International Justice Day: Some Thoughts on The Year Ahead for the ICC

Greetings from Gulu, northern Uganda and happy International Justice Day to readers of Justice in Conflict!

Predicting which issues the Court will face in the next year may be a futile effort. Who, at this time last year, would have said that Ivory Coast and Libya would be under investigation by the ICC, that Tunisia, free of President ben Ali, would become a member of the Court, and that a regional conference on the ICC in Doha would see vehement proclamations of support for the Court from numerous Arab states? The past six months have perhaps been the most remarkable and dramatic in the ICC’s short history.

Here are a few thoughts on some of the challenges I believe that the Court will face in the next year as well as a few predictions.

1. Getting Indicted Leaders in the Dock
Whenever they are asked about why particular individuals like Gaddafi, al-Bashir and Kony remain free, the ICC and its most vehement supporters have typically fallen back on a line to the effect of: “Whether it’s tomorrow, in 10 days, 10 months or 10 years, these people will be brought to justice.” It is fanciful rhetoric and, indeed, many have given the ICC, as a novel institution, the benefit of the doubt. This leniency, however, will eventually run out if the Court is unable to put its biggest fish in the fishbowl that is an ICC courtroom. This is not only a challenge for the next year but a challenge that is ever-present at the Court.

I believe that over the next year, the ICC will put its first former head of state in the dock. Now, don’t go making travel plans to see Sudan’s Omar al-Bashir or Libya’s Muammar Gaddafi facing judges in the Hague. My prediction, rather, is that the former President of Ivory Coast, Laurent Gbagbo, will be brought to the ICC. The Court’s Pre-Trial Chamber is still deliberating on whether to open an investigation in Ivory Coast, but it would be politically irresistible for the ICC not to accept. Gbagbo has already been detained, meaning a transfer to the ICC would be relatively easy. The Office of the Prosecutor would no doubt rejoice in the ability to say: “the Court is able to Prosecutor head’s of state – just look at Gbagbo!” Given the nature of the post-election violence in Ivory Coast, particularly the fact that serious crimes were allegedly committed by both sides of the conflict, one-sided justice remains, of course, an ever-present danger.

2. Living with International Politics
The vast majority of the challenges which the ICC faces boil down to how the Court functions in a highly charged international political context. With two situations referred to it by the UN Security Council, the ICC’s relationship with the Council has never been more important. It is not obvious that the UN Security Council has not left the ICC “hanging” – referring difficult situations to the Court but doing little else to support or enhance the Court’s initiatives. Complicating matters further is that the ICC, rather than the Security Council, is the typical target for blame for the failure to achieve peace in Darfur and Libya.

Developments in the relations between the Court and the African Union (AU) will also be interesting to watch over the next year. While it is important not to treat the AU as a monolithic entity – sharp divisions exist regardless of “unanimous” communiqués – the increasingly popular line that the ICC “targets Africa” cannot be ignored. It has salience amongst many people here, regardless of its validity. Much of the heightened and negative rhetoric from key members and individuals in the AU are aimed specifically at the ICC’s Prosecutor – Luis Moreno-Ocampo. Jean Ping, the AU’s spokesman, has even said that the AU is not against ICC justice but against Moreno-Ocampo justice.

3. The Arab World and the ICC
If the first decade of the ICC has been defined by its relations with African states, the next ten years may well be defined by its relations with Arab states. The Arab Spring has unleashed a remarkable demand for justice. The Court recently held a regional conference in Doha, is investing significantly in training Arab lawyers to act as prosecution and defense counsel, and, of course, now has two of its primary investigations in Arab states – Sudan and Libya.

4. Electing a New Prosecutor
Despite the efforts of human rights groups to guarantee that the new Prosecutor is selected on the basis of merit rather than political criteria, this will not affect the view of ICC member-states. It is naive to believe that the calculus of many, if not most, states in this context will not be fundamentally political. Further, it is naive to believe that the ICC Prosecutor has been an apolitical figure himself. Surely apolitical figures don’t write in major newspapers to declare a President guilty of genocide before he has been convicted! The most likely scenario, as it now stands, is that Fatou Bensouda is selected as the next ICC Prosecutor. As a Ghanaian, Bensouda satisfies the AU’s demand to have an African Prosecutor; she is a woman which would bring gender balance to the position; as the current Deputy Prosecutor of the ICC, her election would bring continuity; and, by all accounts, Bensouda is more than capable of holding the post. Bensouda, in short, may satisfy both the political and apolitical requirements of the ICC’s post. If selected, look for international human rights groups to say she earned it on the basis of her experience and capability while diplomats and scholars recognize and admit the politics behind her selection.

5. Money, Money, Money
Unless the Court is diverted from its current financial trajectory, the ICC is headed for a crisis that will almost certainly affect its capacity to conduct its work and thus undermine its effectiveness and legitimacy. The boon of new cases in front of the ICC have to be paid for. Unless member-states and perhaps even the UN Security Council alter their attitude to funding the Court, how much money the ICC has at its disposable will become an admissibility threshold and selectivity issue: only when the Court has enough money will it accept new cases.

Making predictions is never easy and many wise people decide to abstain from doing it. Two things that I can guarantee, however, are that the next months will be a fascinating and critical time for the ICC.

If you have any predictions or thoughts on the challenges that may face the ICC in the next year, please share!

Happy International Justice Day!


This piece was originally posted at IJCentral

About Mark Kersten

Mark Kersten is a consultant at the Wayamo Foundation, a Senior Researcher at the Munk School of Global Affairs, and a law student at McGill University Law School. He is also author of the book, 'Justice in Conflict - The Effects of the International Criminal Court's Interventions on Ending Wars and Building Peace' (Oxford University Press, 2016).
This entry was posted in Elections, Fatou Bensouda, Funding, Human Rights, ICC Prosecutor, International Criminal Court (ICC), Ivory Coast / Côte d'Ivoire, Justice, Libya, Libya and the ICC, Middle East, Next ICC Prosecutor, Peace Negotiations, The Tripoli Three (Tripoli3), UN Security Council. Bookmark the permalink.

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