Op-Ed Contributor: Can the International Criminal Court Be Saved From Itself?



Burundi government ministers celebrate on stage the country’s withdrawal from the International Criminal Court, in Bujumbura, Burundi, on Oct. 28.

Agence France-Presse — Getty Images

MADISON, Wis. — Last month, the International Criminal Court opened two investigations, including a sensitive one in Afghanistan, and a call has been made to allow it to intervene in Myanmar. But such a flurry of announcements mainly testifies to the impasse at which the court finds itself.

On Nov. 20, after 11 desperately long years conducting a “preliminary examination,” Fatou Bensouda, the prosecutor of the International Criminal Court, formally requested authorization to investigate war crimes and crimes against humanity in Afghanistan thought to have been committed since 2003, after the United States-led invasion of the country.

It is a contentious move: Afghanistan recognizes the court’s jurisdiction, but the United States does not, and the I.C.C. is expected to investigate acts by American soldiers and C.I.A. personnel, along with some by the Taliban and Afghan National Security Forces.

The court was controversial from the moment it was created in 1998: Major states, including the United States, China and Russia, opposed its foundational treaty, the Rome Statute.

The I.C.C. has since come under repeated attack for being too slow, too accommodating to powerful states, inefficient and sloppy. It has gone after only Africans, indicted at most a few defendants in each of its eight concrete investigations, secured only four convictions and even botched investigations.

In November, the prosecutor also disclosed that she has opened an investigation into crimes committed in Burundi since April 2015 by state agents and the ruling party’s youth wing. Two days after the I.C.C. judges allowed the investigation, Burundi became the first country to formally withdraw from the court. There is meager hope of a significant outcome.

The fact that crimes were committed in Afghanistan is hardly in dispute. The Taliban, the office of the prosecutor wrote, has led “a widespread and systematic campaign of intimidation, targeted killings and abductions of civilians” perceived to oppose them, while the Afghan Army and police showed “systemic patterns of torture and cruel treatment” of war prisoners, including acts of sexual violence. Such acts are also alleged against United States agents and servicemen, principally in the 2003-04 period.

The problem is that none of the targeted authorities is likely to cooperate. The Taliban can’t be bothered with international justice. Despite being an I.C.C. member state, Afghanistan has shown no sign of commitment to a court that has no means to enforce arrest warrants.

The United States will at best ignore the I.C.C. or at worst be actively hostile, as it was during the early years of the George W. Bush administration, when it pressured more than a hundred states, including Afghanistan, to sign bilateral agreements not to surrender Americans to the I.C.C.

The I.C.C. will be able to claim that it no longer targets only Africans, which seems its primary motive to open the investigation now. But it will keep showing its powerlessness.

In Afghanistan, the most probable outcome is that the I.C.C. will continue to expose its innocuousness and breed cynicism about international justice and the people in charge of it. The court will remain a court of least impact.

If the chief prosecutor is suddenly acting with such zeal, it is because she is under pressure to try to repair the tarnished image of her office and because the court itself is suffering from a major crisis of credibility.

There has recently been a spate of scandals about Mrs. Bensouda’s predecessor and former boss, Luis Moreno Ocampo. According to internal leaks disclosed by the French online newspaper Mediapart, Mr. Ocampo may have been involved not only in various opaque financial operations but also in setting up Laurent Gbagbo, the president of Ivory Coast from 2000 to 2011, for arrest even before he had any jurisdiction over the alleged crimes.

So how can the court be saved from itself? The situation in Libya may be an opportunity to do so. Libya isn’t a party to the court, but the United Nations Security Council gave the I.C.C. jurisdiction over the country in February 2011.

A few months later, in June 2011, the court indicted Muammar el-Qaddafi, the former leader of Libya, his son Seif and his intelligence chief, Abdullah Senussi, for killings and persecution of civilians demonstrating against the regime.

It has been unable, however, to obtain custody of anyone: Colonel Qaddafi was killed; his son and Mr. Senussi were sentenced to death by a Libyan court but now seem to enjoy some freedom and renewed political clout.

Yet the prosecutor has shown perseverance by issuing two additional arrest warrants this year. Recently she also reiterated her concern about crimes allegedly committed against migrants, mostly coming from other African countries and transiting through Libya on their way, they hoped, to Europe.

Last month, the French daily Le Monde published harrowing witness accounts of mass rape, notably against men, by rival Libyan factions. Video footage, taken by perpetrators and collected by a former Libyan prosecutor, purports to show men being sodomized with various objects.

Survivors who are now in Tunisia revealed that some migrants were used both as victims and perpetrators. In some cases they were brought to detention centers to be raped by Libyan detainees coerced to act under threat of death. A reliable source said that migrants were also used as perpetrators against female Libyan detainees, with the promise of being freed.

In this instance, the court has a better chance to have an impact, however symbolic. The prosecutor can build on more than six years of active investigations of Libya and is more likely to be able to act swiftly. It would directly respond to efforts by the Tunisia-based victims groups that have single-handedly gathered evidence in extremely difficult conditions for three years.

One of the key ways for the I.C.C. — and international justice as a whole — to regain legitimacy is to be moved by victims’ initiatives rather than by states or influential Western-dominated interest groups. It would help reshape the debate on rape as a weapon of war as well as on the barbaric realities of one of the most vulnerable and helpless populations: migrants. It would be the most logical first step toward responding, later, to the current outrage over straightforward slavery in Libya.

The court isn’t so much a chance to bring some measure of justice to Libya as Libya is a chance for the court to save itself. If the I.C.C. is to be a strictly symbolic court, as it is today, let it be so, but let it have a better focus.