It only takes one scandal

When members of the ICC meet for their annual meeting in November, the question of the budget is going to be high on the agenda – and it is certainly going to be the matter that most people care about. Without more money, the court is just not going to be able to do its job. I delved into this issue, for seemingly the umpteenth time, in an article that I wrote for IWPR  here.

No one can deny that resolving the budget issue is of critical importance. But its overbearing presence on the agenda of the state parties’ meeting is rather sidelining everything else.

One of these issues is the crucial – though decidedly unsexy – independent oversight mechanism (IOM) that many member states would like to introduce to the court. A working group has been looking at the issue since 2008. The idea behind the facility is that the ICC’s overall operations, including field activities, would be closely monitored by a dedicated team, who would be able to signal any potential problem before it blew up into an horrendously damaging scandal. There was some hope that this issue would be on the agenda of the November meeting, but this now looks unlikely.

Former ICC prosecutor Luis Moreno-Ocampo took the somewhat disingenuous – though entirely fitting with character – view that it was up to him to discipline his staff, that there was no need for an outsight body to poke its nose in and that he would take ultimate responsibility.

This creates the obvious danger that, by the time the upper echelons of the court have started to learn about a particular issue, it would be too late to deal with the problem in a calm, collected and above all discreet manner. The prosecutor might prefer to take ultimate responsibility, but needing to discipline the prosecutor for failing in his duties would send out a devastating message about the efficacy of the court.

The United Nations has weathered its fair share of scandals – from child abuse to embezzlement. And each time such a scandal erupts it is thoroughly embarrasing. For a time. But then life moves on, because everyone knows that the UN is an immortal, immovable fiend where scandal is just a necessary part of saving the world. Ach-hem.

But the real problem is that the ICC doesn’t have the worldwide recognition that the UN does. Three of the permanent members of the UN’s security council – America, China and Russia – have not yet signed up to the Rome Statute. Many people in these countries see the court as a costly irrelevance. Scandals will only harden opinions.

The US is an interesting point. As a self-proclaimed guardian of human rights, it is a real tragedy that it has not yet signed up to the Rome Statute. Politically, it is almost impossible for it to do so, at least in the current political climate. The founding fathers of the country, in all their worldly wisdom, set the bar for joining any international treaty so high that the country needs a considerable level of political harmony before a motion to sign up can even be entertained. And, even if it does join, Congress is likely to throw its weight around when it comes to budget negotiations – which is likely to cause even more friction between the court and state parties.

However – and this is often overlooked – the Bush days, where senators were often dispatched around the world to secure bilateral agreements from members of the ICC that they would not send American citizens to The Hague, are long gone. Washington is looking positively lukewarm – rather than openly hostile – to the court, and always sends a large observer delegation to the annual meeting of state parties. The upper echelons of government are not opposed to joining the court, if only the political apparatus would allow them to. Even Mit Romney, should he become president, could probably be won round.

Which makes it even more important that care is taken to paint the ICC in the best possible light. The ICC still has plenty of critics around the world – it’s best not to give them any fresh ammunition.

Moreno-Ocampo has now departed the ICC, to fight corruption at FIFA, the world’s soccer governing body. So far, Fatou Bensouda, his replacement, seems pretty happy to listen to her critics. Pushing for an independent oversight committee, before it is too late, should be one of her priorities. Far from interfering with the judicial apparatus of the court, it would actually do the credibility of the institution a world of good.


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