In a dangerous world, the ICC needs support

Monday July 31, 2017, The Globe and Mail

Last month, Fatou Bensouda, the chief prosecutor of the International Criminal Court, presented the tribunal’s 25th report on Darfur to the United Nations Security Council. Goodbye to the tea and crumpets of diplomatic niceties. Ms. Bensouda was angry. The council had referred the situation in Darfur to her office in March, 2005. Subsequent investigations had led to arrest warrants, most notably for Sudan’s President, Omar al-Bashir, in 2009 and 2010 for genocide, crimes against humanity and war crimes. To date, not one of the suspects had been arrested.

The prosecutor charged the Security Council with conspicuous silence over Sudan’s non-compliance with the council’s resolutions and for its failure to confront the growing number of countries refusing to arrest indicted war criminals.

Although the diplomats reiterated their support for international criminal justice, their flowery language could not disguise the council’s failure. Ms. Bensouda’s visit marked a UNSC low point. So much so that when the ICC recently found South Africa liable for failing to arrest Mr. al-Bashir when he visited in 2015, the court didn’t bother requesting further sanctions. There would clearly be no follow up.

Next summer will mark the 20th anniversary of the Rome Statute, the treaty that articulates the foundations of the ICC. July 17, 1998, was a breakthrough moment, for there had never before been an international tribunal to try the worst crimes known to humankind – crimes that were notorious, but unarticulated before the Nuremberg Trials named them after the Second World War. The 20th century had seen the worst and the best, the former being the ravages of two world wars, the latter being the effort to build international institutions and devise global law.

The celebrations were soon sidetracked. The al-Qaeda attack on the World Trade Center and the beginnings of war in Iraq; the subsequent rise of the Islamic State and the vicious war in Syria; the wave of refugees into Europe and the emergence of a populist push-back: All these incrementally shifted the focus of the international community away from accountability and justice. Today, suspected perpetrators are more likely to be assassinated than arrested. But the distraction has been shortsighted. As the world becomes increasingly dangerous, it is more, not less, urgent to confront criminal impunity and bring a sense of justice to victims. Not to do so encourages retribution and new cycles of war.

It’s not just the frozen politics of the UNSC that’s at fault. Since international justice exists within a cauldron of differing global interests, the Assembly of States Parties – the 124 countries that are responsible for governance of the court’s administrative and judicial bodies – appears to be similarly marginalizing the very institution it directs. For example, in 2016, the ASP’s Group of Seven, the large-economy countries that contribute at the highest level, threatened to vote for a zero-growth budget. They failed – but they did succeed in limiting growth, curtailing current investigations and impeding the start of new ones. Was that the point? Is there perhaps concern over how Donald Trump may respond to the court’s investigation into alleged U.S. military crimes in Afghanistan? The President has already shown his hand. In recent days, the Office of Global Criminal Justice, which helps create policy on issues surrounding war crimes and genocide, was summarily closed.

Canada, which prides itself on its role in creating the ICC, is a member of the G7, along with France, Germany and others. These countries are creating a double standard by touting the importance of the court, then underfunding its work. This will backfire. It will send a message to dictators, such as Mr. al-Bashir, that the tribunal’s strongest enthusiasts may be tempering their support.

In spite of these problems, the ICC carries on admirably and with integrity. It is paying increased attention to sexual violence in conflict, for example, and to the disturbing issue of child soldiers. For now, the threat of African withdrawals has somewhat subsided.

The negligence of the UN Security Council in failing to follow up on its own referrals is the most serious threat the International Criminal Court faces; beneath Ms. Bensouda’s angry rebuke to the world body ran a river of palpable distress. But financing comes a close second and Canada must take notice. Insufficient funding will diminish the perception that justice and redress remain possible. We cannot tout our liberal values on the world stage then fail to fully support one of humanity’s greatest achievements.

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