Diplomats are meeting in Uganda this week to review the International Criminal Court (ICC). This summit hasn't received a lot of attention in the world press, even though it offers an important opportunity to reflect on the Court's track record and address its many shortcomings.
The founding of the International Criminal Court was a seminal point in the development of international law—finally, there exists a permanent court to address humanity's most heinous crimes.
That the ICC has survived this long is something of a miracle given George W. Bush's hostility towards it. Unfortunately, this is its only notable achievement. Many of the ICC's most prominent indictees, such as the Joseph Kony of the Lord's Resistance Army (LRA) and Sudanese President Omar al-Bashir, remain on the loose. Eight years after its founding, the ICC has yet to complete a single case—compare that to the criminal tribunals in Rwanda and Yugoslavia, which took only four years to complete their first rounds of cases.
World leaders apparently indifferent to the Court's mandate, along with a chief prosecutor who seems to care more about getting his picture taken with Angelina Jolie than doing his job, are the chief reasons the ICC is on its way to becoming irrelevant.
For all the rhetoric we hear about "never again," presidents and prime ministers have over the past few years applied this idea selectively.
For example, Uganda, the host of this week's summit, applauds the ICC for indicting the rebel LRA's leaders, but condemns the Court for indicting government officials in Sudan. Uganda is not alone in applying this double standard--most African governments, perhaps worried the ICC might soon start digging up the skeletons in their closets, have also tried to shield Bashir and his cronies from prosecution.
Meanwhile, Western ICC members have begun to view the Court's indictments as little more than bargaining chips to buy peace agreements. They are able to do so because the ICC's founding statute gives the Security Council the power to "defer" specific ICC indictments for 12 months. These deferrals can be renewed as many times as the Security Council sees fit.
Nominal backers of the Court, such as Britain and France, have told Sudan there are circumstances under which they would join China and Russia in supporting an effort to nullify the charges against Bashir. In 2008, Canada, often cited as a leading proponent of the Court, sent a secret memo to Council members saying it could "in principle" support a deferral of Kony's warrant if he signed a peace agreement with the Ugandan government.
These moves, which undermine the Court by turning it into a political tool rather than an instrument of international justice, have received endorsements from some surprising sources. For example, the International Crisis Group, a world-renowned conflict analysis organization led by former Yugoslavia tribunal prosecutor Louise Arbour, has repeatedly endorsed deferrals for both Kony and Bashir, provided they meet certain conditions.
The world's growing indifference toward the Court may be explained by the myriad shortcomings of its Prosecutor. Luis Moreno Ocampo, a former Harvard law professor and star of the Argentinian equivalent of Judge Judy, was thought to possess the right skill sets for the job.
Unfortunately, according both to many of his former staff and several leading jurists, he doesn't. Senior prosecutors have left the ICC in droves, reportedly because Moreno Ocampo's frequent efforts to massage his public image have led him to listen to PR advisers rather than lawyers, and as a result "cut corners" in his investigations.
He's made some of his worst blunders while investigating the Darfur conflict. In 2005, a UN Special Investigator on Darfur handed Moreno Ocampo a list of 51 people whom the investigator concluded could be charged with war crimes or crimes against humanity. But for reasons unknown, Moreno Ocampo has thus far only found time to charge the four most high-profile offenders.
And he hasn't even been able to get those four right. For example, he guaranteed the ICC would never be able to capture Bashir when he decided to make his arrest warrant public—now all the Sudanese president needs to do to avoid arrest is to stay out of ICC member countries. Antonio Cassese, a former chief justice of the Yugoslavia tribunals (and the UN's investigator in Darfur), noted that any prosecutor worth his salt would have known to seek a sealed warrant for Bashir's arrest, and only make the warrant public once Bashir set foot in an ICC member state.
Unfortunately, we're stuck with Moreno Ocampo until his nine-year term expires in 2012. Until he's replaced, we can only wonder whether his mistakes have done permanent damage to the ICC.
But this week's summit will give ICC members an opportunity to remind us why over 100 countries agreed to support the Court—the ICC, for all the problems it faces today, is a crucial symbol of our commitment bring criminals to justice, no matter what their title or rank is and no matter how powerful they are.
One way to do this is to come up with a plan to capture Joseph Kony, now lurking in the border regions of the central Africa and still committing monstrous atrocities against civilians. Congress has already made this a goal, and now it's time for the ICC's supporters to back Washington up.