The ICC Still Has a Chance

Aryeh Neier is president emeritus of the Open Society Foundations. He was president from 1993 to 2012. Before that, he served for 12 years as executive director of Human Rights Watch, of which he was a founder in 1978. He worked 15 years at the ACLU, including eight years as national executive director. He served as an adjunct professor of law at NYU for more than a dozen years, and has also taught at Georgetown University Law School and the University of Siena (Italy). Since 2012, he has served as Distinguished Visiting Professor at the Paris School of International Affairs of Sciences Po.

For more than three decades, since the transition from military rule to democratic government in Argentina in 1983, efforts to secure accountability for great crimes committed by public officials and leaders of guerrilla forces have been at the forefront of the concerns of the international human rights movement. The result has been establishment of so-called “truth commissions” in nearly fifty countries, mostly in Africa and Latin America, to disclose past human rights abuses and assess responsibility; vetting processes, sometimes called “lustration”, primarily in some former communist countries of Eastern Europe, to bar those implicated in past abuses from certain public positions; and, most notably, criminal trials in national courts, ad hoc international tribunals and in the permanent International Criminal Court. While all these efforts show mixed results, including a few that are regrettable, in combination they have produced a level of accountability for severe abuses of power that is unprecedented and that would have been previously unimaginable. Though leaders of the most powerful states of this era have so far not faced such proceedings, that may not continue indefinitely. Certainly, we have reached a point where high officials of less powerful states would be foolhardy to assume they can commit great crimes and enjoy impunity for the rest of their lives. It is no longer unusual for some whose crimes are long past to face a reckoning.

Consider Latin America. A former military dictator of Argentina, Jorge Videla, died in prison in 2013 while serving a life sentence. Another former military dictator of Argentina, Reynaldo Bignone, who is also serving a life sentence, will probably also die in prison. Augusto Pinochet, the former dictator of neighboring Chile, avoided such a fate because the courts of his country eventually decided when he was in his late 80s that he was too weak, physically and mentally, to be put on trial. The former military dictator of another country in the southern cone of Latin America, Juan Bordaberry, died in 2011 shortly after he was sentenced to prison for thirty years. A former President of Peru, Alberto Fujimori, is now in prison, serving a 25 year sentence. A former military dictator of Guatemala, Efrain Rios Montt, was sentenced in 2013 to thirty years in prison for crimes against humanity and fifty years for genocide before his sentence was overturned on difficult-to-understand procedural grounds by the country’s Constitutional Court. Though he is now 88 and in poor health, supposedly he is to be retried. Jean Claude “Baby Doc” Duvalier avoided trial for the crimes he committed when he was “President for Life” of Haiti when he died last October of a heart attack at age 63.

All these cases came before national courts. In the case of Pinochet, three countries, Spain, the United Kingdom and Chile, all had a part, and it was only because of the actions of the courts of the two European countries that the Chilean courts were ready to act. The Pinochet case in Chile also led to many prosecutions of lower level military officers for their crimes during the sixteen year dictatorship in that country. In Chile and several other Latin American countries, hundreds of military officers are now in prison, serving sentences or awaiting trial for crimes committed more than a quarter of a century ago.

The ad hoc international criminal tribunals are also responsible for a high level of accountability. This is particularly true for the tribunals for the former Yugoslavia, for Rwanda and for Sierra Leone; and even a few of those responsible for the atrocious crimes committed by the Khmer Rouge in the 1970s are now serving prison sentences. In general, the ad hoc international tribunals, like most national courts that have dealt with such matters, have conducted good quality trials. Principles of due process have been maintained. There have been significant acquittals as well as convictions.

The great disappointment for human rights advocates who have promoted accountability has been the performance up to now of the International Criminal Court. Since coming into existence twelve-and-a-half years ago, it has secured just two convictions, neither involving leaders with the highest level of responsibility for the crimes in their country. By now, it is necessary to raise questions about the ICC’s failure to achieve more. Is the concept of a criminal court with worldwide jurisdiction fundamentally flawed, or are their critical shortcomings in its design? Are there faults of judgment or execution by the court itself, and particularly by the Office of The Prosecutor, that account for its poor showing? Have major powers doomed the court to failure by unwillingness to support its efforts? Or is the ICC just off to a poor start, as was also the case – for a much shorter period – in the case of the ad hoc tribunals for ex-Yugoslavia and Rwanda?   Will the Court start demonstrating its worth and significance and, over time, fulfill the aspirations of those who sought its creation?

David Bosco does not try to answer all these questions, but his even-handed, well-researched and astute study provides us the information and analysis we need to think about these questions, debate them and formulate answers. Some, like me, who are eager to see the Court succeed, may be reluctant to speak bluntly about such matters. We may fear that expressing criticism will further weaken a body we should defend against those who want it to fail.

Putting aside that concern, my view is that the ICC’s failure to achieve more up to now reflects a combination of factors. At least one, I believe, is inherent in the concept. That is, it is impossible to imagine that the Court would enjoy independent capacity to enforce its actions. It may only secure the presence of defendants through their voluntary appearance or through assistance by those who control the territories where defendants are located. Such assistance will often have to be provided as a result of pressure from the major powers. Similarly, the ICC cannot by itself compel the presence of witnesses or the production of evidence.   It is also limited in its independent ability to send investigators to sites where crimes took place. The likely consequence is that, in the absence of substantial support from the major powers, the ICC will mainly be able to deal with crimes committed by leaders who have been defeated militarily or overthrown within their own countries. The successes of the ad hoc international tribunals are attributable in large part to cooperation they eventually obtained from major powers, such as those that deployed troops in Bosnia under NATO following the war there. So far as national prosecutions are concerned, it has only been after democratic governments came to power that former military dictators and their collaborators were made to face judgment.

A flaw in the design of the Court that is probably impossible to overcome and, therefore, might be regarded as a flaw in the concept, is that without the involvement of the UN Security Council, the ICC only has jurisdiction in the territory of the 122 states that are members of the Court or over the forces of member states. Many states where abuses are common have not become members and are unlikely to do so. In the absence of a Security Council resolution, the ICC cannot address the crimes committed in states such as Syria or North Korea. As such states may have protectors among the permanent members of the Council with veto power, the ICC is unable to address many ghastly crimes that should fall within its jurisdiction. Unfortunately, there seems no feasible way to address this shortcoming.

Faults of judgment or execution by the Court itself ought to be less difficult to overcome.   David Bosco’s study reinforces my view that the Court might have fared better up to now if the first prosecutor had been somewhat wiser and somewhat bolder in dealing with the major powers. Mr. Bosco points out that the work of the court “appeared to be occurring within a major-power comfort zone.” This seems a fair assessment of the first Prosecutor’s unwillingness to initiate prosecutions involving Afghanistan and Colombia and in the war between Russia and Georgia. In each of these cases, of course, there were good arguments against prosecutions. On balance, however, I think the ICC would have been strengthened and justice would have been served if prosecutions went forward and – this is crucial – if the Prosecutor also were able to personify justice in speaking publicly on behalf of such actions. The first prosecutor of the Tribunal for the Former Yugoslavia, Richard Goldstone, through his ability to embody justice, enabled that body to acquire the credibility that ultimately made it a success. I think the current ICC Prosecutor may demonstrate that she too has the capacity to play such a role.

Can the Court recover from what has already been a rather lengthy poor start? I think so. At this writing, at least two major issues involving the Court’s jurisdiction are in the news. One involves the resolution of the UN General Assembly calling on the Security Council to refer North Korea to the ICC. Will China and/or Russia veto a referral?   The other involves the effort by Palestine to become a member of the Court, and implicitly, to get the ICC to deal with such matters as the Israeli settlements and the conflict in Gaza.   Though it is not possible to foretell the outcome of these developments, their public significance shows that the world has not written off the ICC. Despite shortcomings and obstacles, it still has a chance to demonstrate that it can make a major contribution to the cause of accountability. Those of us who wish to advance that cause should help the ICC do its best and, at the same time, acknowledge that there are significant limits on what it may be able to accomplish.