Stuffing the ICC’s Christmas Stocking, Dr. Robert Zuber

23 Dec

The recently concluded Assembly of States Parties (ASP) to the ICC gave rise to an array of hope and concern from States, considerable expressions of support by NGOs and the community of legal educators, and some election campaigning for judgeships that made horse trading in Texas or Oklahoma look perfectly rational by comparison.

For some, the controversies surrounding the ICC were the latest in a series of setbacks that have some wondering about the commitment of the international community to end impunity for the most abusive of crimes.  Events surrounding ICC engagements with Sudan, Kenya and Libya have not inspired much optimism.  State presentations to the ASP by China and others underlined trust deficits with varying degrees of relevance, leading some participants to despair — mostly unwarranted we feel — that a fair, effective and transparent system of international justice will perpetually elude our collective grasp.

It is not only the ICC, of course, that generates such concerns.  Discussions in the UN Security Council over means to ‘sunset’ the International Criminal Tribunals for Rwanda and the former Yugoslavia contributed to the 2013 International Residual Mechanism for Criminal Tribunals.   However, even while agreeing recently to extend the work of the ICTY, some Council members could be heard urging the ICTY president and prosecutor to clean up remaining business as soon as possible. With due regard for budgetary concerns, these members know full well that successful legal proceedings at this level are rarely driven by time constraints and that, indeed, a failure to provide full access to relevant evidence and cross examination is as likely to lead to appeals, if not outright dismissals, than to firm convictions.  And, needless to say, given the severity of the crimes for which people like Karadžić and Mladić have been accused, ‘firm’ is to be highly preferred.

In the case of the ICC, the only point at which ‘hurry up’ seems even remotely applicable is in the issuing of Council referrals which can certainly be ill-timed and occasionally seem designed more to push away difficult security challenges than to deal with them in a truly systemic, complementary fashion.  In this and other aspects, the ICC is too often caught up in conundrums more political than legal, and largely not of the ICC’s own making.

Chief Prosecutor Bensouda’s frequent briefings to the Council this year, most notably on Libya and Darfur, have for the most part been painfully frustrating to behold.  The work of her office has clearly been compromised by, among other things, inadequate budgets, even less adequate security contexts, the reticence by states to apprehend indicted suspects, a lack of follow up on referrals by the Council, and in some cases signatory states leveling public charges of bias with much greater force than other states issue concrete commitments of support.  (It is difficult to see how a now-contemplated Council referral on the DPRK would be able to avoid one or more of the above pitfalls.)

This ASP brought to the surface most of the key issues affecting the current performance and longer-term credibility of the Court:  the need for greater complementarity between national and international legal mechanisms, the need for referrals that are tied to clear budgetary commitments, the willingness of the Council to discipline states that shelter or otherwise protect indicted criminals,  the need to counter the perception of ‘Africa bias’ in the Court as part of a larger ‘bias’ in a system that has little stomach for employing the same remedies against larger states that it routinely imposes on smaller ones. Clearly, the ICCs agenda is replete with matters not directly related to evidence gathering and the conduct of criminal trials.

There were some interesting moments in this ASP not tied directly to the endless trolling of votes for ICC judgeships.  One highlight was surely the speech of Ambassador Mansour of Palestine, who rebuffed Israel’s contention that its presence at the ASP was not warranted and then claimed that a growing number of policymakers in Palestine were convinced that membership in the ICC would greatly benefit their evolving state interests.   The question, of course, is the degree to which Palestine’s participation is likely to help reverse the trend of more politicized engagements with the Court.

In the end, even after its finding of non-cooperation on Sudan and the dismissal of charges against Kenyan President Kenyatta, the Court is resolved to fight another day.   Its Christmas stocking is hardly bulging this year, but the issues it is likely to contend with in 2015 have been clearly laid out. And even critical states seem cautiously optimistic that the Court can weather its political and procedural storms, make changes where appropriate, and continue to serve the compelling and broadly-accepted interests of ending impunity for the worst criminal offences.

In the view of many onlookers, what the ICC needs in its Christmas stocking this year is fewer modulated expressions of support and more concrete commitments by states.   As Madame Bensouda has made clear on many occasions, it is up to states to ensure that alleged perpetrators, once indicted, are made available for trial.  Moreover, it is up to states to ensure that, once convicted, perpetrators can be incarcerated in facilities that meet international standards.  It is up to states to ensure that witnesses are protected from retribution and that victims are offered reparations that go beyond cash disbursements.  It is up to states to ensure that adequate resources are available to conduct fair trials that lead to unimpeachable judgments.   These ‘stocking suffers’ are not endless, but they are essential.

As with other meetings of this sort, the ASP merely confirmed the limitations of any trial court – even one with the deserved prestige of the ICC — and outlined essential, practical commitments by both the Security Council and other UN member states, without which the ICC cannot possibly sustain an effective and trustworthy mechanism of international justice.  Moving forward, we simply cannot allow our commitment to ‘never again’ to be sidetracked by ‘never enough.’

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