Can The International Criminal Court Stay Relevant?

When the International Criminal Court ordered Kenyan President Uhuru Kenyatta to appear in The Hague next month to answer charges of crimes against humanity, foreign ministers from African Union nations protested. But the AU’s challenge of the ICC’s jurisdiction to prosecute sitting heads of state has brought to a boil a concern that has bubbled below the surface for years: What is the ICC’s true role?

For ICC supporters to dismiss African concerns as simply acquiescing to corruption and capitulating to despots and dictators misses the point. Thirty-four African countries were among the first to ratify the Rome Statue giving birth to the court by affirming its concept and purpose. Rather than being dismissive of African concerns, there should be a serious dialogue to consider the dilemma as they experience it.

Hardliners at The Hague who view this as a fight about institutional integrity miss the larger point regarding the court’s institutional worth.

There is an essential principle in this debate that the ICC and its backers seem to have lost or missed. In fact, the court’s greatest value is its threat to prosecute — not the power of prosecution itself. When a case must be litigated it means that all other means to mitigate damage and reach a decision serving a broader purpose have been exhausted.

The dilemma in which the ICC finds itself is ultimately not an issue of jurisdiction or justice. Hardliners at The Hague who view this as a fight about institutional integrity miss the larger point regarding the court’s institutional worth.

Beyond being the ultimate arbiter in cases of conscience, it is perhaps the most important leverage at the disposal of diplomats and other deliberative bodies in the effort to resolve conflicts or seek retribution for crimes against humanity. If the court prosecutes someone — whether or not that person negotiates or leaves office — it undermines the objective the ICC hopes to serve.

The ICC’s utility is to steer the world toward more just and reasonable outcomes and to be the ultimate arbiter when all else fails. This principle seems to have gotten lost in a series of missteps by the court.

When Liberia’s Charles Taylor was indicted and taken into custody several years ago, I argued that the court was headed down a primrose path. Taylor was available to be taken into custody when three African heads of state convinced him to step aside. No doubt the threat of ICC prosecution was leverage that might well have enabled them to seal the deal. As a result of the negotiations Taylor left office, Ellen Johnson Sirleaf was elected president, and Liberia was set on the path to recovery.

Based on his tenure in office, was Taylor a prime candidate for prosecution by the court? The short answer is yes. But it was a positive thing that the threat of prosecution actually resulted in him leaving office years before he might have. Abdicating office when he did meant that countless lives were saved and the country and region were spared untold years of continued misery. That trade-off was well worth it.

There was a similar dynamic in the case of Sudan’s Omar al-Bashir. There was a reason many in the international community called on the ICC to defer its indictment of Bashir. They had not gone soft on the banality that had come to characterize Bashir’s regime. It was because the threat of prosecution was the ultimate leverage to pass the referendum partitioning the country, North and South. A new nation was born and more needless suffering and senseless violence was avoided.

Far from furthering justice, the subsequent indictment of both Taylor and Bashir served to frustrate it. After each had acceded to international demands, one interpretation of the ICC’s actions is that it was a disincentive for anyone in power to leave office and an incentive to gain or maintain power by whatever means necessary.

Who knows whether Zimbabwe’s Robert Mugabe or Syria’s Bashar al-Assad might have stepped aside if Taylor and Bashir had been spared the “damned if you do, damned if you don’t” fate that was theirs.

What if the ICC had been in business in 1980 or 1994 and operating as it presently does?  I doubt if negotiated settlements back then in Rhodesia and South Africa could have been consummated. Surely, Ian Smith, P.W. Botha, and even F.W. de Klerk would have been candidates for prosecution given the standards applied in this era to Taylor and Bashir. Both Rhodesia and South Africa are better off because those settlements were reached.

Fast forward to the latest indictments and trial of Kenyan leaders and why some see the ICC’s continued pursuit of these cases as an overreach, at best, and misguided at worst.

The violence and deaths of more than 1,000 after the 2008 Kenyan election was tragic. But the results in the most recent election — and the subsequent ruling by Kenya’s High Court upholding the election — suggest that both the leaders and citizens want to put the past behind them and move forward as a nation in pursuit of a more promising future. That resolve was reflected in the united stand in response to the terrorists attack at the Westgate Mall in Nairobi.

Beyond being the ultimate arbiter in cases of conscience, it is perhaps the most important leverage at the disposal of diplomats and other deliberative bodies in the effort to resolve conflicts or seek retribution for crimes against humanity.

In the case involving the 2008 Kenyan election violence, a primary consideration was that ICC intervention might well be the key to Kenya healing itself and moving forward, preventing such violence in the future. Well, the country now has done that on its own. Violence was minimal in the aftermath of the most recent election and the nation has moved on. It is time for the ICC, like everyone else, to do the same.

If the ICC becomes perceived merely as a court perpetually in pursuit of a case, it will not be able to sustain popular support for its existence. If that support is lost, we will have lost a valuable asset in the quest to make the world a better place.

Anti-apartheid icon Bishop Desmond Tutu, in his defense of the court, posed a rhetorical question: If the ICC is weakened, "who will stop the next genocide?” One response is that if the ICC continues to act as if it is the only arbiter, rather than the final one in cases like this, it will have lost both the credibility and consensus to do so.

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