- LATIN AMERICA
- MIDDLE EAST
- United Kingdom
- United States
- New Zealand
- South Africa
By David Kaye
Finding the Prosecutor Who Can Set It Straight
Last February, soon after Libyan leader Muammar al-Qaddafi unleashed his forces against civilian protesters, the
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
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
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
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
In other words, unlike the ICTY and the ICTR, the ICC has very broad jurisdiction, both in time and space, but without enjoying the
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
Six years after the
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
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
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
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
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.
DAVID KAYE is Executive Director of the International Human Rights Law Program at the University of California, Los Angeles, School of Law
Available at Amazon.com:
Copyright ©, Council on Foreign Relations, publisher of Foreign Affairs. All rights reserved. Distributed by Tribune Media Services.
World - Who's Afraid of the International Criminal Court? | Global Viewpoint