The International Criminal Court deserves better

  • Articles and op-ed
20 July 2015

On July 17, we celebrate "International Justice Day." On this day in 1998, the International Criminal Court (ICC) was founded -- a milestone in the fight against impunity for the worst crimes known to mankind: genocide, crimes against humanity, war crimes and the crime of aggression. The idea of a permanent, independent, international court that would hold individuals, including leaders, to account for such crimes was long considered utopian. Indeed, the creation of the Court itself was nothing less than a miracle of diplomacy supported by civil society all over the world. 

But we should look beyond the miracle of its creation and judge this institution by its achievements. International criminal justice remains a work in progress. The Court frequently has to navigate political minefields as it investigates those most responsible for atrocity crimes, while upholding the highest standards of due process and giving countless victims a voice. The Court's independent judicial machinery is staying the course. It has completed three cases and proven its effectiveness. Its deterrent effect has been empirically demonstrated: some potential perpetrators have shied away from committing crimes. As UN Secretary-General Ban Ki-moon put it, "the old era of impunity is over. In its place, slowly but surely, we are witnessing the birth of a new Age of Accountability." Almost two thirds of all UN member states have joined the Court.

But difficulties persist. Twelve warrants of arrest issued by the ICC remain unexecuted. This includes the one against President Al Bashir of Sudan, who has yet to answer for unspeakable crimes that continue to terrorize the civilian population of Darfur. His recent close escape from justice in South Africa made headlines worldwide and fueled the rhetorical fires of doubters and detractors of the Court. 

What these critics tend to forget, however, is that the ICC does not have the same enforcement tools as national courts. There is no ICC police force chasing high-profile fugitives in every corner of the world. The failure of the outstanding arrest warrants lies at the feet of states that are not meeting their responsibility to execute them. It is not a failure of the Court.

Critics also charge that the Court is selective, prosecuting the crimes of some -- especially in Africa -- while ignoring those of others. But the fact remains that most investigations in Africa have been requested by the states themselves. And the Court cannot investigate crimes outside of its jurisdiction.

The perception of selectivity would quickly vanish if all countries that have not yet accepted the Court's jurisdiction were to come on board. Until then, the responsibility to prevent impunity lies with the UN Security Council. It has the power to authorize ICC investigations anywhere in the world. It can do so in places where horrific crimes are committed on a daily basis -- but the victims in Syria and North Korea, to name just two current crises, have been waiting for action by the Council way too long already.

History has been defined by war and conflict, with little regard for the laws of war and protection of civilians. The greater the atrocity, the greater the likelihood that the perpetrators would go unpunished. In the grand scheme of things, the Court is still young. And it needs our help. It is not the ICC's job to respond to politically motivated attacks, but ours. In standing up to these attacks, we stand with the victims of the worst crimes under international law. 

The perpetrators of these crimes must ultimately be brought to justice and face the victims of their actions. This should not be the exception, but the rule. We recognize the political and practical challenges of prosecuting high-level perpetrators for complex crimes. We recognize that the timing of justice also needs to be considered when pursuing peace. But we are determined to ensure that, in due time, justice catches up with those who have committed crimes that deeply shock the conscience of humanity. Without justice, there can be no inclusive and lasting peace. 

That is why we call on fellow politicians and on all citizens to use their voices to help: join the ICC. Let us end cycles of violence through the rule of law. Those committing crimes must be brought to justice -- before national courts, or, where these courts are unwilling or unable, the ICC. If we fail, it is not the failure of the ICC as an institution, but a failing of humanity. 

After the Holocaust, Rwanda and Srebrenica, we said "never again." We need more than words: we need action. This is our call to action.

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