The International Criminal Court, after 15 years in existence, has established itself as the "court of last resort" that it was intended to be to ensure accountability for genocide, war crimes, and crimes against humanity. But the ICC, supported by 124 member states and seated in The Hague, Netherlands, isn’t without growing pains.
Some of those challenges, as well as successes, were discussed during a program titled, “International Criminal Law in a Retreating World,” sponsored by the ABA Center for Human Rights and ABA Criminal Justice Section on April 13 at the law offices of Nelson Mullins Law Firm in Washington, D.C.
Left to right: Former ABA president Michael S. Greco, ICC prosecutor Fatou Bensouda and former U.S. ambassador David Scheffer
The program featured speakers Fatou Bensouda of Gambia, prosecutor of the International Criminal Court since June 2012; and David Scheffer, former U.S. ambassador at large for war crimes issues during the Clinton administration and currently the director of the Center for International Human Rights at Northwestern University Pritzker School of Law.
The 90-minute program was moderated by Michael S. Greco, former ABA president (2005-2006) and current chair of the ABA ICC Project and its board of advisors.
OTP drives ICC progress
Bensouda said she has spent half of her nine-year term as head of Office of the Prosecutor, developing and implementing important initiatives to help the office, which she calls “the engine of the court,’’ become more effective and efficient in its operation. Changes included establishing a code of conduct for the entire staff of the OTP, both in the field and in the office; ensuring that before approaching the judicial process that the OTP is “as trial ready as possible.”
A primary focus has been in the OTP’s preliminary examination work, where some cases have lingered for a decade.
“As you know, the Office of the Prosecutor bring in the cases and we prosecute the cases,’’ she explained. One of the first places I wanted to concentrate on was in the preliminary examination work to see how much we would be able to advance them and come to a conclusion, whether it was to open an investigation or whether it is to close it. But there must be attention placed in this area to be able to give clarity to people. Some of the examinations have been there for over 10 years now. And it is crucially important to show that we are working on it and paying attention to it.” She mentioned cases in Georgia, Iraq, Afghanistan, Palestine and the Ukraine as well as other areas.
“We have made some progress but there is a lot of work to be done,’’ Bensouda admitted.
Government cooperation: A key to success
Scheffer, who since January 2012 has been the U.N. secretary-general’s Special Expert on United Nations Assistance to the Khmer Rouge Trials, shared his view on the state of international criminal justice, where it’s going, what are the impacts and what it needs to do the work.
He said that while international criminal law is under attack in some ways by skeptical leaders who scorn it, act against it and who do not comply with it that the institutions are remaining resilient. “Justice churns along day after day, week after week in the tribunals,” he said. “We have to remember that these international criminal tribunals are not intended to change the world in all of its aspects of violence and confrontation. That is the business of politics, the business of our military experts. . . . The tribunals can stand as examples, as potential deterrents, as educational institutions for future generations to look back and say yes in my society that tribunal had an impact.”
Scheffer said that over the last 25 years it is safe to say that there is no longer a presumption of impunity. But he said the challenge is bringing to justice those who continue to defy international law.
“Trying to bring individuals to justice is the business of the tribunals and there has to be a certain level of patience for it and a certain level of continuous U.S. governmental support for it,” he said, adding that the work of tribunals is long and tedious and may take years to come to fruition. “All of this is a multiyear project. Do not expect any instant results from any particular tribunal at all. Take the long-term view, understand that these tribunals are not the answer to all of our problem. That you still have to make good policy decision to stop fighting. The tribunals are not there to stop fighting. They are there to bring criminal justice.”
A key to the success of the ICC, both Scheffer and Bensouda agree, is state cooperation with the investigations and prosecutions. Unlike at the national level where prosecutors can expect that when we they conduct investigations and issue arrest warrants that the targets of those investigations will be arrested and brought to trial, the international criminal system is dependent on member states working with the ICC from the investigation stage to the execution of arrests warrants to trial.
Bensouda cited one case in particular, that of the president of the Sudan Omar Al Bashir, who was charged by the ICC in 2008 with genocide and crimes against humanity in relation to the Darfur conflict in western Sudan. He still has not been brought to trial because countries, even ICC member states, have refused to arrest him when on their territory.
“The work of the prosecutor cannot go on if the states fail to cooperate and fail to arrest individuals in order to bring them before the ICC,” Bensouda said. “When we deploy toe their territory to do our investigation we will need their logistical cooperation. This is how the system is. For us to work with each other. And that cooperation cannot just be in name. It has to be meaningful and timely.”
Scheffer said he views the problem of state cooperation as being a “lack of political will of the security council” to follow through referrals made to the international court.
Bias against Africa?
Bensouda was asked about the criticism the ICC has received from the African Union that the court since its inception has investigated eight situations involving alleged violations of international criminal law and all have related to situations in Africa. This is, the critics say, despite the Office of the Prosecutor having received information on alleged abuses in other parts of the world, such as Iraq, Afghanistan and Palestine.
Bensouda vigorously defended her office against these allegations of bias against African nations and explained that Africa played a key role in the ICC’s existence and the Rome Statute, with Senegal being the first nation to sign and ratify the treaty that created the international court. “This is symbolically very important and today I am proud to say that 44 of the 54 African states are part of the ICC,’’ Bensouda said. “This picture that is created that the ICC is going after Africa is not justified. The hard reality is the ICC is in Africa and has been working with and for the victims in Africa. There will be critics, detractors who want the court to fail because of their own self interests.”
Schaffer added that with respect to the concerns of African nations about the agenda of the international court that any one of the 44 African member states can refer to the ICC non-African situations. “They have the power to broaden the agenda of the court outside of Africa but they have never chose to use that power,” he said.
The International Criminal Law discussion was preceded by a panel on “U.S. policy on the ICC and International Criminal Justice.” That panel looked at what has worked and not worked with regard to U.S. policy on the ICC and other international criminal tribunals, and what should U.S. policy be under the administration of President Donald Trump. Panelists for that program included Janet Benshoof, president and founder of The Global Justice Center, New York, N.Y.; John B. Bellinger, III, partner, Washington, D.C.-based Arnold & Porter and former legal advisor at the U.S. Department of State; Stephen Lamony, senior advocate for Africa at Amnesty International, New York, N.Y.; and moderator Sara Elizabeth Dill, director of criminal justice standards and policy at the ABA Criminal Justice Section.