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| Is the War Crimes Court Still Relevant? | Is the War Crimes Court Still Relevant? |
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| UNITED NATIONS — Fatou Bensouda, chief prosecutor for the International Criminal Court, is about to face her toughest trial yet: to demonstrate that the court has enough muscle to tackle the gravest human rights cases, even if it means confronting the world’s most powerful countries. | UNITED NATIONS — Fatou Bensouda, chief prosecutor for the International Criminal Court, is about to face her toughest trial yet: to demonstrate that the court has enough muscle to tackle the gravest human rights cases, even if it means confronting the world’s most powerful countries. |
| Since its inception in 2002, the court has been laden with a growing pile of cases, defiant government authorities, and a United Nations Security Council that has called for investigations but done little to advance them. The court has convicted a tiny fraction of those it has charged. Many more have eluded arrest altogether, and the prosecutor has battled charges of bias against African leaders — a charge that Ms. Bensouda, a Gambian, has strenuously rebutted. | Since its inception in 2002, the court has been laden with a growing pile of cases, defiant government authorities, and a United Nations Security Council that has called for investigations but done little to advance them. The court has convicted a tiny fraction of those it has charged. Many more have eluded arrest altogether, and the prosecutor has battled charges of bias against African leaders — a charge that Ms. Bensouda, a Gambian, has strenuously rebutted. |
| Ms. Bensouda, who assumed her job in June 2012, has had to acknowledge her own limitations in recent months. In December, she announced that she would “hibernate” the genocide case against Sudan’s president, Omar al-Bashir, because she had been unable to secure his arrest. The same month, she said she would drop charges against Kenya’s president, Uhuru Kenyatta, for his role in the violence that swept the country following the 2007 elections, citing his government’s lack of cooperation with her office. | Ms. Bensouda, who assumed her job in June 2012, has had to acknowledge her own limitations in recent months. In December, she announced that she would “hibernate” the genocide case against Sudan’s president, Omar al-Bashir, because she had been unable to secure his arrest. The same month, she said she would drop charges against Kenya’s president, Uhuru Kenyatta, for his role in the violence that swept the country following the 2007 elections, citing his government’s lack of cooperation with her office. |
| The year ahead brings far more formidable challenges and with them the opportunity to assert the relevance of the court. | The year ahead brings far more formidable challenges and with them the opportunity to assert the relevance of the court. |
| The Palestinian situation is no doubt the most politically delicate item on her agenda. Palestine joined the I.C.C. last week, and authorized the prosecutor to scrutinize alleged crimes committed on Palestinian land since last June, before the last Gaza conflict began. Israel and its principal ally, the United States, have forcefully criticized the Palestinian move, and even a preliminary inquiry by her office is likely to face a pushback, including from Washington. | The Palestinian situation is no doubt the most politically delicate item on her agenda. Palestine joined the I.C.C. last week, and authorized the prosecutor to scrutinize alleged crimes committed on Palestinian land since last June, before the last Gaza conflict began. Israel and its principal ally, the United States, have forcefully criticized the Palestinian move, and even a preliminary inquiry by her office is likely to face a pushback, including from Washington. |
| Additionally, Ms. Bensouda has said she is looking into allegations of torture by American soldiers in Afghanistan. There’s a chance, albeit slim, that she could go further and open an official investigation. | Additionally, Ms. Bensouda has said she is looking into allegations of torture by American soldiers in Afghanistan. There’s a chance, albeit slim, that she could go further and open an official investigation. |
| Likewise, she risks riling the Kremlin if she begins a formal investigation into allegations of ethnic cleansing in the former Soviet republic of Georgia, as many I.C.C. watchers predict. And China is already trying to block scrutiny by the court into human rights abuses by its ally North Korea, after the United Nations General Assembly voted late last year to refer the case to the I.C.C. | Likewise, she risks riling the Kremlin if she begins a formal investigation into allegations of ethnic cleansing in the former Soviet republic of Georgia, as many I.C.C. watchers predict. And China is already trying to block scrutiny by the court into human rights abuses by its ally North Korea, after the United Nations General Assembly voted late last year to refer the case to the I.C.C. |
| “All these situations would be much more complex in geopolitical terms for the court and might bring it into confrontation with major powers in a way it has not been to this point,” said David Bosco, a professor at American University who studies the court. | “All these situations would be much more complex in geopolitical terms for the court and might bring it into confrontation with major powers in a way it has not been to this point,” said David Bosco, a professor at American University who studies the court. |
| Neither China nor Russia nor the United States has signed the treaty that created the court, but as veto-wielding members of the Security Council, all three can exert influence, chiefly by protecting their allies from its reach. | Neither China nor Russia nor the United States has signed the treaty that created the court, but as veto-wielding members of the Security Council, all three can exert influence, chiefly by protecting their allies from its reach. |
| Only recently, the court was dismissed as ineffective, or even irrelevant. It was ambitiously designed to try the gravest offenses: genocide, crimes against humanity and war crimes. But the tribunal, based in The Hague, has been hamstrung from the start. It does not have the power to arrest those it indicts, nor to force defiant government authorities to cooperate. It can initiate cases against countries that have signed up — 123 states as of April 1, when the Palestinian accession to the court starts — or if the Security Council refers cases to the tribunal. | Only recently, the court was dismissed as ineffective, or even irrelevant. It was ambitiously designed to try the gravest offenses: genocide, crimes against humanity and war crimes. But the tribunal, based in The Hague, has been hamstrung from the start. It does not have the power to arrest those it indicts, nor to force defiant government authorities to cooperate. It can initiate cases against countries that have signed up — 123 states as of April 1, when the Palestinian accession to the court starts — or if the Security Council refers cases to the tribunal. |
| Yet the court has had trouble persuading witnesses to come forward, been criticized for taking too long to investigate and seen its caseload grow beyond its resources, court officials say. The court has issued 30 arrest warrants, but won only two convictions. | Yet the court has had trouble persuading witnesses to come forward, been criticized for taking too long to investigate and seen its caseload grow beyond its resources, court officials say. The court has issued 30 arrest warrants, but won only two convictions. |
| In addition to the Kenyan government’s refusal to cooperate in the case against Mr. Kenyatta, Libya has failed to hand over Saif al-Islam, who was referred by the council to the I.C.C. And Sudan’s president, Mr. Bashir, also referred by the council, has traveled across Africa, eluding arrest. | In addition to the Kenyan government’s refusal to cooperate in the case against Mr. Kenyatta, Libya has failed to hand over Saif al-Islam, who was referred by the council to the I.C.C. And Sudan’s president, Mr. Bashir, also referred by the council, has traveled across Africa, eluding arrest. |
| Eight times, Ms. Bensouda said, the court had written to the council, asking for help in securing the arrest of those indicted on charges of crimes in Darfur. The council has thus far not replied. Russia is a staunch supporter of the Bashir regime. | Eight times, Ms. Bensouda said, the court had written to the council, asking for help in securing the arrest of those indicted on charges of crimes in Darfur. The council has thus far not replied. Russia is a staunch supporter of the Bashir regime. |
| “Women and girls continue to bear the brunt of sustained attacks on innocent civilians, but this council is yet to be spurred into action,” Ms. Bensouda said in her latest briefing, in December. “Victims of rapes are asking themselves how many more women should be brutally attacked for this council to appreciate the magnitude of their plight.” | “Women and girls continue to bear the brunt of sustained attacks on innocent civilians, but this council is yet to be spurred into action,” Ms. Bensouda said in her latest briefing, in December. “Victims of rapes are asking themselves how many more women should be brutally attacked for this council to appreciate the magnitude of their plight.” |
| In the year ahead, Ms. Bensouda could take on other high-profile cases. She has opened a preliminary examination of the role of British soldiers in Iraq. She has also invited countries to refer their own citizens involved in committing atrocities in the ranks of the Islamic State group. That could include countries like France and the Netherlands, I.C.C. members whose nationals have joined terrorist groups in Iraq and Syria. | In the year ahead, Ms. Bensouda could take on other high-profile cases. She has opened a preliminary examination of the role of British soldiers in Iraq. She has also invited countries to refer their own citizens involved in committing atrocities in the ranks of the Islamic State group. That could include countries like France and the Netherlands, I.C.C. members whose nationals have joined terrorist groups in Iraq and Syria. |
| Yet the Palestinian issue will require the greatest deliberation, legal experts say. The prosecutor must decide whether to investigate allegations of war crimes during the Gaza war, the Israeli settlement policy, or both. Both raise novel legal issues, international criminal lawyers say, and the prosecutor is likely to move cautiously — “not because they are politically sensitive,” wrote Alex Whiting, one of her former colleagues at the I.C.C., “but because critical support for its work on these cases is far from assured.” | Yet the Palestinian issue will require the greatest deliberation, legal experts say. The prosecutor must decide whether to investigate allegations of war crimes during the Gaza war, the Israeli settlement policy, or both. Both raise novel legal issues, international criminal lawyers say, and the prosecutor is likely to move cautiously — “not because they are politically sensitive,” wrote Alex Whiting, one of her former colleagues at the I.C.C., “but because critical support for its work on these cases is far from assured.” |
| Technically, Ms. Bensouda can begin a preliminary examination, a prerequisite to a formal investigation, even before the Israeli elections in March. | Technically, Ms. Bensouda can begin a preliminary examination, a prerequisite to a formal investigation, even before the Israeli elections in March. |
| The court’s backers are thrilled by the backlash the Palestinian move has incited. If the court were really ineffective, they argue, there wouldn’t be a fuss. | The court’s backers are thrilled by the backlash the Palestinian move has incited. If the court were really ineffective, they argue, there wouldn’t be a fuss. |
| According to Mr. Whiting, who now teaches at Harvard Law School: “The strong reactions to the Palestinian move to join the court show something else: that the I.C.C. still matters. A lot.” | According to Mr. Whiting, who now teaches at Harvard Law School: “The strong reactions to the Palestinian move to join the court show something else: that the I.C.C. still matters. A lot.” |