The President who broke the ICC’s back

Six years after the issuance of Omar al-Bashir’s arrest warrant, there doesn’t seem to be a Plan B

By: /
23 June, 2015
Sudanese President Omar al-Bashir (C) is received by his supporters and government officials at the airport in the capital Khartoum, Sudan. REUTERS/Mohamed Nureldin Abdallah
By: Josh Scheinert
Lawyer practising international law in Toronto

If you were writing a book documenting the quest to bring justice to those who have committed the gravest international crimes — war crimes, crimes against humanity, and genocide — the front cover of the book would likely be a picture of the Nuremberg Tribunal.

The back cover of the book, as it would stand now, would be the picture of Sudanese President Omar al-Bashir’s plane taking off from a military base in South Africa, taken just last week.

The failure on the part of the International Criminal Court and the global community to bring Bashir to face justice places the ICC at a crossroads. The Court is being challenged over its credibility — and it is losing. It is not taken seriously in the corridors of power. If it is to become truly relevant, instead of a largely aspirational institution dotted by a few tangible achievements, the ICC must reinvent itself, now.

Bashir’s flight from South Africa is tragic for so many reasons. First, as a robust democracy, South Africa is committed to the rule of law and its constitution is one of the most advanced in the world when it comes to protecting human rights. Second, South Africa was a founding member of the ICC. Third, South Africa’s fight against apartheid — now a crime against humanity within the ICC’s jurisdiction — benefited from global assistance, proving that all states have a role to play in ending systematic and widespread criminality. South Africa has betrayed Bashir’s victims.

Defenders of the ICC point to its achievements, while pleading for patience. It has concluded two trials, securing convictions for terrible crimes committed against civilians in the Democratic Republic of Congo. Other trials are ongoing. They point to the fact that its very existence has created a so-called “Hague effect” that has leaders and rebels second guessing decisions to commit crimes — a claim defendable only by hearsay. These achievements, they posit, are advancing the rule of law and ending impunity.

While that may be true, we must now ask ourselves what these gains are worth if after this much time the Court is unable to fulfill its raison d’être. Omar al-Bashir has made a mockery of the rule of law and the claim that the Court is a credible institution in defence of international justice. What is the rule of law when justice is brought against all but the leaders? Picking off the low-hanging fruit only counts for so much.

That 17 years after the conclusion of the Rome Statute, and 13 years after the ICC came into being, an individual wanted on charges of war crimes, crimes against humanity, and genocide can so brazenly defy his arrest warrant, in the company of heads of state attending a continental summit, while the courts of his democratic host order him to remain in the country, proves the absence of a rule of law and the prevalence of the very impunity the Court’s founding sought to eradicate. This was more than just a setback.

The decision by African heads of state to grant themselves immunity before the new African Court of Justice and Human Rights indicates that there is a systemic challenge to the rule of law in Africa. Charles Taylor is looking more and more like the exception, not the norm.

Confronting this challenge will require the ICC to choose between venturing into the political or irrelevance. (Though why an institution taking proactive steps to ensure it can carry out its mandate needs to be characterized as political is unclear.) Willful blindness is a legal concept that should not be lost on the Prosecutor in the full exercise of her responsibilities. The Court’s stubborn determination to operate almost mechanically is hindering its own chances of success.

Sticking to the status quo would be especially unfortunate given the fact that Fatou Bensouda, the ICC’s new prosecutor, is Gambian. It is her home that is leading the revolt against her institution, labelling it a tool of Western neo-colonialism. Bensouda, not the Court’s advocates in the global north, must bring together African victims and civil society groups, and lead them in the confrontation with their leaders. Statements from the ICC Deputy Prosecutor announcing the Court was “disappointed” by the failure to arrest Bashir are wholly unsatisfactory and display either dangerous ignorance towards, or inability to deal with, the magnitude of the challenge. Six years after the issuance of the arrest warrant, there does not seem to be a Plan B.

In tandem with this effort, and in order to facilitate its success, the Court must be proactive in ending the second example of how it has failed to usher in an era of greater respect for the rule of law — the United States of America must become a member of the Court. True, the U.S. and the ICC now enjoy positive relations, and the U.S. has not stood in the way of Security Council referrals in Darfur and Libya. Its soldiers are also helping track down Joseph Kony and other Lord’s Resistance Army leaders, wanted by the ICC for crimes in northern Uganda. But it is still not a member of the Court and refuses to subject itself to its jurisdiction.

This is a glaring double standard for an institution trying to bring African leaders to the global north to stand trial. Louise Arbour, who is beginning to question the efficacy of international criminal justice as a means to achieving peace, encapsulates the price of this double standard:

“The fact that others equally guilty than you are not brought to account doesn’t make you less guilty. But it makes it less just to single you out.”

And though she was not addressing the U.S. when she said it, it does not make it any less relevant. There is no good answer for “why us and not you?” and Bensouda has to show she and the Court are working steadfastly to confront that very legitimate question. Her unwillingness to comment and confront this hypocrisy is damaging.

Solving the ICC’s legitimacy crisis, however, is not the end. The ICC has to figure out how to work better. Its track record to-date has yet to prove why it is capable at delivering justice. And while addressing these challenges is an essay in and of itself, in brief, the ICC needs to streamline cumbersome and lengthy procedures to free up legal and financial resources to become a more robust institution. Otherwise, the world will run out of patience. Darfuris wanted justice yesterday.

Ten years into the life of the International Criminal Tribunal for the Former Yugoslavia, it completed 27 cases, with 17 having proceeded into the appeals stage. Ten years into the life of the ICC, with over 700 employees and an annual budget now at EU120 million, it had yet to complete a single trial. In 13 years it has finished two trials and one appeal of its 21 cases.

In the preamble of its founding document, the Court states it is “Resolved to guarantee lasting respect for and the enforcement of international justice.” At this juncture, any honest self-assessment of global efforts to end impunity for the commission of war crimes, crimes against humanity, and genocide must conclude they have not succeeded.

How the ICC conducts itself in the immediate future will determine how the next, and potentially definitive chapter of international criminal justice is written.

It must be the Court, not Omar al-Bashir, who takes off next.

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