How many cases can the ICC handle?

On May 4th, Luis Moreno Ocampo, chief prosecutor of the International Criminal Court (ICC), will report to the United Nations Security Council on his investigation into alleged crimes committed in Libya. Weeks later he will seek arrest warrants from the ICC, most likely against Muammar Quaddafi and high-ranking members of his government. This is laudable.  But the ICC currently has open, formal investigations in the DRC, CAR, Sudan, Uganda, and Kenya, in addition to Libya. Additionally, the Office of the Prosecutor (OTP) is reportedly investigating alleged abuses in Afghanistan, Chad, Colombia, Côte d’Ivoire, Georgia, Guinea, Honduras, Nigeria, the Occupied Palestinian Territories, and the Republic of Korea. There is strong pressure for the Security Council to refer crimes committed during the 2008 Gaza War to the ICC, and Ocampo has been rather transparent about his desire to open a formal investigation into abuses committed in Côte d’Ivoire. Additionally, there have been calls for the ICC to prosecute crimes committed in nearly every Middle Eastern country where the Arab Spring has sprung, most notably Yemen. Can the Court handle this caseload?

The ICC has been successful in bringing to trial most of those it has sought to prosecute, but high profile exceptions like Sudan’s Omar Al Bashir and Lord’s Resistance Army leader Joseph Kony have called into question the Court’s ability to bring those who most need to be held accountable to justice. This damages the Court’s reputation. With that in mind, the OTP should seek arrest warrants against Quaddafi and his goons — and perhaps Côte d’Ivoire’s Laurent Gbagbo — but would be wise to hold its hand afterward. Should Gbagbo be captured, he would likely be turned over to the ICC (if Côte d’Ivoire’s government prove unable to prosecute him), but with pro-government forces in Libya looking firmly entrenched, Quaddafi would likely elude the Court’s reach.  Imagine, then, the impact on the Court of having both Quaddafi and Al Bashir openly flouting its authority, and imagine the leaders of Yemen, Bahrain, and a number of other states do the same. It could be catastrophic.

With a large number of state leaders wanted by the Court but either still in office or living out retirement beyond the Court’s grasp, the ICC would appear impotent, a charge it already faces from many of its critics. ICC investigations and arrest warrants would risk becoming run-of-the-mill occurrences in international affairs, things to be avoided but nothing to worry about. They might even be considered irrelevant. Why not, then, limit the Court’s caseload in the near term? The ICC has a number of trials pending, and with their conclusions it will only grow in reputation and strength. This will give future Court actions more weight, and thus more room to act when needed in the future.

Yes, this course will require the Court, and more specifically the OTP, to stand by while crimes it could prosecute are committed, and that very well might damage its reputation to evenly meeting out justice. But the ICC is a new institution, and needs time to assert its authority in the international arena before it fully spreads its wings. And besides, it is not as though the ICC has been prosecuting every international crime committed since its inception; it has been picking and choosing when and where it acts (or, in some cases, the Security Council has been). More importantly, the Court needs to prove that it can investigate, indict, arrest, and prosecute world leaders who commit crimes within its jurisdiction. Only then will it acquire the deterrent effect possessed by police in most developed countries.

In a  recent Harvard-sponsored web seminar, Ocampo laid out a vision for the ICC’s role in international affairs as a bulwark against international conflict. Crucial to this vision was the ability of the Court’s arrest warrants to act as deterrents. It is best to play a long game. In the short term, we will have to grin and bear it while state leaders and others commit heinous crimes (although there are other remedies). But in the long term, we will give a young international institution a chance to grow and assert itself. In the long run, we may end up not with a weak Court that issues many arrest warrants but prosecutes no major suspects, but with a strong ICC whose actions world leaders must respect and consider with care. Better to sacrifice Pyhrric victories now for real victories later.