Should the International Criminal Court Meet with alleged War Criminals?

ICC Prosecutor Karim Khan meeting with Libyan warlord Khalifa Haftar

Earlier this month, ICC Prosecutor Karim Khan met with notorious warlord Khalifa Haftar, widely suspected of international crimes in Libya. The meeting raises the question: should the International Criminal Court (ICC) Prosecutor meet with perpetrators of mass atrocities?

JiC readers will be familiar with this question (see our ‘perceptions of justice debate here). The most obvious answer is no; the Prosecutor should be prosecuting rather than glad-handing perpetrators. Yet throughout its existence, the ICC Prosecutor has met and been photographed with many alleged war criminals. At play is a difficult balancing act on the part of the Prosecutor that deserves greater attention and transparency.

Every ICC Prosecutor to date has sought the cooperation of atrocity perpetrators. In the early 2000s, then ICC Prosecutor Luis Moreno-Ocampo successfully negotiated a referral of northern Uganda to the Court with Ugandan President Yoweri Museveni. In 2003, Moreno-Ocampo announced the ICC’s first-ever investigation at a glitzy press conference with Museveni. That might not have been an issue if it wasn’t for the fact that many Ugandans and rights advocates have highlighted Museveni’s complicity in mass atrocities in northern Uganda and his interest in the ICC’s singular focus on his opponents.

In 2012, Fatou Bensouda succeeded Moreno-Ocampo. She met and posed for photos with former president of the Democratic Republic of Congo (DRC) Joseph Kabila, widely alleged to be responsible for international crimes. Bensouda also met with Rwandan leader Paul Kagame who stands not only accused of serious human rights violations and fueling conflict in neighbouring DRC but has fomented anti-ICC fervour among African leaders and undermined the Court’s work.

Khan, the ICC’s third and current Prosecutor, has continued the trend, meeting with Sudanese political and military leaders, including Abdel Fattah Al-Burhan and Mohamed Hamdan Dagalo. Both are accused committing human violations against Sudanese civilians during the country’s transitional period. Dagalo is also widely understood to have engaged in atrocities in Darfur, a situation that the ICC has had under investigation since 2008.

Fast-forward to last week. Khan met and posed for photos with Haftar, another alleged war criminal. In an Al Jazeera interview, Khan insisted that he met Haftar to inform him that he and Libyan National Army could be held responsible for its mass atrocities. The Prosecutor likewise told the UN Security Council that he “made it clear [to Haftar] that we have received evidence and information regarding allegations that of crimes committed by Libyan National Army (LNA) troops. I said that those would be and are being investigated.”  

Haftar has been found liable, by default, of war crimes in a U.S. court. The LNA leader also flatly refused to cooperate with the ICC when one of his commanders, Mahmoud al-Werfalli, was accused by the Court of extrajudicial killings of his opponents – a war crime Werfalli actively publicized on social media. It is not clear why the Prosecutor would need to meet personally with Haftar to communicate allegations against him and his allies.

So, why is the ICC Prosecutor risking the legitimization of alleged war criminals instead of trying to hold them accountable? 

The answer lies in a delicate balancing act. The ICC has no police force. Without the help of state leaders – including brutal ones – no one would end up in its dock. Each meeting and photo op with the likes of Haftar, Kabilia, and Museveni is an attempt to yield cooperation and get suspects into ICC custody. It was not by accident that Khan announced he was seeking new arrest warrants in Libya just hours after meeting Haftar. He clearly needs the LNA leader’s help. It is not an accident that when speaking the Security Council, Khan started by stating: “Cooperation is not perfect.”

This raises two questions. First, as Carrie McDougall puts it: “where would you draw the line?” Would the ICC Prosecutor meet with Vladimir Putin, Benjamin Netanyahu, or Donald Trump to ensure the surrender of other suspects to The Hague? We don’t know, because the ICC has never articulated a policy of who it would and wouldn’t meet with and under what conditions. 

Given the offence caused to victims and human rights groups by meeting with their aggressors, perhaps now is the time to be more transparent. As Patryk Labuda has written:

A policy on non-essential or sensitive contacts with state representatives could establish criteria for such meetings, including noble and uncontroversial goals such as securing cooperation in the execution of arrest warrants or encouraging accession to the Rome Statute.

The second question is whether ICC tete-a-tete’s with mass atrocity perpetrators actually yields results. The Prosecutor would more easily be forgiven if his meetings with some war criminals results in expeditious accountability for others. 

International criminal law is far from a perfect world, and it is important not to make perfect the enemy of the good. No Prosecutor wants to meet with alleged war criminals. But the ICC is not a human rights court; it is a criminal court. If glad-handing with certain unsavoury figures reduces the incidence of mass atrocities or leads to the prosecution of other powerful perpetrators, then it may be more easily justified. But if meeting sordid figures is about exercising what the Prosecutor calls ‘pragmatism’, then when will it pay off? Whether it is Sudan, Uganda, or Libya, it remains unclear – at best – that positive results have been achieved.

On the contrary, posing with the Prosecutor risks legitimizing sordid figures and suggesting that they are above the law. Not one person that has been photographed with the ICC Prosecutor has ever been held to account. If the justification of meeting with shadowy leaders is that they help make accountability for others more realistic, then it is time to demonstrate the wisdom of this approach, rather than ask victims and survivors to simply trust the machinations of the Prosecutor.

International criminal law can be a murky business. At times, the ICC needs help from figures who harm the very same victims that the Court claims to represents. Is it worth it? For some, the answer will always be no. For others, the answer depends on whether shaking hands with one devil will help hold others to account. On that score, the jury is still out.

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 ICC Prosecutor, International Criminal Court (ICC), Libya, Libya and the ICC, Libyan National Army, Transnational Criminal Law and tagged , . Bookmark the permalink.

3 Responses to Should the International Criminal Court Meet with alleged War Criminals?

  1. El Roam says:

    Important post or issue raised here indeed.

    So, here we have indeed a problem. We can’t find or trace intuitively, one and immediate answer to such apparent difficult issue.

    Then, we must turn to philosophy. That is why the latter exists:

    One way to look at it, is the following one:

    International norms (in legal terms) permits it (such meetings). Why ? Sovereignty, and immunity.

    International norms, grant immunity to head of states for example (CIL). The assumption, is, that morally, they (head of states) must be protected while travelling and discharging their duty. Even if severe suspicions are pending or raised against them. That is what the law, or international law, consider as morally correct (so far at least).

    So, one may argue, that it does legitimize such meetings. Until prosecuted and found guilty, they are to be considered as legitimate rulers. That is the law. They run their business of their states, as they find fit and deem and appropriate. As such, it is the moral duty of the prosecutor, if it is really necessary to meet with them, to actually meet them. They are the legal, legitimate, and sovereign rulers of their states.

    Another way to observe it, is the following one:

    Distinction between war crimes, and more severe violation of jus cogens or international criminal law:

    If a state is engaged in war. Legitimate war somehow. Committing war crimes, is inherent for conducting war. Nothing can change it. It does occur. Whether you want it or not. Whether you like it or not. One can’t totally avoid it.

    Yet, there is huge difference, between “conventional” war crimes, inherently perpetrated, and:

    Crazy atrocities. Genocides. Mass killings of uninvolved civilians. Raping. Torturing etc…..

    If it is about “normal” and conventional war (as horrific as it may sound) it is one thing one may argue. If it is about crazy atrocities, one should think twice.

    For the rest, we won’t stay young no more….

    Thanks

  2. Volodymyr Pylypenko says:

    Very disputable meeting and foto. As well as Mr. Khan’s explanation.
    Would any state or its society tolerate when their Prosecutor General met with the probable head of mafia shaking hands and smiling just to say he or his people be accountable in the future?

  3. Pingback: Should the International Criminal Court Meet with alleged War Criminals? — Justice in Conflict – Conflict Resolution

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