THE HAGUE – Pedaling up to the recent World Forum on my muddied fixed-gear Dutch bike, I passed a phalanx of polished German-made autos all bearing diplomatic plates. (By my count, BMW won out over Mercedes two-to-one.) We were all heading to the same venue in The Hague, where representatives from 122 countries gathered for the 12th annual Assembly of States Parties to the International Criminal Court (ICC).
One of the mundane but critical agenda items concerns the court’s 2014 budget and whether member states will approve a 9.5 percent increase over last year's. To put the $15-million increase into perspective, that’s roughly equivalent to the cost of one BMW series 7 for each member state. Is it a good deal? You bet it is.
Following back-to-back genocides in Rwanda and former Yugoslavia, the “never-again” optimism of the 1990s spawned the Hague-based permanent tribunal. Since 2002 the ICC has indicted 36 individuals (excluding currently sealed indictments) from eight countries.
As a court of last resort, the ICC only has jurisdiction over the most grave war crimes and crimes against humanity when the absence of rule of law prevents domestic courts from bringing perpetrators to justice. This crucial check on prosecutorial discretion was lost on the Bush administration of George W. Bush, which tried but failed to scuttle the creation of the court for fear that it could put US leaders behind bars for war crimes.
The new ICC prosecutor, Fatou Bensouda from Gambia, faces seemingly insurmountable challenges to get the job done. Ironically, the main obstacle is the 28,000-word Rome Statute itself, the international treaty that established the court and which lays out — in cumbersome and at times conflicting detail — how, when and where the prosecutor can go about the business of locking up the Hitlers and Pol Pots of our day.
Only 63 percent of states, comprising a mere 33 percent of the world’s population, voluntarily accept the court’s jurisdiction. Unless the UN Security Council refers a situation to the ICC — as it did for Sudan and Libya — or a non-state party accepts the court’s jurisdiction on an ad-hoc basis, the prosecutor cannot even contemplate an investigation outside these countries.
Even when territorial jurisdiction is met, the state whose nationals committed barbarous acts can simply close its borders to ICC investigators.
Imagine a penal code that gave a serial killer the power to tell local police they don’t have the authority to visit the crime scene of his latest victim. That’s essentially what the Rome Statute allows a malevolent government to do after its leaders rape, pillage, and plunder.
Any time the prosecutor wishes to send one of her 46 investigators to a country where she has jurisdiction, they must first get permission (an official visa) from the government.
Then there’s the simple but effective delaying tactics some governments employ. Following the UN Security Council referral of the situation in Libya in February 2011, the new Libyan authorities have blocked access to ICC investigators.
How does such obfuscation impact an investigation?
One of the basic precepts in forensic science is the Locard exchange principle, which holds that a criminal will bring evidence into a crime scene and leave with something from it. Without immediately securing a crime scene, much of this physical evidence will erode or become contaminated rendering it inadmissible.
In international criminal justice, the whole country is a potential crime scene, and blocking access is just one wrench in a country’s sovereign toolbox it can use to thwart the prosecutor’s investigation.
Another significant handicap is the lack of any supranational law enforcement agency that the prosecutor may call on to arrest suspects and transfer them to The Hague. So, accused and at-large men like President Omar Al-Bashir of Sudan and Joseph Kony of Uganda’s Lord’s Resistance Army evade the Court because no government has the political will to effectuate their arrest.
Returning to the hypothetical serial killer, it’s like he’s got a get-out-of-jail-free card.
But against all odds, progress is being made at the cash-strapped International Criminal Court. Five new arrest warrants were issued just last week. But more could and should be done.
The 2014 budget increase would allow the prosecutor to hire more investigators so that on-going atrocities in Libya, Mali, and the Central Africa Republic — all situations that are currently under her jurisdiction — could be further investigated.
It’s hard to fathom a good ROI for international justice, but surely it’s worth 122 new BMWs.
Richard Sollom is an international criminal investigator with expertise in the documentation of war crimes and crimes against humanity who currently works in the Office of the Prosecutor at the International Criminal Court (ICC). Sollom has investigated human rights violations in more than 20 countries, including Albania, Bahrain, Bangladesh, Bosnia-Herzegovina, Chad, Congo, Egypt, Libya, Myanmar, Rwanda, Syria, and Zimbabwe.