International Criminal Court eyes role beyond war-crimes trials

Advocates want the ICC to help build a stronger international justice system. Will the Obama administration join the ICC?

Although spurned by the United States, the International Criminal Court approaches its first review conference next year with several high-profile war-crimes prosecutions under its belt. More recently, the court grabbed headlines by issuing a warrant for the arrest of Sudan's president, Omar al-Bashir, over alleged war crimes committed in the country's Darfur region.

But the seven-year-old ICC faces stiff challenges in coming years, advocates say. Supporters of the court who gathered in New York this week – including its chief prosecutor, Luis Moreno Ocampo – say second thoughts by some countries that signed on to the court, and criticisms that the ICC only goes after rights violators in weak countries, are just part of the challenge.

More broadly, they say, the court must do more than try cases – namely, it must help build a stronger international justice system. As the high-profile cases that gave the court its notoriety fade, the ICC's purpose – ending impunity for war crimes – should expand to helping countries develop their own national court systems.

Resistance to the court is brewing, however, in regions that initially supported it, as in Africa, where the African Union recently said it would not honor the arrest warrant for Mr. Bashir. Moreover, controversy surrounding the court could build if some preliminary inquiries into alleged war crimes in Afghanistan – committed by both NATO troops and Taliban forces – are pushed further.

What advocates hope is that the ICC will be able to achieve its goal by the fact of its existence and its example, rather than by the multiplication of trials.

"The goal of the ICC is not to put on trial everybody who violates the Rome statute" that established the ICC, says Christian Wenaweser, Lichtenstein's UN representative and president of the ICC's Assembly of States Parties. "The goal is to end impunity."

Mr. Ocampo says recent experience in Kenya offers an example of how the court's existence is changing behaviors and potentially reducing the kinds of conditions that have led to court action.

Kenya is one of a list of countries, including Colombia, Sri Lanka, Cote d'Ivoire, and Gaza in the Palestinian territories, where the ICC has opened initial inquiries into rights-abuse cases that could turn into full-blown investigations.

But Ocampo says that in Kenya, government representatives sought him out and committed to providing the information he needed to answer accusations of crimes and abuses by officials in the post-elections period.

"That's important," Ocampo says, "because it's important we keep the state working with us."

Ocampo notes that Afghanistan is an ICC signatory, so the court has "normal jurisdiction" there. Right now, he says, the court is simply assessing cases of "collateral damage" and alleged torture to see whether they warrant a full investigation.

But the implication of such an inquiry – that NATO and American forces might be charged with a crime by the ICC – is what led the Bush administration to rescind President Clinton's signing of the Rome statute.

Court advocates note that by the end of his second term, President Bush was sounding more accepting of the court – especially after his own conclusion that "genocide" was occurring in Darfur. That warming trend has continued under the Obama team, with some court supporters expecting the administration to move toward joining the ICC.

"If they don't," says Richard Dicker, director of the International Justice Program at Human Rights Watch, "we will be on them like white on rice." That desire to see the US inside the ICC could influence how the court approaches a case like Afghanistan, if achieving global representation is seen to be of greater long-term value than pressing ahead on prickly questions of justified soldier conduct.

As Mr. Wenaweser notes, having 110 of the UN's 192 countries in the ICC is "great." But he adds that "only universal coverage will create a truly global network of international criminal justice."

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