of state-held up the judges’ decision for eight months. Finally, in 2009, came a warrant for war crimes and crimes against humanity; it took another year-and an appeal-for the warrant for genocide to be issued. And the damage was already done. Internal dissent at the court had been exposed, public confidence in the genocide charge was undermined, and Darfur activists disagreed bitterly over strategy. Alleging genocide would have been ambitious in even the best investigative circumstances: it is always difficult to prove the crime’s requirement that the perpetrators specifically intended to destroy, in whole or in part, a national, ethnic, racial, or religious group. But in the case of the atrocities in Darfur, there were special difficulties. As one former senior ICC prosecutor put it, “It is difficult to cry government-led genocide in one breath and then explain in the next why two million Darfuris have sought refuge around the principal army garrisons of their province.” Many atrocities have clearly been committed against civilians in Darfur; but whether Bashir intended to, and is responsible for trying to, destroy the region’s ethnic communities remains a subject of intense debate. And so Moreno-Ocampo’s big gesture backfired. The Sudanese government, which was already refusing to cooperate with the ICC, went into lockdown. It kicked most humanitarian workers out of Darfur and cracked down on the domestic opposition. The International Crisis Group, a strong supporter of the ICC, criticized Moreno-Ocampo’s approach, accusing him of “risking politicizing his office” and taking a needlessly “confrontational” approach with Bashir. Today, progress on the Darfur file seems to have completely stalled.
A related problem has been the ICC’s lack of legitimacy among some African leaders. Although 31 African countries have ratified the Rome Statute, many of them, as well as the African Union, have opposed the ICC’s investigations in Sudan and Kenya. This may have something to do with self-serving politics-mutual back-scratching among the continent’s leaders. But with all its formal investigations targeting African states-the Central African Republic, Congo, Kenya, Libya, Sudan, and Uganda-the court has also invited the charge that it is an agent for postcolonial Western interests.
This is unfortunate. For one thing, Africa is the setting for innumerable atrocities, and international attention to them should be welcomed, not shunned. For another, the ICC has been conducting preliminary examinations (inquiries that may or may not turn into formal investigations) outside Africa, including in Afghanistan, Colombia, Georgia, Honduras, and the Palestinian territories. Unfortunately, Moreno-Ocampo has failed to see these as easy opportunities to defang the opponents who call the OTP biased. He could have taken a more aggressive line regarding Colombia, for example, and launched a full investigation into war crimes and crimes against humanity committed by paramilitary officials with links to official government agencies. The facts called for it, and the circumstances allowed it: with the Colombian courts seeming unlikely to pursue any senior-level cases, the ICC had the jurisdiction to step in.
By commission and omission alike, the OTP has repeatedly made itself a target for charges of politicization. This has come as a surprise to those who applauded Moreno-Ocampo’s decision early on to create within the OTC a special office to encourage cooperation from other international actors and ensure the ICC’s complementarity with national courts. Moreno-Ocampo has undoubtedly faced significant pressure to go after senior leaders, but having chosen to pursue the big fish and failed to catch many, now he does not have much to show for his efforts. Particularly during its nascent phase, the icc needed a more effective operator, institution builder, and diplomat.
Trials and Tribulations
There are reasons to hope that the ICC can still become a viable agent against impunity, chief among them the desire of victims worldwide to see the court succeed. The upcoming election of the next prosecutor is an occasion to do right by them.
African leaders are understandably pushing for an African prosecutor. The continent has largely embraced the Rome Statute, and the ICC has focused on some of Africa’s most conflict-riven states. Having an African lead the prosecution over the next decade could help inspire domestic and regional efforts at developing accountability and the rule of law by demonstrating that international justice is not a norm imposed by the West but one shared by top African jurists. An African prosecutor might also have a better sense of how to reach out to African communities that need to be convinced of the ICC’s value. Yet a search for Moreno-Ocampo’s replacement that starts and ends with a focus on Africa would only bolster the ICC’s unwanted reputation as a single-minded, regionally focused court. Two well-regarded Gambian lawyers-Fatou Bensouda, the ICC’s deputy prosecutor, and Hassan Jallow, chief prosecutor of the ICTR-are currently the front-runners. (The chief prosecutor of the ICTY, the Belgian Serge Brammertz, is thought to be a long shot, not least because much of the work will require leading prosecutions involving Congo, a former Belgian colony.) But as the parties to the Rome Statute begin to look for candidates-they have already established a search committee-they should dispel the impression that anyone already has a lock on the position. And they should consider candidates without any geographic constraints; the ICC deserves the prosecutor best able to meet its core challenges.
At the bureaucratic level, the next chief prosecutor will need to be a manager who can lead on multiple fronts. First among those must be an effort to gain back the confidence of the ICC’s investigators, analysts, and other prosecutors. Recruiting and retaining the most highly qualified staffers means giving them substantial authority and providing them with guidance without micromanaging them. Another important task will be to rebuild the OTP’s reputation with the court’s judges. The next prosecutor will also have to bring several trials to conclusion, as well as conduct high-profile investigations in difficult environments, such as Libya.
In all these tasks, the next prosecutor will need to display political and diplomatic savvy. One pressing and thorny issue will be getting states to enforce arrest warrants, especially those against Bashir and the other Sudanese indictees. This will not be easy. Even key ICC supporters in Africa, such as Ghana, Senegal, and South Africa, have been unable to beat back the anti-ICC fever within the African Union. To many African Union members, arresting Bashir may seem less desirable than ever now that he appears to be accepting the fact of southern Sudan’s secession, which was decided by referendum early this year. Some Western officials are reportedly in favor of getting the Security Council to defer enforcing the arrest warrant against him; the U.S. special envoy to Sudan, J. Scott Gration, has publicly stated his concern that the warrant has complicated peacemaking efforts. On the other hand, ignoring this warrant would likely undermine the credibility of the court’s warrants generally.
In such a fraught political environment, the next prosecutor will not make any headway using confrontational or triumphalist rhetoric. The OTP would do better to rethink its top-down approach in Sudan and reopen investigations concerning other senior-level figures with potential liability for the atrocities committed in Darfur. The suspects are already known: a secret annex to the 2005 report of the UN’s International Commission of Inquiry on Darfur is said to list over four dozen names. Focusing on suspected perpetrators at levels of seniority lower than Bashir’s would allow ICC prosecutors to establish that the Sudanese government implemented a widespread policy to commit atrocities in Darfur. The ICC seems likely to prosecute two Darfur rebel leaders for attacking UN peacekeepers; bringing a viable case against Sudanese government figures in addition to those two would significantly bolster the ICC’s credibility. Over the long term, holding one or several trials that establish Khartoum’s involvement in the atrocities in Darfur could put pressure on governments that currently give Bashir assistance. It could also add to the pressure on Bashir himself, particularly if someone in his circle is found guilty.
The LRA leader Kony will continue to pose both a diplomatic and a military challenge. Since the warrants for the arrest of Kony and four of his lieutenants were issued in 2005, the Ugandan government has pushed the rebels out of northern Uganda, bringing a modicum of safety to the region’s residents. But now the LRA is brutalizing civilians in bordering areas of the Central African Republic and Congo. Short of mounting a military operation aimed at arresting Kony and his commanders, which no government appears prepared to do, there may be no solution to this problem-at least none within the powers of the ICC prosecutor. When it comes to the LRA file, the main challenge for the next prosecutor will be to continue to press for arrests without appearing powerless in the face of ongoing atrocities.
So far, the threat of ICC prosecutions has helped generate some useful discussion about justice at the national level. In places as diverse as Colombia and Kenya, for instance, the court’s activities have helped generate public calls-and, in Kenya, legislation-for domestic trials for war crimes and crimes against humanity. The next ICC prosecutor should take the task a step further, doing more than simply advocating for national efforts and instead playing a substantial role in shaping them. Moreno-Ocampo and court officials have said all the right things about the importance of national prosecutions, and there has been some interaction between prosecutors and investigators at the ICC and their national counterparts. But this activity has been treated as though it is tangential to the court’s success. In fact, it is essential. The prosecution of senior officials in The Hague should support the prosecution of lower-level officials in national courts. Under the new prosecutor, the ICC should help build the capacity of national legal systems to try international crimes by sharing more strategy, tactics, and information, much as the ICTY has done to assist prosecutors throughout the Balkans.
Witness for the Prosecution
The new prosecutor will need to defend the ICC against charges that it brings too little accountability while standing in the way of peace and stability. Among other things, this will mean deploying the post’s powers carefully, with a full awareness of their limits. At times, this could require considerable restraint: for instance, the OTP might be better off not seeking any warrants in the Libya case if the Security Council is unlikely to help with enforcement. The ICC prosecutor must be a forceful spokesperson for international criminal justice, of course, but that job also requires understanding that most governments see justice as only one priority among many. Not all international prosecutors have successfully handled this aspect of the role. Carla Del Ponte, the third chief prosecutor of the ICTY and the ICTR, regularly tussled with officials at the tribunals, government officials in the Balkans, and members of the UN Security Council-so much so that in 2003 the Security Council took back the ICTR half of her job. Louise Arbour, who held the dual position before Del Ponte, was just as firm in insisting that states cooperate with the courts, but she also managed both to get her hands dirty with investigations and prosecutions and to maintain the respect of the state leaders whose support she needed. Moreno-Ocampo is more Del Ponte than Arbour, and the ICC needs an Arbour.
Arbour herself once wrote that the international community’s repeated failure to prevent atrocities “leaves criminal justice to meet the sometimes unrealistic expectations about the contribution that it can make to social peace and harmony, to the eradication of hatred, and to the reconciliation of previously warring factions.” Substitute “the ICC prosecutor” for “criminal justice” in that sentence, and the difficulty of the job becomes clear. To be effective, the ICC’s next chief prosecutor must share Arbour’s healthy understanding of both the court’s promise and its limitations.