August 21, 2008

Early yesterday morning, International Criminal Court Prosecutor Luis Moreno Ocampo announced his decision to begin looking into war crimes allegedly committed by Russian and Georgian troops in South Ossetia.  The announcement, though misguided, was appealingly symmetrical .  After all, if overreaching by one international body was partly responsible for this mess (when the United States and Russia compete to prove how useless NATO has become, nobody wins), maybe overreaching by another could fix it again.

Symmetry aside, there is every reason to think that ICC involvement in Georgia would only make matters worse.  To begin with the most simple reasons, the ICC has yet to succeed in convicting a single war criminal.  The case against Thomas Lubanga, the first ICC case to come to trial, was halted in June after Ocampo violated ICC regulations by failing to share evidence with the defense. 

Also, the ICC only has jurisdiction in countries where the state in question is “unwilling or unable genuinely to carry out the investigation or prosecution” in its own court system.  To get a sense of Ocampo’s standards for “willing and able”: the Colombian judiciary counts.

Even leaving aside Ocampo’s own shortcomings as a prosecutor, there are more important reasons to oppose ICC involvement in Georgia that have to do with the nature of the court itself.  The motivating idea behind the ICC’s creation was the hope that punishment for war crimes might be isolated from political concerns.  Ideally, neither an individual’s high position nor his country’s international entanglements would ever again prevent justice from being done.  Where had once been wrangling, compromise, and eventual impunity would now be plain statues, impartial investigation, and legal finding of fact.

Ocampo has embraced this vision of the ICC as a way to bring the impartiality of law to the problem of crimes against humanity.  “It is the prosecutor’s job to follow the evidence wherever it leads,” he has said.  “With the International Criminal Court, there is a new law under which impunity is no longer an option.”

But reality has proved to be more complicated.  Consider the situation in Sudan, one of four countries currently under active investigation.  Three years after the UN Security council referred the situation in Darfur to the ICC, matters stood at an impasse.  The court had indicted Sudanese state officials Ahmed Heroun and Ali Kushayb, and President Omar al-Bashir had refused to turn them over.  Ocampo then, in a surprising move, asked the court to issue an indictment for genocide against Bashir himself. Bashir has declared that he is unwilling to turn over either himself or his subordinates to Ocampo’s prosecution. Without his cooperation, the ICC will be unable to arrest any of its indictees unless they leave Sudan.

It was bold for Ocampo to go after a sitting head of state, but his ambitious decision has created a situation in which it may be possible for Bashir to have his own prosecution put on hold in exchange for surrendering Haroun and Kushayb.  Reuters reports one diplomat as saying that, were Bashir to cooperate, ‘the prosecutor’s attitude might change.” Another indication that a compromise with Bashir is on the table is the fact that Ocampo has made his desire to arrest the sitting president very public.  When the ICC issued an arrest warrant for Jean-Pierre Bemba of the Democratic Republic of the Congo, it did so under seal; Bemba’s indictment was not made public until he was in custody.  Making his intentions public won’t help Ocampo achieve Bashir’s actual arrest”€”quite the opposite”€”suggesting that his motivations are political.

Using an indictment as leverage might help to achieve a successful resolution, but it fundamentally undermines the thing that makes the ICC different from other international organizations. In a situation as complicated as the current conflict in Georgia, it is likely that the ICC would end up once again mixing the rhetoric of impartial legalism with the reality of political maneuvering.  This could only work to everyone’s disadvantage, or, rather, to the advantage of those who prefer an ICC without credibility.


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