Today (June 15) the International Criminal Court (ICC) begins an important new chapter when the Gambian lawyer Fatou Bensouda takes over as prosecutor. Having served as the court's deputy prosecutor for the past nine years, Bensouda has solid credentials. Even so, she has a tough assignment ahead. Lately it has become fashionable to criticise the court, particularly for taking too long and costing too much. It is time for a more constructive dialogue on our future vision of international justice.
International justice is not cheap — the court's budget for 2012 is over €100m. But consider just some of the returns on our investment since 1993 when the U.N. Security Council created the international criminal tribunal for the former Yugoslavia — the first international war crimes tribunal since Nuremberg.
Africa focus criticised
In 1993, impunity for wartime atrocities was the norm. Today international justice is a regular feature of conflict resolution, and amnesties are no longer readily traded for peace; of the 161 people indicted by the Yugoslavian tribunal, none remain at large. In 1993 the idea of trying a head of state for war crimes seemed fanciful. Today Charles Taylor, the former President of Liberia, stands convicted of aiding and abetting a litany of gruesome crimes. In 20 years an innovative legal order has been designed, the infrastructure assembled and a new generation of specialised professionals trained. It would be foolish to withdraw resources just as we are poised to reap the efficiencies of this groundwork.
Bensouda will need support from states when it comes to arresting the court's fugitives, such as Omar al-Bashir, the Sudanese President, and Joseph Kony, the Ugandan Lord's Resistance Army leader. The court's inability to arrest these long-time fugitives must be resolved urgently. The Yugoslavian tribunal's clean record in bringing all its indictees to book shows the power of positive incentives when it comes to arresting fugitives from international justice. In particular, policies making European Union membership conditional on full cooperation with the Yugoslavian tribunal created powerful pressure — most recently in Serbia — to hand over indictees, culminating in last years' long-awaited arrests of Ratko Mladic and Goran Hadzic.
Complaints are frequently levelled at the ICC for focusing too much on African cases. One remedy is universal ratification of the court's statute. This would give the court jurisdiction over atrocities no matter where they happen and remove the technical hurdles constraining the court's case selection.
From Benazir to Guinea
Ultimately it is unrealistic to think the ICC can respond to atrocities the world over. Since 1993 the U.N. has set up more than 50 international fact-finding or investigation commissions to look into incidents including the 2007 assassination of Benazir Bhutto and the violent 2009 crackdown on demonstrators in Guinea. These commissions should be used as a platform for choosing the right follow-up action, whether technical help to the affected country, setting up hybrid national/international structures, or referring the situation to the ICC. Currently we build each commission from the ground up, which delays the deployment of investigators and potentially undermines the quality of the results. We have not yet developed standard procedures for collecting and storing evidence or conducting interviews.
As Bensouda begins her term, we should reaffirm our support for the court's work, while thinking constructively about the road ahead. The accountability vacuum of the past is not a viable alternative. We must craft a vision that maximises redress for millions of people worldwide who have suffered through unthinkable crimes. (Serge Brammertz is the prosecutor for the international criminal tribunal for the former Yugoslavia.) — © Guardian Newspapers Limited, 2012