Professor of Law and Author of The Pinochet Effect
"The Paradox of the ICC"
How do you judge the success of the International Criminal Court (ICC)? If it's by the number of prosecutions and convictions, the ICC will probably always be adjudged a failure. It's unlikely to try more than a few cases at a time, and it will always have to make hard choices about where to put limited prosecutorial resources. A lot of cases will never come under the ICC's purview, including crimes committed before 2002 and those with regard to which neither the necessary states nor the Security Council can be convinced to act. As The Reckoning suggests, however, this may not be the right yardstick. Rather, the ICC should be judged primarily on the degree to which it prods, pushes and promotes the ability of states to carry out their own serious and fair trials of those committing war crimes, crimes against humanity and genocide.
At the heart of the ICC is a bit of a paradox. The ICC was set up with the understanding that sometimes national courts can't or won't try the worst crimes, either because the perpetrators are in charge of their governments and thus above the law, or because the perpetrators are militias or mafias beyond the reach of the state, especially a weak state. At the same time, though, the ICC gives first priority to national courts, stepping in only in the face of evidence that the locals are unable or unwilling to investigate and prosecute. Ideally, then, the ICC should serve as a backstop, an implicit threat to take cases away if a national justice system isn't doing its job. In the best of circumstances, the ICC would have no cases; rather, all cases would be the subject of national proceedings, carried out in good faith and meeting basic standards of fairness and independence of the judiciary.
Colombia exemplifies both the promise and the problems of this approach, and the film is much enriched by the inclusion of a segment on Colombia, even though to date the prosecutor -- despite much criticism -- has not opened a case in that country. Is Colombia "unable or unwilling" to prosecute, as the ICC statute requires? The case of Colombia illustrates the difficulties facing the prosecutor. On the one hand, he doesn't want to cut off existing national processes, even those that are less than ideal, since trial at home has clear advantages. On the other, at what point do the shortcomings of the justice and peace process -- and a government's ability to short-circuit that process through extradition to the United States when the paramilitaries start talking too much about their ties to the regime -- become so glaring that the national process becomes merely a more sophisticated brand of de facto impunity?
If the ICC backs off too far, it loses credibility. If it pushes too hard, it risks riding roughshod over national abilities and sensitivities, perhaps cutting off the very national and local processes provoked by its pressure. That's part of the debate the film shows us in northern Uganda. In the case of Colombia, the lack of action has also fueled criticism that the ICC is aimed at Africa alone and ignores widespread crimes elsewhere.
An evaluation of the ICC's success should also be grounded in realistic, and modest, expectations. If the ICC is measured against the question of whether reconciliation has been achieved, or whether victims and survivors are satisfied, or whether future conflict has been avoided, it will always come up short. To some degree, the kind of hurt and trauma produced by seeing one's family and community destroyed, or being raped or abused or displaced, can't ever be fully remedied. Beyond that, criminal prosecution is only one kind of justice, albeit a kind that is necessary for at least the worst crimes and the worst criminals. It is not a forum for telling the story of overall patterns of conflict or repression, and it isn't always a sympathetic forum for victims. Other kinds of justice, including disclosure of the patterns and causes of conflict and of the fate and resting places of victims, vetting and restructuring security forces, reparations for material and moral harms, legal reforms to attack a culture of impunity and distributive justice to change the underlying causes of conflict, are necessary complements.
To its credit, the Rome Statute of the ICC does make provision for court-ordered reparations, a first in an international criminal context. But those reparations will come not from state coffers, but from defendants' assets, which can be hard to locate. If the confiscated assets are insufficient, a victims trust fund associated with the ICC can supplement them, but that fund's budget is based on voluntary contributions from states and individuals. Some modest projects have already been undertaken in the Democratic Republic of Congo, but much more action is needed.
A criminal court, no matter how effective, can only be part of the effort to deal with the past in order to create a new future. Rather than substituting for the work of the ICC, proposals for reparations schemes, truth commissions and local-level processes of acknowledgement of wrongdoing and community reintegration are complements to that work and should be welcomed. It's not an either/or situation.
Naomi Roht-Arriaza is a professor of law at the University of California's Hastings College of the Law, and the author of The Pinochet Effect: Transnational Justice in the Age of Human Rights (2005). She writes extensively about human rights issues in Latin America.