If you have watched the footage from Homs, Syria this week, you cannot help feel that you have been a witness to a serious crime. By unleashing a months-long barrage using the most crippling weapons, Bashar al-Assad has killed and maimed hundreds of families, children and citizens, and has turned an internal struggle into a global atrocity.
Our rage and horror produce two responses. On one hand, we wish Mr. Assad would disappear: Fled, unseated, defeated or killed, whatever it takes to make the killing stop. This is the political approach. On the other, we want to see him pay for his crimes. This is the legal approach. If only there were a white-suited sheriff who could read him his rights and bring him to trial.
His name is Luis Moreno Ocampo, the Argentinean jurist who is the chief prosecutor of the International Criminal Court. Mr. Moreno Ocampo, in almost a decade running the world’s first permanent international court, has made himself known for his sudden arrival by helicopter, surrounded by TV cameras, in conflict zones. And for his big, ambitious claims: that Saif Gadhafi, son of the late Libyan dictator, “will face justice, that’s his destiny,” months after announcing incorrectly that Mr. Gadhafi had been captured, or that Sudanese President Omar al-Bashir would soon be brought to justice for the Darfur slaughter.
This should be the ICC’s moment. It now has its first head of state, Laurent Gbagbo of the Ivory Coast, behind bars in The Hague; his trial will start later this year. The case involving the court’s first arrest, made in 2006 against Congolese warlord Thomas Lubanga Dyilo, is likely to reach a verdict soon.
But it is impossible to see the ICC as a serious solution, and even though there have been some calls to get it involved in Syria, few believe it would help, and it might make things worse. The court is no longer seen as a major international force, in good part because of Mr. Moreno Ocampo.
One problem is that Mr. Moreno Ocampo’s desire to be seen threatening leaders with trials runs the risk of keeping those leaders in power longer. “If figures in the Syrian leadership were to be under investigation by the ICC, they might be less willing to cede power,” writes American legal scholar John Quigley. “The Syrian opposition might well oppose ICC action, as an ICC investigation might keep them from getting the voluntary departure of the top leadership.” This was certainly the case with Robert Mugabe and his generals, and is suspected elsewhere.
But the larger problem is that Mr. Moreno Ocampo has made his court’s legal process part of the political process. If countries aren’t signatories to the ICC’s treaty (and most, including Syria, aren’t), then the only route to justice is for the United Nations Security Council to refer them to the court. That’s what happened last year in Libya.
It quickly became apparent, however, that the superpowers on the Security Council (who aren’t ICC signatories themselves) were using the court’s investigation to marginalize Moammar Gadhafi and clear the way for a military solution; there was no real interest in bringing him to The Hague. “There is a largely untold story about how the ICC has been getting closer and closer to the power politics of the UN Security Council by accepting its referrals, which are politically tailored,” says Mark Kersten, a researcher into international-law politics at the London School of Economics.
That’s a serious problem, because the court is widely viewed in the developing world as an instrument of Western intervention in Africa. Indeed, all 22 cases currently before the court have involved African states, despite atrocities elsewhere. Mr. Moreno Ocampo’s image as a white-suited outsider, tied to the superpowers, has poisoned the idea of international justice and made it seem like a crusade. Mr. Kersten, researching the court’s work in northern Uganda, found that “many thought the ICC was a man.” Unfortunately, they weren’t all that wrong.
Crimes against humanity are increasingly rare. That is because of better politics and economics, not because international justice serves as a deterrent. It has an important role in bringing lethal disputes to a close and preventing vengeance, but is not an instrument of rescue or prevention.
Later this year Mr. Moreno Ocampo will be replaced by Fatou Bensouda, a Gambian lawyer known for her firm but professional approach. We can hope that she will put an end to the ICC’s age of heroism.
Photo of Luis Moreno Ocampo from the documentary “Prosecutor”