ICC: Most Wanted

Seventeen years ago, Luis Moreno Ocampo, the first person to hold the post of prosecutor at the International Criminal Court, decided to push international criminal law to a new boundary. He would make a head of state into a fugitive from justice. His target was the president of Sudan, Omar al-Bashir, for crimes in Darfur.

The current ICC prosecutor, Karim Khan, has thrown down another gauntlet. The court’s judges have responded positively to his application for arrest warrants against Israel’s prime minister, Benjamin Netanyahu, and former defence minister Yoav Gallant. They also issued a warrant for Muhammad Deif, one of the three Hamas leaders Khan had named, whose death is yet to be confirmed.

The al-Bashir case settled most legal questions about whether heads of state or government enjoy immunity for international crimes. They don’t. Israeli challenges to the court’s jurisdiction over the Netanyahu case didn’t convince the judges, who overruled them before authorising the warrants. The UK government under Keir Starmer dropped its predecessor’s procedural challenge to the ICC. Khan’s case breaks new legal ground only insofar as it’s the first time that an international court is charging individuals with the war crime of starvation. The controversy is political.

The ICC was established at the high noon of liberal internationalism. Following ad hoc international tribunals for the former Yugoslavia and Rwanda, delegates of 160 countries met in Rome in 1998 to negotiate a treaty for a permanent international criminal court that would try individuals for war crimes, crimes against humanity and genocide (the crime of aggression was added subsequently). When a sufficient number of states had ratified the statute four years later, the ICC was established. Ocampo, a lawyer from Argentina, was elected prosecutor. It is separate from the International Court of Justice, an arm of the UN established in 1945 to adjudicate disputes between states, where South Africa is pursuing a separate case against Israel, accusing it of genocide.

In 2005 the UN Security Council gave the ICC jurisdiction over Darfur. Speaking to the Security Council in December 2007, Ocampo regretted that the Sudanese government was not co-operating with his investigations or handing over the two suspects he had earlier accused of war crimes. He would, he said, open a new investigation into ‘who had the greatest responsibility for ongoing attacks against civilians’. The signal was clear, its repercussions anything but. In due course, Ocampo held a press conference and announced he was seeking an arrest warrant against al-Bashir. In the refugee camps of Darfur, people celebrated, as did human rights activists around the world. The court issued the arrest warrant. For the rest of his life, al-Bashir would be a wanted man.

He took the news more calmly than many had feared. High-level UN and African Union officials worried that he might block aid operations, renege on the peace deal he had signed with southern Sudanese forces or expel UN peacekeepers. He didn’t. He rallied his supporters, proclaiming an international conspiracy against Sudan, against Arabs and against Muslims. In his typically earthy manner he said the ICC should drink the indictment – referring to the practice of local medicine men who would settle a grievance by writing verses on a board used by Quranic students, washing it down and handing the diluted ink to the petitioner to drink.

The UN and Western nations forbade their officials from meeting al-Bashir. The head of the UN mission in Sudan insisted that he could not do his job without meeting the president, so UN legal counsel compromised, instructing him that he must do so only for essential business, and that if he were photographed with al-Bashir he should not be smiling. The Obama administration was split. Some officials championed the indictment. Others believed that the putative US bargain with Sudan – lifting sanctions in return for peace in southern Sudan and protecting civilians in Darfur – needed a relationship of trust. If no American diplomat could meet al-Bashir, that path was much trickier.

UN and African Union officials examined options for blunting the impact of the arrest warrant. None were feasible. Article 16 of the Rome Statute permits the UN Security Council to suspend ICC action for twelve months – not enough to assuage Sudan’s fears. International law grants certain immunities to heads of state and government, but this was ruled not to extend to ICC arrest warrants, even for states – such as Sudan – that had not ratified the Rome Statute. According to Article 53, the ICC prosecutor should not pursue a case if ‘a prosecution is not in the interests of justice’, but that stipulation is narrowly defined, discretionary and wouldn’t include possible threats to peace and democracy. The principle of complementarity – that the ICC should pursue a case only when domestic courts are unwilling or incapable of doing so – clearly applied.

Every one of the 124 member states of the ICC is obliged to arrest al-Bashir. When he made an official visit to South Africa in 2015, legal groups sought a high court injunction that the government should arrest him – and the Sudanese president abandoned his official engagements and scuttled back to the airport. Even flying through the airspace of an ICC member state was dangerous, and when al-Bashir visited China – not a signatory to the Rome Statute – in 2011 his plane charted a zigzag course.

The AU set up a panel, chaired by the former South African president Thabo Mbeki, to recommend solutions for Darfur. (I was an adviser to the panel.) Mbeki spent forty days in town-hall meetings with Darfuris and other Sudanese. Angrily confronted by people asking why the AU wasn’t arresting al-Bashir, Mbeki posed a series of challenges in return. What, he asked, was their ultimate goal? Was it peace, reconciliation, democracy and justice? Or was it to see al-Bashir behind bars? Given that the ICC would try at most a dozen Sudanese offenders, how should the many other perpetrators be treated? And what else might justice entail: restitution, compensation, apologies? These were not rhetorical questions – Mbeki wanted answers, in the form of a roadmap to what he called a ‘global political agreement’. Once that was clear, the panel implied, the Sudanese people could decide how to call their president to account.

Sudan ended up achieving none of those things. Al-Bashir’s paranoia was an ingredient in the recipe for calamity, and the arrest warrant only made it worse. Any chance that he would step aside in a forthcoming election was dashed. He didn’t trust any of his lieutenants to guarantee him a secure retirement, fearing that a successor might cut a deal with Washington or Brussels and deliver him to The Hague. His only safe place seemed to be the presidential palace. After he was deposed in 2019, the new civilian government did not want to antagonise still powerful generals and compromised by trying him for corruption in a domestic court. His last confirmed sighting was in a Sudanese army hospital.

Before ending his term, Ocampo also issued arrest warrants for Libya’s Muammar al-Gaddafi and his son Saif. After a civil war in Ivory Coast, the incoming president, Alassane Ouattara, handed over his defeated predecessor, Laurent Gbagbo, to the court. Gbagbo was later acquitted. An arrest warrant for the former Congolese vice president Jean-Pierre Bemba was unsealed when the unsuspecting Bemba landed in Brussels, and Belgian police transported him to The Hague. He was sentenced to eighteen years in prison for murder, rape and pillaging committed by his troops, but the verdict was reversed on appeal after he had spent a decade in prison.

In Kenya, after a disputed election in 2007, between 800 and 1500 people died in political violence. As part of an agreement mediated by the former UN secretary general Kofi Annan, the abuses were referred to the ICC and Ocampo named six men, including Uhuru Kenyatta and William Ruto, the deputies of the two opposing candidates. The two accused leaders set aside their political differences for the next general election and stood on a joint ticket, each guaranteeing the other’s impunity – exactly the kind of political bargain that the ICC was intended to pre-empt. Witnesses disappeared or recanted. After winning the presidential election in 2013, Kenyatta flew to The Hague to attend a hearing, where charges against him were withdrawn because the judges considered there was no chance of obtaining a conviction. Ruto followed, and the charges against him were dismissed too. The other four accused also got off. Ruto succeeded Kenyatta as president in 2022.

Ocampo’s successor as prosecutor, the Gambian lawyer Fatou Bensouda, was in office when all these cases collapsed. That wasn’t her fault. Her predecessor had done the easy part, producing just enough evidence to meet the relatively low bar for issuing an arrest warrant, not the proof needed to secure a conviction. A hard-working, consensus-building African woman who didn’t let ego impair judgment was what the court needed after Ocampo’s tenure. During her nine years as prosecutor, Bensouda patiently restaffed her office, repaired the strained relations between the ICC and African governments, and issued eighteen public arrest warrants – none for heads of state.

Elected prosecutor in February 2021, Khan combines Bensouda’s rigour with an unexpected reprise of Ocampo’s ambition. His demand for an arrest warrant against Vladimir Putin was bold, the naming of Myanmar’s acting president, Min Aung Hlaing, was foreseeable, and the leaders of Sudan’s warring parties have reason to fear they will be next. But it’s the Netanyahu case that will determine Khan’s legacy, and the future of the court.

When Ocampo indicted al-Bashir, it was a test of law and politics. The law is now mostly settled in the ICC’s favour – those decisions were welcomed by Western governments at the time. The fundamental political controversy, over the limits of sovereignty, weren’t resolved. Rather, because Ocampo’s targets had been Africans with bad reputations and Bensouda had lowered the court’s sights, the question of sovereign impunity was set aside as an academic question. Not any more.

Palestinians and pro-Palestinian groups welcomed the arrest warrants. None of them expects Netanyahu and Gallant to face trial: the moral point is what matters. Israel has long been beyond the reach of international law, and the question of whether peace, democracy or reconciliation might be jeopardised by a judicial process doesn’t arise, because they are not in prospect.

Many Israelis have rallied to Netanyahu, at least for now. American politicians have lined up to condemn the court and threaten sanctions against prosecutors, judges and states that co-operate with the ICC. For them, Palestinians’ human rights vanish in the dust of Israel’s right to defend itself against terrorists. The Washington Post ran an editorial that accused the court of hypocrisy for not seeking to arrest Bashar al-Assad – seemingly oblivious to the elementary fact that the ICC has no jurisdiction in Syria – and characterised Israel as a democracy committed to human rights.

Human rights organisations concur that the charges are warranted and that Israel has failed the complementarity test by not investigating its leaders. For them, the overriding issue is the contest between universal human rights and sovereign entitlement. On this question, al-Bashir, Putin, Netanyahu, Biden and Trump have common cause, and the rest of the world has to decide whether to stand with or against the ICC.