The ICC’s Failure to Prosecute Assad Is Its Death Knell

Eric Posner weighs in.
Sept. 19 2013 2:40 PM

Assad and the Death of the International Criminal Court

The failure to prosecute him will be the end for the ICC’s brand of global justice.

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So when the United States, Russia, China, India, Pakistan, Turkey, and Israel all refused to ratify the ICC treaty, the court was crippled from the start. The United States feared that the ICC might pick on Americans, given that an independent body—staffed largely by foreigners—might believe that by singling out the United States, it could establish its bona fides with the rest of the world. Other countries that refused to ratify simply did not want a foreign court meddling in their affairs. They did agree that the U.N. Security Council would have the power to authorize the ICC to investigate and try anyone in the world for international crimes—a provision acceptable to the great powers because they control the council.

Without the big countries as members, the ICC—which lacks its own police force—could not call on them to arrest suspects in countries unwilling to give them up. The founders of the ICC faced a bad choice. They could offer immunity to the big countries in return for their participation, thus ensuring that the ICC would be regarded as illegitimate. Or they could give up on participation by the strong countries, draining the ICC of any power. They took the second path—but ended up depriving the ICC of legitimacy as well as power.

The countries that signed on were mostly peaceful democracies and poor countries embroiled in endless conflicts that could not be addressed with regular law enforcement. Because the ICC treaty specifically limits ICC involvement to cases where national legal institutions fall short, the ICC focused its attention on the latter group, which unfortunately were mostly African. In some cases, the African countries invited ICC participation, but in others it was thrust upon them. For example, the Security Council authorized the ICC to investigate Sudan, whose president Omar al-Bashir was indicted for his role in ethnic killings in Darfur. (He has refused to appear for trial.) Even a country like Uganda, which invited ICC participation, later found that as a result it could not offer an amnesty to insurgents in order to establish peace. As the ICC increasingly interfered in their affairs, African countries took the view that the court, in the words of Ugandan President Yoweri Museveni, is now being used by Western powers “to install leaders of their choice in Africa and eliminate the ones they do not like.” Meanwhile, the ICC—with an annual budget of more than $140 million and staff of about 700—has been able to convict only one person (the Congolese warlord Thomas Lubanga) in more than a decade.

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Things have finally come to a head. The ICC has indicted two Kenyan leaders—President Uhuru Kenyatta and Deputy President William Ruto—for their role in fomenting violence during elections in 2007. In an odd twist, the leaders have voluntarily agreed to appear in court while working behind the scenes to undermine the prosecution. Witnesses are pulling out, most likely because of intimidation or bribery. And the Kenyan Parliament has voted to withdraw Kenya from the ICC. Other African countries have taken Kenya’s side and have expressed support for Sudan’s Bashir. If Kenya withdraws from the ICC, other African countries may follow its lead. And why shouldn’t they? Why should their leaders subject themselves and their constituents to the risk of criminal prosecution if the leaders of other countries don’t do the same?

Events in Syria only underscore the complaints. Assad is a more repellent fellow than Kenyatta or Ruto, yet he will escape trial because Syria never ratified the ICC treaty and the U.N. Security Council won’t refer him for prosecution. He enjoys the protection of the Russians, and the Americans now need him to carry out the chemical weapons agreement and to prevent Islamic extremists from taking control of Syria. We can’t do a deal with him and then send him to jail.

And even if Assad somehow ended up at the dock in The Hague, his trial would still be seen as one more example of a poor country, in an underdeveloped part of the world, being targeted by the Western powers manipulating the ICC to their ends.

The ICC is not going to start bringing cases against Sweden and New Zealand so that it looks evenhanded. And it won’t even bring cases against conflict-ridden countries like Afghanistan that are clients of the great powers for fear of provoking them, as American University professor David Bosco explains. So if the ICC stops prosecuting Africans, it will have nothing to do. It is only a matter of time before the ICC fades away.

Eric Posner, a professor at the University of Chicago Law School, is author of The Twilight of International Human Rights Law. Follow him on Twitter.

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