The following article was originally published by Project Syndicate. James A. Goldston is director of the Open Society Justice Initiative.
As the world focuses on the inauguration of America's first black president and celebrates an important milestone in the ongoing struggle for racial equality, recent developments across the Atlantic represent significant progress in a related global campaign to end impunity for mass crimes.
In the coming days, judges sitting on the International Criminal Court in The Hague will decide whether to issue a warrant for the arrest of Sudanese president Omar al-Bashir for the crime of genocide. And on January 26, the ICC will begin its first trial, that of Thomas Lubanga Dyilo, a former Congolese warlord.
Neither event is earth shattering, but, taken together, these two steps mean that a new system of international justice is working. Government and rebel leaders around the globe have been put on notice that criminal conduct will no longer be given a free pass.
Although the threatened indictment of Bashir has prompted protest in Khartoum, no one expects him to appear in court soon. As for Lubanga, he is one of many in the Congo who has used civilians as pawns in a war that has cost more than 5 million lives in the past decade. Though serious, the charges against him—recruiting child soldiers—do not pretend to encompass the range of abuses committed.
Five years after the world's first permanent criminal tribunal commenced operations, it has made its mark. The ICC has opened four active investigations, issued public charges against 12 people, and to date secured custody of four.
Nonetheless, the court has come under fire for three alleged failings.
First, some argue that by interjecting itself into ongoing conflicts, the ICC has impeded efforts to secure peace. But the facts on the ground do not bear this out. In northern Uganda, ICC charges against leaders of the rebel Lord's Resistance Army have helped bring an end to years of brutal fighting and marginalized the LRA's chief, Joseph Kony.
Similarly, in Sudan's Darfur region, there has been no genuine peace process to disrupt, as attacks on civilians continue to be reported, even after the United Nations security council referred the matter to the ICC in 2005. Even so, the ICC prosecutor's application for an arrest warrant for Bashir—announced last July—has yet to provoke a widely feared crackdown on humanitarian organizations. On the contrary, it may have prompted the arrest of a lower-level indictee for crimes in Darfur. In short, more law, rather than less, is needed to help stem the violence.
Second, the ICC is said to have allowed itself to become a tool of national political leaders. The fact that national governments referred three of the court's four active cases —and that in each of those cases only armed rebels or government opponents have been charged so far—has contributed to this perception.
Navigating this interplay between law and politics is perhaps the ICC's greatest challenge. On the one hand, the court's actions often have political consequences: however well founded, accusing the leader of a rebel army may be seen as taking sides in a conflict. On the other hand, the court cannot charge—or refrain from charging—a senior political or military official responsible for grave crimes solely to avert negative political repercussions. Nor would it be proper, where the gravity and scale of crimes materially differ, to charge all sides in a conflict to preserve a false sense of parity.
Both of these complaints reflect a third: unease with the court's overwhelming focus on Africa. Some suggest that this is yet another example of western institutions applying to Africa principles that they don't apply to themselves. The long history of Africa's exploitation demands that this concern not be dismissed out of hand.
Nevertheless, Africa is the site of many of the world's worst conflicts. Nor is the ICC a foreign body. Thirty African governments have ratified the ICC's governing statute, and several of the court's 18 judges hail from Africa, as does a substantial portion of its staff. Still, the court should not hesitate to act outside Africa when mass atrocities demand redress.
The experience of other war crimes tribunals suggests that questions about political bias may take years to overcome. Only by demonstrating professionalism in its work, and willingness to hold senior government figures accountable where appropriate, can the ICC engender broad and lasting support.
Over time, the ICC's example should foster more effective national and regional prosecutions of serious crimes such as genocide, crimes against humanity and war crimes. For now, the court can best address skeptics by more regularly and transparently explaining itself—its decisions, its mandate, and its constraints—to a global public to whom it ultimately must answer.
© Project Syndicate, 2009