On June 15th 2012, the International Criminal Court will swear in its second Prosecutor, Fatou Bensouda, at its headquarters in The Hague, just weeks before the Court’s tenth anniversary on July 1st. Bensouda takes the reigns at an important juncture: a four-person ICC delegation sits detained in a Libyan prison, the ICC’s arrest warrant for Sudanese President Omar al-Bashir has not resulted in his capture, a state-sponsored slaughter of civilians continues in Syria and the court, having spent $900 million dollars over the last ten years, has successfully prosecuted only one individual. For all its symbolic importance and dedication to “never again," the International Criminal Court has been at best an awkward institution of the international community, and at worst, an ineffectual instrument of politics-by-other-means.
As Eric Posner recently pointed out, the International Criminal Court’s focus on genocide, crimes against humanity, and war crimes seems incongruous with its jurisdiction—few authoritarian or military states have acceded to its Statute. This, too, is not without complication, as we saw in the declaration lodged with the Office of the Prosecutor by the Palestinian Authority. The Prosecutor rejected the case after three long years of fruitless and very public debate over whether the Palestinian entity constituted a state under international law. Some scholars have argued that current prosectuor O’Campo entertained the declaration as an end-run against the existing Middle East peace process, or simply to counteract criticism that the court is biased against Africa. The court was not established to decide complicated international policy matters nor was it designed to be a tool of the diplomatic process. Additionally, individuals whose status is unclear under international law—who, not coincidentally, are often those most exposed to crimes against humanity—may still lack an institution capable of addressing their grievances.
Accused parties fare no better with the Court. Criminal courts are not defined merely by the pursuit of justice for the victim(s)—the accused must be equally assured of justice. As David Davenport and Larry May have argued, criminal accusations against an individual, particularly at the international level, are so serious that the international community must be extremely clear up front about what constitutes a crime under international law. If the Rome Statute can be so unclear about jurisdiction that it takes a Prosecutor three years to decide if he has the authority to launch an investigation, what assurances does the Court provide that the crimes themselves are not also up for lengthy debate and creative interpretation?
The history of the International Criminal Court begins at Nuremberg where Justice Robert Jackson, as William Shawcross (the son of the lead prosecutor at Nuremberg) points out, hated the idea of a “show trial”. On April 13th, 1945, at a speech to the American Society of International Law in Washington D.C., Jackson stated that no one should be put on trial unless the international community is willing to hear everything the person has to say in their own defense. Further, “the ultimate principle” he said, “is that you must put no man on trial under the forms judicial proceedings if you are not willing to see him freed if not proven guilty.”
Posner rightly identifies the absurdity of a Court that spends nearly a billion dollars to complete a single trial. However, the Court’s absurdity extends beyond return on investment—the Court appears structurally unable to ensure justice for victims or the accused, and it lacks jurisdiction over the people and entities who are most in need of a judicial forum. If Fatou Bensouda hopes to fulfill the international community’s ambitious promise of a decade ago, she will work to focus the Court’s efforts on events that are truly justiciable, and she will resist the temptation to exercise her authority in a way that would influence matters of international policy.