The Court of Last Resort

Will the ICC's next decade see the court expand the stop-start gains of its first 10 years?

July 1 marks the 10th anniversary of the entry into force of the Rome Statute of the International Criminal Court (ICC), the first permanent international court with a mandate to investigate, charge, and try people suspected of genocide, crimes against humanity, and war crimes worldwide. At the ripe old age of 10, the court has become a high-profile institution on the world stage -- central to nearly every call for international justice for the most serious crimes. Nearly two-thirds of the United Nations' membership, 121 states, have ratified the ICC's statute, which legally obligates them to cooperate with the court. And the ICC is staying busy: The current docket includes the cases of, among others, three heads of state, a former vice president from a fourth country, and two presidential candidates from a fifth. In August, judges will consider sending former Ivorian President Laurent Gbagbo, now in court custody, to trial. Meanwhile, there are growing, but initial diplomatic efforts are under way to have those Syrian officials responsible for alleged crimes appear before the ICC.

At the same time, however, the court has been unable to take custody of several leading suspects such as Sudanese President Omar Hassan al-Bashir and the Lord's Resistance Army's Joseph Kony, who continue to reap murder and sow mayhem. In addition, the Office of the Prosecutor has failed to pursue any investigations outside Africa. In just the last few weeks, in the starkest crisis in the court's institutional life, an ICC defense lawyer and three staffers visiting Muammar al-Qaddafi's son, Saif al-Islam, have been detained by a militia in Libya that is holding him.

The ICC is also managing a large investigative docket and caseload. It is conducting investigations in seven countries -- in the Central African Republic, Democratic Republic of the Congo, Darfur in Sudan, Ivory Coast, Kenya, Libya, and Uganda. The Office of the Prosecutor is also considering whether to open investigations in Afghanistan, Colombia, Georgia, Guinea, Honduras, Nigeria, and South Korea. Meanwhile, the court's investigations have spawned renewed interest in bolstering national prosecution of serious crimes in Congo, Guinea, and Uganda. These initiatives could be a lasting spillover effect of the ICC as "a court of last resort."

Despite serious performance problems and the ebb and flow of support from governments, the court has made significant initial headway, giving rise to enormous expectations wherever the world's worst crimes occur -- as poignantly demonstrated by the Syrian protesters' signs last month that read "Assad to The Hague." Today, the International Criminal Court is the address for international criminal accountability. Yet as the court, with its daunting mandate, extends its reach, the flaws in its workings have become more visible.

The ICC differs in several essential aspects from the earlier ad hoc tribunals for the former Yugoslavia and Rwanda. These were created by U.N. Security Council resolutions. Coming as the result of a multilateral negotiation involving 150 countries over several years, the ICC was created in an extraordinary spate of judicial institution-building in the 1990s. As a result, at the outset, the court enjoyed a broad legitimacy and resonance with governments around the world. Countries that had recently made a difficult but successful passage from dictatorship to democracy, like South Africa and Argentina, saw their experiences and newfound commitment to accountability as empowering them to bring real value-added to the court's creation.

Despite its all-Africa concentration, the court, unlike the ad hoc tribunals, has a reach that goes far beyond one continent or subregion. The ICC is authorized to exercise its mandate over the "most serious crimes of concern to the international community" if either the state on whose territory the crimes occurred or the state of nationality of the accused has ratified the treaty and has failed to do its own investigations. This broad authority offered the promise of a more level international playing field for justice, and this prospect fueled widespread support.

Over the decade, though, this expectation has been undercut by the double standard of the world's most powerful states. Three permanent members of the U.N. Security Council -- the United States, Russia, and China -- have not joined the court. Through their non-ratification and veto power, they have insulated themselves from the ICC. They have also shielded the leaders of certain "client states." Syria, which has not ratified the ICC treaty, is just the most recent beneficiary. President Bashar al-Assad has been effectively insulated from the court because of Russia's veto. This double standard scars the global terrain on which the ICC works, marking it with an ugly unevenness where the same law does not apply to all. The court's authority, virtually with the exception of referrals by the Security Council, rests on the voluntary decision of states to join the "Rome Statute system," and with 121 members, the court's arm reaches far beyond a law-abiding handful of states. Unsurprisingly, those with the most egregious records -- North Korea, Sri Lanka, Zimbabwe, to name a few -- have not joined. Because of the limitations in this consent-based jurisdictional regime that states negotiated in Rome, there are sizable "impunity gaps" on the international landscape.

The prospect of a "more level playing field" was at the heart of the U.S. government's ambivalent relationship to this project from the outset. In May 1998, Defense Secretary William Cohen told a visiting Human Rights Watch delegation that he would not recommend that President Bill Clinton endorse the treaty without an "ironclad guarantee" that no U.S. service member would be brought before the court. At the Rome conference where the treaty was completed, the large U.S. delegation, which certainly made some important substantive contributions, also extracted major concessions in the name of "raising the comfort level in Washington" that weakened the court. The latter included insistence on the tight restrictions inherent in the consent-based regime. In the end, the United States voted against the final text along with Iraq, Israel, Libya, and China.

In part because of the unexpectedly large number of countries that signed the treaty by the deadline for signature, by December 2000 the Clinton administration, then in its last weeks in office, took the important symbolic step of signing. In an unprecedented diplomatic step, however, George W. Bush's administration sought to "unsign" the treaty and derail the court. When that backfired embarrassingly, the administration in 2005 adopted a more pragmatic approach on a situation-by-situation basis, supportive of ICC investigations in Congo, Darfur, and Uganda. The Obama administration has been much more positive and engaged. It has sent large observer delegations to the annual meetings of ICC states and has participated actively in those. Given the 40 years it took the U.S. Senate to ratify the treaty to prevent and punish genocide, however, Senate ratification is a very, very long way off. If there is a second Obama term, to maintain credibility in its pronouncements on behalf of justice, the administration will need to step up its engagement with the court.

In establishing a judicial institution with this extraordinary mandate, there were bound to be shortcomings. And there have been serious problems. Some are caused by external conditions, while others are performance problems internal to the workings of the court.

First among external challenges is the ICC's dependence on countries to execute its arrest warrants because it does not have a police force. This causes delays and obstacles in getting custody of suspects. Thus, President Bashir and two other ICC suspects who are Sudanese government officials remain at liberty as Khartoum unleashes a new round of atrocities in southern Sudan. Robust diplomatic backup by the states that have joined the treaty, as well as the U.N. and the European Union, is crucial to bringing about compliance with arrest warrants, but support has been more of an inconsistent, on-again, off-again quality, depending on political circumstances. Nonetheless, Bashir has clipped his travel schedule, avoiding both ICC and non-ICC states out of fear of arrest. In fact, the African Union decided to move its July summit from Malawi because President Joyce Banda threatened to arrest Bashir if he attended.

The status of Libya's ICC suspects reflects another glaring failure of support for the court. The Security Council's unanimous vote on Feb. 26, 2011, to refer Libya to the court generated a palpable sense of pride among the ambassadors in the council chamber. The resolution imposed a binding obligation on Libya to surrender Saif al-Islam al-Qaddafi and former intelligence chief Abdullah Senussi to the court. Yet, for the United States, Britain, and France, this obligation has vanished from official talking points. The word from Washington, London, and Paris is that justice for past crimes "is in the hands of the Libyan people." This is reminiscent of what American administrator Paul Bremer's people in Baghdad said to me in July 2003, discussing the modalities for trying Saddam Hussein.

The court faces other external problems. It inevitably applies its judicial mandate in highly polarized situations, and there is a real danger that it can be seen as a tool to advance political objectives. This risk is reinforced by the inconsistent support from states, especially the Western governments that champion accountability. The inconsistency can make the court seem less like a permanent institution of international justice and more like a light switch at the fingertips of a few permanent Security Council members. The patchy support fuels the argument of court opponents that the ICC is just another instrument in the diplomatic tool kit of the big powers. In July 2009, driven by Col. Qaddafi, the African Union called on its members not to cooperate with the ICC arrest warrants for Bashir. Qaddafi, who had long sought influence in Africa, was seeking to curry favor with regressive African governments and oppose, out of well-founded self-interest, greater accountability across the continent.

Finally, driven by economic concerns, several of the largest contributing states are trying to slash the court's budget at a time when demands on the ICC are growing. If successful, this "zero nominal growth" approach risks sacrificing legal defense, victim participation, and outreach. Ultimately, it could gut the court's ability to have impact in the communities most affected by the alleged crimes.

Other challenges include the court's own performance problems. The prosecutor's task was always going to be difficult. Having finished his nine-year tenure on June 15, Luis Moreno-Ocampo, while extremely energetic, put a premium on short-term results as opposed to taking a more strategic view. Yet he made important progress. At his request, the court issued unsealed arrest warrants for 19 suspects and voluntary summonses for nine. There have been significant flaws in prosecutorial policy, however, especially the absence of coherent practice in selecting cases. While proclaiming to target "those most responsible," the policy in a number of countries appeared highly selective. In Libya, for example, Moreno-Ocampo did far too little about the serious crimes committed by militias opposing Qaddafi. This seeming lack of impartiality left the bitter impression of "victor's justice."

Choosing cases to bring to trial that are representative of the underlying patterns of ICC crimes requires a broader vision than Moreno-Ocampo employed. In eastern Congo, for example, ethnic conflicts have killed as many as 60,000 people in more than a decade of fighting. Yet the Office of the Prosecutor has brought cases against only several militia leaders -- but no government officials or senior military officers believed to be implicated in atrocities. That has undermined local perceptions of the court's independence and impartiality.

For the court to be viable, proceedings must move expeditiously while remaining scrupulously fair to the rights of the accused and the interests of victims. The court's first trial -- on three counts of conscripting child soldiers in eastern Congo -- took three years and cost many millions of dollars, a prohibitively long and expensive process. Fortunately, the second and third trials of Congolese militia leaders are moving more efficiently, and the judges are looking to make changes in their procedures to better advance the interests of justice. This year, the ICC had a budget of roughly $144 million, a sum that was contributed proportionately by its state parties. Indeed, trying mass crimes and atrocities while respecting due process rights and reaching out to communities thousands of miles from The Hague is not cheap. But though this cost remains a much smaller sum than is required for military or peacekeeping operations, it is imperative for court officials to be accountable for their budgets and alert to efficiency.

Another problem, despite some initial headway, has been insufficient emphasis by some member states in seeing the court make its proceedings meaningful in the communities -- whether eastern Congo or northern Uganda -- most affected by the crimes alleged. For the rule of law to take root where it most needs to, the states that pay for the court, especially the biggest contributors, need to see the importance of the trials having an impact in the communities where the crimes were committed. This will mean a change in the prosecutor's selection of cases, outreach to victims, and programs through the court's Trust Fund for Victims to repair some of the harm that has been done.

The ICC's tasks would be formidable in one country, let alone the seven that have ongoing investigations. Drawing from the experiences of the previous ad hoc tribunals, a more comprehensive vision of the ICC's mission is, however, essential to fulfilling its mandate. There is a risk that as the court is asked to take on more cases in more countries that it will "hollow out" its approach and do less in each -- especially given the difficult economic times.

The increased financial pressure on the court coincides with the awakening of popular protest across the Middle East and North Africa. This upheaval presents both real opportunities and formidable obstacles for the court in extending the reach of justice to crimes against humanity and war crimes there. Until recently, the region, whether Arab states or Israel, had been immune to justice for these crimes -- an "accountability-free zone." Calls for accountability have never been so pronounced as they are today, but old habits die hard and impunity is not easily shaken. Given the high geopolitical stakes in the region -- oil, terrorism, Western fears of political Islam, and sensitivities over both Israel and Iran -- there is a danger that the more traditional interests of the most powerful states will get even greater weight in policy formulation, pushing justice to the periphery. We have already seen the worrying use of amnesty for senior officials implicated in serious crimes.

Tunisia's former president, Zine el-Abidine Ben Ali, was given haven in Saudi Arabia. Former Yemeni President Ali Abdullah Saleh and his family received a "get out of jail free card" for crimes committed in suppressing the opposition in Yemen. There is growing talk of a similar immunity deal to induce Syria's Assad to leave power. This could create a regressive spillover effect regionally and beyond.

The qualitative headway that has occurred in enforcing human rights through criminal justice would have been unthinkable even 10 years ago. Yet, the progress is fragile. Clear-eyed realism is needed to see the obstacles and opportunities for justice as they are. At the same time, that realism should be steeled by an optimism grounded in a sense of the distance already traveled. Every advance in the construction of the architecture of international justice went against the prevailing conventional wisdom of the moment. A shift of tectonic proportions has taken place, but the road ahead remains steep and is lined with challenges.


Democracy Lab

Mexico's Bright Light

Even as the country around it sinks into a morass of drug-fueled crime, Mexico City has remained surprisingly safe.

Let's say you've just been burgled in Mexico City. These days, you'd be wise to call the "Citizens Council for Public Security and the Prosecution of Justice in the Federal District." Located in a modest colonial-style building downtown, the Citizens Council will dispatch a legal expert to your home. He or she will file the crime report on the spot, using a laptop connected by teleconference with the prosecutor's office, at no cost to you. As a result, the authorities know that you have an influential middleman on your side. And you avoid a trip to the prosecutor's office, sparing you wasted hours begging for attention, shakedowns for bribes, and possibly even charges that you committed a crime yourself -- common hassles that render most crimes in Mexico unreported.

The Citizens Council initiative sprang from the chaos that existed in the late 1990s, when the Mexican capital was known as the nation's criminal epicenter. Mexico City was infamous for ransom, murder, and "express kidnappings" in which cabbies and accomplices hijacked clients and drained their ATMs. "It was ungovernable," says Fernando Schutte, a real estate executive who led a movement against crime that helped create the council.

Yet over the past decade, even as the country around it has descended into drug-fueled bloodshed, Mexico City has transformed itself into an unlikely crime-fighting success story. And what's more, that achievement has come amid a transition to democracy -- a process that has often been accompanied by a rise in lawlessness in many other parts of the world. It was just 12 years ago that Mexico, a historically divided and restive country, ended 71 years of one-party rule sustained by rigged elections and brutal repression. In the years since then, Mexicans have watched rival mafias capitalize on weak domestic institutions as they fight each other and prey on the innocent for access to the booming U.S. drug market. Some 50,000 citizens have lost their lives in the resulting violence.

But Mexico City has managed to escape the carnage. According to the United Nations, the capital's murder rate in 2009 was 8.4 homicides per 100,000 residents (approaching New York's 5.6). That contrasts starkly with a national rate of 14.6 nationwide the same year; last year that figure soared to 19.4. From 2002 to 2011, the capital's murder rate increased by a mere 2 percent; nationwide it was up about 47 percent over the same period, according to government figures. Where 163 cars were stolen daily in Mexico City in 1998, police say, 53 are stolen today. There's a feeling of comparative safety in the capital. "It's relative, but it's real," says Pablo Piccato, director of Columbia University's Institute of Latin American Studies, who researches the history of crime in Mexico City. People and businesses now move there from areas dominated by violent gangs. Once-ubiquitous pirate taxis were impounded and you can now hail a cab off the street. People use their iPads on the crowded subways.

The capital has achieved its success through a mix of creative coping strategies (like the privately funded Citizens Council) and political will. Unlike many other parts of the country, Mexico City has made a point of collecting taxes and investing the money in public safety. Unlike puny local security forces around the country, Mexico City has muscle. The city of 8.8 million people has three times more police -- about 1,061 cops per 100,000 population -- than the national average, according to watchdog group Mexico Evalua. You see them on foot, motorcycles, bicycles, or in cars every few minutes. Around 11,600 security cameras have been installed in the last few years. Court procedures now allow video evidence, reducing the need for witnesses, who can be scared off by crooks. The city has written procedures for police to follow, like how to arrest or use handcuffs, which are lacking in many municipalities. It has trained law enforcement staff to collect and analyze crime stats, which were an afterthought in the past, and made commanders answer for them.

The city's use of breathalyzers, which experts say have curbed drunk driving, typifies its aptitude for pragmatic, if not ideal, solutions. Former New York Mayor Rudolph Giuliani's consulting firm, hired by business leaders, recommended that all police carry them. Local city officials knew that that would be too expensive - and also that the devices could be manipulated by cops to extract graft from innocents. So they deploy them specifically at organized checkpoints with a doctor and human rights monitor on hand to verify the results. It's not as good as having one in every squad car, operated by honest cops, but it helps.

The focus now is on building trust in the police who, as in so many countries, served in the past mainly to protect elites from the people, and often bent the law accordingly. In police headquarters, amid screens showing incoming reports and video of key intersections, Mexico City's Undersecretary for Intelligence and Information Pedro Ibarra describes how cops started patrolling beats of just a few city blocks last year instead of the much wider areas they roamed before. The cops went door to door, giving residents the photos and cell phone numbers of district police chiefs. The program, says Ibarra, cuts reaction times, enables better analysis of trends, and reaps intelligence. He says police making their introductions recently encountered a baker who immediately complained about a local protection racket -- a scourge in much of Mexico. Police arrested the extortionists when they came to collect.

The private sector, meanwhile, has helped to refurbish streets, businesses, and housing in the once-frightening historic downtown, a focal point for people from around the city. A series of mayors, including incumbent Marcelo Ebrard (who hosted the Giuliani mission when he was security chief in a previous administration), have stressed the "recuperation of public spaces" by improving parks and other meeting areas to foster a sense of security. Mexico City also benefits from having a better welfare safety net than in other cities.

There are shortfalls obvious to any resident. The police emphasis is on preventing disruptive violence while other crime is tolerated or even abetted, like the drug sales at subway stops, ubiquitous black markets in counterfeit goods, and even the self-appointed attendants who control curbside parking for obligatory tips. "Crime is fought, but also managed," concedes Edna Jaime, Mexico Evalua general director. Police settle traffic infractions with streetside bribes. At other times they do nothing. "The thieves steal and the police are right next to them," fumes Victor Gomez, a clothes vendor in a working class neighborhood. Three cruisers were nearby but he said he wouldn't bother calling police and didn't when he received a common "extortion" call from people threatening his family. He just hung up.

Like many other places struggling in the wake of dictatorship, the rule of law remains weak. Mexico Evalua says the capital has twice as many prisoners awaiting trial and three times the number of reported rights abuses as the national average. (Amnesty International and the U.S. State Department have both recently faulted human rights abuse on the national level.) People pay bribes to get out of jail even when they have completed their sentences. It's hardly encouraging that, according Gustavo Fondevila, a justice specialist at the capital's CIDE research institute, the use of torture to extract confessions has gone from "systematic" a decade ago to "sporadic" now. Last year police were videoed holding a suspect's head under water.

The authorities allow scant transparency. Unlike in the United States, home of Miranda Rights, judges rarely review police actions. "There's practically no jurisprudence," Fondevila says. Police cliques, he says, divide up graft and "mafias," in a prosecutor's office infamous for abuse still confound reform efforts. But new investigators, brought in under tighter screening, often blow the whistle on what they see. Fondevila recommends broad purges. Others recommend outside inspectors with powers to cleanse the force. A grim reminder came this week amid reports that three federal police were shot and killed in the capital's airport while trying to apprehend fellow police suspected of ties to narcos.

The city clearly needs better cops. A couple years ago the city required police to have high school diplomas, but some 14,000 still don't. Again, that compares favorably with the dreadful picture around the country, where studies a few years ago showed that 70 percent of the country's local police had less than an 8th-grade education.

Yet despite all this Mexico City has managed to hold off the wave of massacre and mutilation afflicting much of Mexico. One theory holds that there's little incentive for gangsters to inflame the capital because it's not on strategic trafficking routes along the coasts or the U.S. border. That calculation could change. But experts say the criminals know too that they would pay a price for upsetting the capital's normalcy because of the concentration of law enforcement. And that has helped the capital to become a model, however imperfect, as the country weathers a perilous time.

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