ICC Prosecutor on the “Shadow of the Court”

International Criminal Court prosecutor Luis Moreno Ocampo gave a talk at the Council on Foreign Relations in Washington, D.C. last night.  His remarks largely focused on how the young court has begun to shape the behavior of governments, armies, peace negotiators, victims and civic groups all around the world.  The reach of the ICC beyond the confines of its own courtrooms is something he called the “shadow of the court.”  This shadow, he says, is growing in a number of important ways.  He explained:   


1) Political leaders are progressively excluding from their circle, those individuals sought by the Court. President Al Bashir became a fugitive; he cannot travel to States Parties of the Statute. He looks for political protection in the African Union and in his party, the NCP. South Africa informed President Bashir that he was invited to the inauguration ceremony of President Zuma, but that he would be arrested upon entry into the country. Uganda, Nigeria and Venezuela did the same. President Lula from Brazil and President Kirchner from Argentina refused to approach President Bashir in an Arab-South America summit. President Sarkozy has taken the unprecedented decision to cancel a French-African summit rather than run the risk of meeting with him in a corridor. Turkey has ensured that he cancels his appearance to a meeting of the Organization of the Islamic Conference in Ankara. In the Guinea case, Morocco refused to keep on its territory President Dadis Camara. It did not want to harbor a possible ICC suspect. Burkina Faso’s President Blaise Compaore contacted the ICC to ascertain there was no arrest warrant before accepting to host Dadis Camara.

2) Armies, all over the world, are adjusting their operational standards, training  and rules of engagement to the Rome Statute. This is the way to control violence.  The law makes the difference between a soldier and a terrorist. What else can they do? Prepare plans to arrest militia leaders such as Joseph Kony. An arrest  operation can be more efficient than a conventional military operation against a group such as the Lord’s Resistance Army.

3) Conflict managers and mediators also had to adjust their methods and their toolbox, respecting the legal limits. Kofi Annan’s work in Kenya is an example of  how justice can promote a lasting peace. On the contrary, having ignored the arrest warrant against Ahmad Harun in the Sudan in 2007 helped neither peace negotiations nor justice. Mediators need to recognize the facts unveiled by the judicial evidence and to respect the new legal framework. UN Secretary-General Ban Ki-Moon issued in April 2009 the strongest guidelines ever, informing all mediators that the ICC’s course of action had to always be respected. It is not a limit for mediators; it is an opportunity, it offers the possibility to develop new, more sophisticated strategies when carrying out negotiations. There is something between bombing and appeasing massive killers. There is something between regime change and negotiating with a perpetrator of genocide.

4) Victims have been the drivers and the pushers of the Court. We are their Court.  They are participating in many ways. They petition the Court, some of them  accepted to become our witnesses, and their stories are evidence. All of them are  contributing to the prosecution of perpetrators of massive crimes and to the  legitimacy of the system.  
5) And finally there are global citizens. Citizens living in The Hague or in Washington concerned about what happens in Gulu or Darfur. If citizens in peaceful countries are not interested in what is happening in conflict-torn areas out of solidarity or self interest, their political leaders will have no incentives to  make efforts for the victims. Our global citizens are for instance the “Invisible  children”, a group of young people from San Diego who are promoting the  “Lord’s Resistance Army Disarmament and Northern Uganda Recovery Act of 2009” in the US Congress. 

The bottom line is that the court is already having a positive impact on the behavior of governments and armies around the world.  On the political side, the Kenyan example shows that the court is emerging as a tool of international relations; something, as Ocampo said, that fits between “bombing and appeasing.”  On the justice side, the Bashir case shows that there is an ever shrinking space for immunity for war crimes and crimes against humanity.  For those of us who care deeply about human rights and international justice, these are very remarkable acheivements.