The ICC’s Credibility Depends on Much More than Just Power Politics

David Tolbert has served as president of the International Center for Transitional Justice since 2010. Previously he served as registrar (assistant secretary-general) of the Special Tribunal for Lebanon and prior to that was assistant secretary-general and special expert to the United Nations secretary-general on United Nations Assistance to the Khmer Rouge Trials. From 2004 to 2008, Mr. Tolbert served as deputy chief prosecutor of the International Criminal Tribunal for the former Yugoslavia (ICTY).

David Bosco’s Rough Justice: The International Criminal Court in a World of Power Politics is certainly an interesting and sometimes riveting read, even to someone who knows the story well. He clearly had considerable access to the principal actors, both internal and external, in the continuing drama around the International Criminal Court (ICC) as well as the trials and tribulations of the ICC’s early years.

As a matter of analysis, I find quite useful Bosco’s conceptual framework for examining the development of the ICC’s relationships with key state powers. In particular, his description of the United States’ up-and-down (or rather down-and-up) approach to the ICC fits well with his framework of, e.g., marginalization, control, acceptance. While Bosco devotes much of the book to the signaling between the ICC (primarily the ICC Prosecutor) and the United States, he does address the Court’s relationships with the other permanent members of the UN Security Council (P5) and other key states to good effect. Thus, on its own terms, the book contributes to our understanding of the relationships – missteps, mistakes and all – and the political dynamics between the Court (primarily the Prosecutor) and key states, mainly the US, and how current accommodations were reached.

While Bosco tells this story well, his framework and approach have their limits. The support of major powers for an international body, such as the ICC, particularly one that has the capability to touch state power so directly, is important perhaps even a sine qua non to the success of such a body. Nonetheless, for the ICC to make a longer-term difference, it will need to rely on the soft power of its own credibility, legitimacy and respect. These qualities go well beyond state diplomacy or being in the good graces of the great powers. In some (if not many) ways the involvement and association with, much less the accommodation of, great powers can have a counteractive effect, as the Court may be portrayed by its enemies as a tool of the great powers or, more generally, of the West (or the western powers). Even though it is a smear, the rhetoric that the Court is acting as a cat’s paw for western powers in the case of Kenya and beyond has clearly been effective. Thus, today the challenge facing the Court is less about acceptance by the great powers and more about finding ways to strengthen and build its credibility and legitimacy. Ultimately, a judicial institution must have credibility and legitimacy, or perhaps more colloquially – respect, to carry out its job effectively. This means not only being seen as independent of political control but also developing credibility with those affected by its judgments—above all, victims and affected communities—and international civil society, including scholars, academics and journalists.

The question then is how does the Court build the credibility and legitimacy it needs to do its job more effectively and make a difference in a world full of atrocities? In this respect, there ought to be both short- and long-term strategies. With regard to the latter, there are some pertinent examples of courts and tribunals that have recovered from initial difficulties and self-inflicted wounds and examples of some that arguably have gone the other way. The International Court of Justice lost considerable credibility, and even went some years without any cases, following its mishandling (to put it politely) of the Southwest Africa/Namibia cases; but it subsequently recovered and now has a full docket. On the national level, the US Supreme Court went badly off the rails a number of times with decisions such as the Dred Scott case and Plessy v. Ferguson but re-established its reputation in the area of civil rights with Brown v. Board of Education, among other notable cases. Arguably, the International Criminal Tribunal for the former Yugoslavia (ICTY) has gone in the opposite direction, establishing a significant amount of credibility with its handling of a number of earlier cases, including Tadić, only to run amok with its controversial and questionable decisions in Gotovina and Persić (in the latter with contradictory decisions from the ICTY Appeals Court on the same substantive issue).

If we examine these and other examples closely, it is clear that the qualities and abilities of the judges are key to establishing the credibility of a judicial institution. Indeed, one can argue that the great courts have competent and often great judges. Bosco himself alludes to the barriers to having a stronger group of judges when he notes ICC judges who came to office through apparent horse-trading, with limited (and in one case no) judicial qualifications or training; there are other cases of woefully underqualified judges being elected primarily because they come from important countries. Another area of contention that has hampered the ICC is procuring intelligence information. While these disputes are no doubt complex, they could have been addressed with a bit more judicial creativity (the ICTY’s Rule 70 approach comes to mind) in a manner that would contribute more strongly to the cause of justice.

Bosco notes a number of issues that plagued the Office of the Prosecutor. One was the propriety of using intermediaries in cases investigated in the Democratic Republic of the Congo, which led to serious questions about the collection of evidence. A second was the lack of a tracking team for locating fugitives, which had proved very useful at the ICTY. A third was not putting senior trial lawyers in charge of investigations (apparently this recently has changed), which at the ad hoc tribunals considerably strengthened investigations and indictments, an area where the ICC has struggled. These were all elements that either undermined confidence in the Office of the Prosecutor or, arguably, hampered its efficiency.

The Registry also has a number of practices and inefficiencies that are so widely recognized that the current and relatively new Registrar undertook a significant project, a ‘ReVision’ (of the Registry), the title of which speaks for itself.

One can identify other elements of ICC practices ripe for reform and change, as reflected in an extensive and probing recent report by a group of experts. There are no magic bullets, but steps can be taken to increase the credibility of the institution as whole.

So, while Bosco is right in asserting that the practice of high politics is an important and essential part of the ICC and that its leaders, particularly the Prosecutor, need to manage those relationships (particularly the signaling that goes back and forth), this is not enough for the Court to begin to fulfill its mandate and deliver on its promise. In my view, this is the key point: it is one thing to be credible to governments, but another to move beyond concerns about the P-5 and other important powers to demonstrate credibility to victims and affected communities and ultimately to build credibility among the international public.