The ICC is intended to be a court of last resort; a court that prosecutes those that a state is unwilling or unable to prosecute themselves. States are often unwilling to prosecute, for many reasons: perpetrators of crimes against humanity may still be government leaders, the political divisions in the country may be too tense to do effective investigations or there isn’t consensus at the highest levels about the value of prosecutions. States may be unable to prosecute because of non functioning or overwhelmed judicial systems or a conflict situation impeding investigation. Yet all states parties do have obligations to cooperate with the court as well as to complement the work of the court, topics to be discussed at this week’s Review Conference.
The success of the ICC is very dependent on cooperation by people and organizations outside the Court. Unlike national criminal courts, the ICC has no police, no automatic right or ability to enforce it’s orders, nowhere to imprison the people it sentences and no clear way to enforce judgements that guilty parties have to compensate victims. The agreement of the nations of the world to form an international court was just the start of the cooperation needed between states in order to make this idea work. States have to enter into agreements with the ICC and set up national procedures in order to be able to help the court execute arrest warrants, provide witness protection, perform investigations inside their countries, take prisoners or freeze assets.
Yet because the ICC is meant to complement the work done at the national level, states have to do more than help the ICC prosecute perpetrators of the worst crimes – states have to prosecute those perpetrators themselves. The beginning of this commitment is by passing laws in our countries that make the crimes in the Rome Statute crimes in our own countries; such laws should also include incorporating some of the innovative and progressive criminal procedures in the Rome Statute, like giving victims more of a role in criminal cases. Once these laws and procedures are on the books, they have to result in prosecutions.
The hope and promise of the ICC is not that one institution can solve the problem of accountability for the most heinous crimes. The hope and promise of the ICC is that it’s formation reflected a global consensus that we will no longer tolerate impunity for such crimes. If we truly believe that, if we have come to a point where our shared humanity requires accountability, we all have to take the responsibility for bringing about accountability – by cooperating with the court but also by prosecuting perpetrators in our national courts.