Putting an End to Impunity: The Promise of the International Criminal Court

Centuries-old windmills are joined on the Dutch horizon by groves of wind turbines. Each of these proud and practical structures testifies to human ingenuity and our insistence on progress. You can see both from the gleaming, modern tower that houses the International Criminal Court, where I just concluded a two month stint in the Office of the Prosecutor. For the first time in history, a permanent public prosecutor exists to investigate the world's most heinous crimes and an independent judicial body exists to judge the alleged perpetrators. A court like this was contemplated after World War Two. Now, after more than a half-century of letting political leaders literally get away with murder, a new model of international justice is taking shape.

Last week's PBS broadcast of the new documentary film "The Reckoning," brought the Court and its growing pains some added visibility. The ICC's most high profile challenge today is undoubtedly the Darfur cases. The "G" word -- genocide -- grabs the headlines. I am firmly convinced of what the Prosecutor and the Obama Administration believe: there is genocide in Sudan. But the ICC's final word on this matter will occur in a courtroom. Having seen it up close, I have confidence in what happens inside those four walls, one of which is entirely transparent, albeit made of bullet proof glass. That glass invites the witnessing eyes of a public that comes from all over the world to see due process and something approximating justice.

Given my confidence in the court itself, it is not the "G" word (genocide) but really the "I" word which I believe defines the ICC's central challenge today: "I" for Impunity. The court's statute calls it to "put an end to impunity" for perpetrators of the worst crimes and in doing so, to contribute to their prevention. How? The ICC can only take a case when a sovereign nation's justice system is unable or unwilling. Recently, for example, ICC Prosecutor Luis Moreno-Ocampo told Kenyan officials that if Kenya prosecutes those responsible for the ethnic bloodshed following 2007's contested election, he will drop his investigation. The incentive is obvious and the result should be that either way, impunity is not an option. Replicated across the globe, this model means the ICC can regularly succeed without filing a single charge. The winners are not only the beleaguered citizens of every country cursed by such crimes, but the entire international community for which the resulting stability can be a critical prize. Lawyers call this practical, strategic, and unprecedented model "complementarity." It is based on a slight but significant reformulation of the world's traditional deference to national sovereignty. Simply put, national sovereignty still governs, as long as national sovereignty does not include impunity for crimes against humanity.

Critics want the Prosecutor to back off, particularly in the Darfur case charging Sudanese President Omar Al Bashir with major crimes. China and blocs of Arab and African nations cite disruption of peace and humanitarian efforts. Provocatively, ICC Prosecutor Moreno-Ocampo has said that suspending the case to promote reconciliation would be like discovering Auschwitz and negotiating with the Nazis over how to run the camps. If the Court cuts a deal, its creation adds nothing new to the world's failed arsenal for protecting human security.

Charges that the ICC is obstructing peace or relief, or that it is racist or neo-colonialist? These are the sounds of the world struggling to understand a new model and blaming it for the colossal failures of old ones. None of them should stop the Court, but each underscores a cautionary note for the ICC: Stay focused. The Prosecutor and the Court can best contribute to progress through adhering to due process, maintaining stubborn independence, and modeling its novel blueprint for ending impunity. In The Hague, these imperatives appear very well understood. That important nations, including the United States, have yet to join the ICC is not a major factor right now. Secretary of State Clinton has stood by the Darfur case, which was, after all, referred to the ICC by the UN Security Council with the Bush Administration's blessing. If the Court and the Prosecutor deliver results, the world will come around. Thanks to the vision of its builders and thanks more than anything to the brave eye-witnesses to horror who testify in its courtrooms, the ICC is fitting right in among towering icons of the march of human progress.

Andrew Tarsy recently served an appointment as a Visiting Professional in the Office of the Prosecutor at the International Criminal Court in The Hague.