Bending the Arc

How to Achieve Justice at the International Criminal Court

A man kisses a poster of Sudan's President Omar al-Bashir during a protest against the International Criminal Court's (ICC) arrest warrant for Bashir in Khartoum, March 5, 2009.  Zohra Bensemra / Reuters

Since its creation in 2002, the International Criminal Court (ICC) has launched investigations in eight countries—the Central African Republic, Cote d’Ivoire, Darfur (Sudan), Democratic Republic of Congo, Kenya, Libya, Mali, and Uganda. The investigations have resulted in 22 cases against individuals accused of committing the most serious international crimes, including war crimes, crimes against humanity, and genocide. The ICC’s track record in trying these cases, however, has been less than stellar. Indeed, it has only convicted two Congolese warlords (and acquitted one, Congolese warlord Mathieu Ngudjolo Chui). The ICC has also been criticized for failing to bring many heads of state, including Sudanese President Omar Bashir (who stands accused of genocide in Darfur), to trial. The controversy surrounding the ICC’s trial history stems in part from its design. Unlike its forerunners in Nuremberg and Tokyo, the ICC does not have military forces at its disposal to arrest defendants. Instead, it must rely on the cooperation of state parties to do so. However, many African states—who could make arrests—have been reluctant to support the ICC, which they view as biased against the continent. In short, it is easy to view the ICC as a paper tiger. However, international prosecutions can be successful and the International Criminal Tribunal for the former Yugoslavia (ICTY) can provide the ICC with a model for how it might eventually succeed in bringing international criminals to justice.

International Criminal Court Chief Prosecutor Fatou Bensouda in The Hague, July 2012.  Jerry Lampen / Reuters

Current criticism of the ICC mirrors that which was levied against the ICTY in its early years. Like the ICC, the ICTY—which is now in the process of shutting down—has no police powers and operated in active war zones. International headlines lambasted the ICTY year after year for its failure to prosecute top leaders who allegedly played roles in the Srebrenica massacre. Nonetheless, and to the surprise of many, the court did eventually manage to secure the arrests of the region’

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