To Strengthen the ICC, Look to Its Member States

Carlos Castresana is a powerful advocate for international justice. As prosecutor in the 1990s in Spain, he championed the concept of universal jurisdiction, and famously used it to start proceedings against former Chilean dictator, Augusto Pinochet. More recently, Castresana served as the first head of the UN Commission Against Impunity in Guatemala (CICIG), which used international and local staff to develop cases against corruption and organized crime in the country.

Castresana recently participated at an Open Society Foundations event focusing on the future of international justice—at a time when its most potent symbol, the International Criminal Court (ICC), is facing steady public criticism. In its 12 years of existence, trials have resulted in only two convictions and one acquittal. At the same time, the court has been decried by some African leaders for so far only prosecuting Africans.

In an interview with me after the event, Castresana conceded that the ICC has failed in many ways. But he insisted that states have failed the court by refusing to back it up. In his view, the Rome Statute (adopted sixteen years ago on July 17, 1998) gave the court a broad mandate to take on cases, but because states feared losing sovereignty, they “didn’t want to give the court all of the tools it needed to do its job.”

When political pressures get in the way of prosecution—such as when the ICC brings charges against sitting heads of state, as in Darfur or Kenya—Castresana wants to see states stepping in to remove political obstacles. “The court has to be judicial, independent, and not actively participating in political conflicts—the states and the UN Security Council are the ones that need to resolve these.”

Specifically, Castresana would like to see the President of the Assembly of States Parties (ASP) becoming more actively engaged in these political negotiations. “It shouldn’t be the Prosecutor who is negotiating directly with the African Union or Sudan. The Prosecutor should turn to the ASP for help, and the ASP president should work with African States to resolve the current tensions and remove obstacles to existing cases.”

Castresana also stressed the important role of the United Nations Security Council (UNSC). “What cannot happen is that the Security Council refers a situation to the court, as they did in Sudan and Libya, and then acts like their job is done.” In the cases of Al-Bashir and Gaddafi, it successfully identified cause to prosecute both suspects. But the Security Council failed to step in and make their arrests happen, through measures like embargos. “This cooperation has to take place, and if it doesn’t, it will be impossible for the court to fulfill its mandate.” On this, Castresana is in agreement with the ICC Prosecutor Fatou Bensouda, who recently criticized the UNSC for its failure to act decisively on the situation in Darfur.

Castresana did not absolve the ICC from all criticism. He agreed that the ICC has focused too much on prosecuting African leaders. “The court should bring charges against arms traffickers, against those who are engaged in clandestine business involving gold, diamonds, and natural resources. We must not think that only warlords or politicians commit international crimes.”

Even more importantly, he would like to see the international community form agreements to regulate the sale of natural resources, especially in the Great Lakes region. Again, this is an area where the States can take the lead. Many of today’s conflicts in Africa “are clearly consequences of the disorder in the existing natural resources market. The States need to get together to regulate the gold, oil, and diamond trades. This would prevent a lot of conflicts. Without the illegal arms trade that is funded by selling natural resources, we’d have no more wars—or at least, they’d be greatly reduced.”

I asked Castresana, as former head of CICIG, for any lessons learned that could be applied to the ICC. One thing that he felt worked very well in Guatemala was the international-domestic partnership. “It’s better to do joint investigations. In domestic jurisdictions there are always honest people willing to do the work. But many times they don’t have the technical resources, or an adequate legal framework.” He would like to see the ICC help provide these things, and over time, carry out joint investigations. “And after two or three years working on a situation, and once you have worked out which cases have sufficient evidence for prosecution, you can decide, together, which cases should be tried domestically, and which, because of a lack of political will, should be sent to the ICC.”