By Richard Dicker
Ten years ago, when the treaty creating the International Criminal Court took effect, the prospect of holding heads of state and powerful warlords to account for mass slaughter seemed like science fiction.
Today the signs carried by Syrian protesters demanding “Assad to The Hague” are powerful testimony that the court is making its presence felt.
But as the I.C.C.’s influence grows, its promise of impartial justice for the world’s worst crimes is at risk of being undercut by international politics.
The I.C.C. has committed its share of missteps. Some are performance problems of its own making. At the same time, it runs the toxic risk of appearing to be used to advance the political objectives of powerful states.
For a court with a mandate to investigate and prosecute genocide, crimes against humanity and war crimes, the political stakes are inherently high. Its current suspects include two heads of state, a former vice president, a defense minister, a state governor and rebel commanders. The court is also authorized to charge suspects during ongoing armed conflicts, a power that some argue can make it an obstacle to peace.
But the United Nations Security Council’s authority to empower the I.C.C. to look into atrocities in countries that have not become members has significantly increased the risk of political taint, because judicial legitimacy depends on independence from government interference.
The council’s role, which helps to extend the court’s writ to mass crime scenes where it would otherwise be barred, is granted by the I.C.C.’s statute. Nonetheless, the court’s problems are compounded by the dominance of the council’s five permanent members. Three of these — the United States, Russia and China — have not joined the court. Through their nonratification and veto power, they have insulated themselves from the I.C.C.
They have also shielded the leaders of certain “client states.” While the Security Council has referred Sudan for the situation in Darfur to the I.C.C., Syria embodies this “above the law” status. President Bashar al-Assad is effectively immune from I.C.C. prosecution on account of Russia’s protection.
The list of Security Council-guaranteed “accountability-free zones” extends further. It includes Sri Lanka, Israel and the occupied Palestinian territories.
The use of this shielding power affects the global terrain on which the I.C.C. works, scarring it with an ugly unevenness where the same law does not apply to all. Some leaders literally get away with systematic murder, and this undercuts the court’s credibility.
Strong supporters of accountability, in righteous rejection of the obvious double standard, vent their frustration at the court.
Leaders of repressive governments, at the instigation of states like Sudan, cynically denounce political bias when what they really fear is the growing reach of the rule of law. These countries often talk about the importance of national trials, but most often they don’t prosecute at all. When they do, it is frequently in a seriously flawed court.
The political unevenness is also exacerbated by some powerful states that sometimes champion justice, initiate Security Council referrals, then drop the court like a hot rock when the political circumstances change.
In looking over this flawed terrain, committed proponents of justice need to draw attention to the double standard, along with shortcomings at the court, and work to correct them.
At the same time, neither justice nor victim is served by making the perfect the enemy of the good. Denying justice to those who have suffered unspeakable crimes in Darfur would provide no comfort to victims in Gaza who are denied access to the I.C.C.
Some short-term steps could minimize the offensive double standard.
First, the 121 countries that have ratified the I.C.C. treaty — nearly two-thirds of the U.N. General Assembly — need to put pressure on others to join the club. Further moves toward universality might shame more of the diminishing circle of holdouts into joining. Additional ratifications would also mean less impunity all around.
Second, countries that care deeply about justice should press the Security Council to end the hypocrisy and to make I.C.C. referrals based on the severity of crimes — and not on the allegiances of the perpetrators. This would raise the political cost of a veto at the Security Council.
Third, countries need to use their domestic laws to prosecute those on their territory who may be responsible for serious crimes committed elsewhere.
Unprecedented headway has been made in limiting the impunity long associated with the most serious international crimes.
But the changes at stake are nothing less than tectonic. Evening out the playing field for accountability won’t be easy, but bringing credible justice to the world depends on it.