II. The Courts Mission, Role, and Criticisms

Whether the Prosecutor decides to be aggressive or neutral in its approach of prosecuting the crime of aggression, the results are unclear. If aggressive in its policies, the Court may ultimately be viewed as political and biased against certain countries and individuals. On the other hand, if too neutral in its work, the Court may be viewed as inefficient, illegitimate, and unable to properly bring justice to victims of atrocities. Regardless of the course of action the Prosecutor elects to take, the role and mission of the Court is important to keep in mind when exercising jurisdiction over the crime of aggression.

The Prosecutor has multiple missions including:8

1. to fairly, effectively, and impartially investigate, prosecute, and conduct trials of the most serious crimes;

2. to contribute to long lasting respect for and the enforcement of the international criminal justice, the prevention of crime, and the fight against impunity; and

3. to do so transparently and efficiently.

Although these missions are extremely important, in the context of the crime of aggression, satisfying one mission may prevent the Prosecutor from achieving others. For example, assume that the Prosecutor effectively investigates, and prosecutes an individual who committed the crime of aggression. This may send a message to other war criminals that even if they negotiate a peace deal to stop further crime, they will later be prosecuted for the crime of aggression. Given how difficult it is to define specifically what the crime of aggression is; war criminals may be reluctant to negotiate cease fires or peace deals. This is because they may feel that they have nothing to lose if they are later prosecuted for the crime of aggression. Diplomacy may become obsolete. Therefore, any type of attempt by the Prosecutor to exercise jurisdiction over the crime of aggression may directly prevent the Prosecutor from achieving its goal of preventing future crimes.

The Prosecutor and the Court itself face constant criticisms and threats from individuals who don’t believe the ICC is effective in its pursuit of justice. Skeptics of the Court claim that the Court blows through an immense amount of resources while not achieving justice because it cannot arrest individuals. If the Prosecutor fails when prosecuting the crime of aggression, skeptics of the Court will have even more reasons to try to end the Courts existence.

Ultimately, since the Court has undertaken the role as an international tribunal to bring peace and justice to victims of horrible atrocities, the Prosecutor must be strategic before exercising jurisdiction over the crime of aggression. This may include electing not to prosecute the crime despite receiving the green light from the Security Council if non-prosecution will protect more victims. Many countries have their own political agendas and interests that they prioritize over bringing international justice and ending horrible international atrocities. The Court is faced with severe political pressure from powerful countries against intervening in international matters, specifically the crime of aggression. This directly imposes on the Courts role of assisting countries to bring justice to victims of mass atrocities, when the country is not equipped to domestically pursue justice. Mass atrocities and tragedies occur too often. Many victims are commonly left with no support, hint of justice, or closure in order to move on with their lives. These victims have high expectations for the Court and hope that the Court delivers on its promises. Therefore, it is essential that the ICC Prosecutor is wary when prosecuting the crime of aggression to not:

[D]isappoint people’s expectations leaving communities feeling abandoned and disinclined to trust the other work of the Court.9

III. The Prosecutor must keep a Short list of Individuals Indicted for the Crime of Aggression Until the Courts Issues with Arrest Are Settled

The Prosecutor notoriously suffers from a lack of support from States when it attempts to arrest an indicted individual.10 The Court relies on state parties to arrest individuals in the Courts’ pursuit of justice.11 Currently, the Court does not have the support of an independent police force that can execute Court warrants.12 Failure to arrest indictees has been a prime criticism of the court, as it results in the loss of respect from victims of mass atrocities. It also prevents the Prosecutor from successfully prosecuting and preventing the most serious crimes.13

The ICC’s Issues with arrest was exemplified following the indictment of Omar Hassan Ahmad al-Bashir (Omar al-Bashir). Omar al-Bashir is currently Sudan’s head of state.14 Although the ICC did not have territorial jurisdiction over the alleged crimes committed by Omar al-Bashir, the ICC obtained jurisdiction when the Security Council referred the Darfur matter to the ICC.15 The ICC Prosecutors charged Omar al-Bashir with crimes against humanity, war crimes, and genocide based on the destruction believed to have occurred in Darfur, Sudan between 2003–2008. Despite being indicted in 2009, Omar al-Bashir has not been arrested yet. Omar al-Bashir has even visited various countries following his indictment; including Chad, Egypt, Iran, Iraq, Qatar.16 Even worse, Omar al-Bashir has traveled to countries who are State Parties.17 Despite repeated political pressure and efforts to limit Omar al-Bashir’s travel, Omar al-Bashir is left free.18 The Court simply does not have sufficient methods that would help it bring justice to the victims of crimes committed in Darfur. There are no members of the opposition in Sudan that are willing to stand up against him.19 Issues with arrest will directly infringe on any attempt by the Prosecutor to indict, arrest, and conduct the trial of an individual who allegedly committed the crime of aggression.

The road to international justice is a murky one. State Parties have previously had difficulties navigating the complexities of international law to determine their obligations owed to the Court. For instance, obligations owed to the Court may directly contradict customary international or domestic obligations. Since the Court is a relatively new institution, customary international obligations may trump State Party obligations owed to the Court.

This problem was exemplified in June 2015 when South Africa hosted the Summit Meeting of the African Union.20 Omar al-Bashir attended the summit and departed from South Africa without being arrested.21 When Omar al-Bashir arrived to South Africa, the Southern Africa Litigation Centre requested a South African court to order South African authorities to arrest and turn in Omar al-Bashir.22 The South African Court noted that South African was under an obligation to fulfill the requirements under the Rome Statute including: “that a state, faced with a request to arrest and surrender a person, shall…comply with the request to arrest and surrender.”23 South Africa’s duty to arrest pursuant to the Rome Statute was implicated by its obligations under customer international law.24 Negotiations and issues present between State Parties and non-State Parties is governed by customary international law.25 Since Sudan is a non-State Party, the arrest of Omar al-Bashir may have resulted in a violation of customary international law by South Africa.26

Ultimately, South Africa succumbed to the uncertainty revolving its obligations to the Court and did not arrest Omar al-Bashir. This is despite South Africa being a State Party that enacted domestic legislation providing its support to the Court, and that has continuously attempted to better the relationship between the African Union and the Court.27 Even more interesting, the Rome Statute provides instructions on:

[H]ow a state should deal with competing requests for the arrest and surrender of a person, as well as the procedural modalities for giving effect to the obligation to arrest and surrender.28

These complexities threaten the effectiveness and legitimacy of the Court because the Court depends on outside institutions to enforce its arrest warrants and laws. To say the least, there is complete uncertainty regarding the issues of arrest. Prosecuting the crime of aggression will only further complicate matters, especially since acts of war may be justified under certain circumstances.

To remedy these difficulties with arrest, it should be the policy of the Prosecutor to keep the list of individuals indicted based on allegations of the crime of aggression short. The Prosecutor should refrain from maintaining a long list of indicted individuals until there is better support from State parties and others who will support the Prosecutor in arresting war criminals. Keeping a short list of indicted individuals may help make the Court look less inefficient. Critics of the Court will be unable to point out a long list of individuals unable to be caught. War criminals will not feel that they can operate with impunity when committing the crime of aggression, or provide evidence that the Court is illegitimate. Thus, the Prosecutor and the Court will heavily benefit from keeping the list of indicted individuals short until there is a concrete legal standard for arresting indicted individuals.

Alternatively, some may argue that by indicting an alleged war criminal, they may stop perpetrating crimes out of fear of being arrested when they go into hiding. Therefore, by maintaining a lost list of indicted individuals, the Court effectively may stop conflicts and individuals from subsequently committing the crime of aggression. Even if true, the Court must focus on maintaining its legitimacy and effectiveness. By maintaining a short list of indicted individuals until the arrest issue has clear cut legal guidelines, the Prosecutor may prevent the Court from being further criticized. Adding another crime to prosecute in the Courts arsenal may expose the court to further criticisms, especially if it is unable to arrest indicted individuals. This is crucial because of the backlash the Court will receive from power world wide powers when it starts to exercise jurisdiction over the crime of aggression.

IV. Prosecutor Must Defer to Diplomacy Before Prosecuting the Crime of Aggression

The Prosecutor should implement a policy or approach when prosecuting individuals for the crime of aggression in which the Prosecutor first defers to efforts at diplomacy, even if the Prosecutor receives a green light from the Security Council. The Prosecutor may damage efforts at diplomacy when it proceeds to indict, arrest, and prosecute an individual for the crime of aggression. Indicted individuals may have no incentive to negotiate a peace deal or a cease fire if they believe that they will be arrested and prosecuted later. Even more worrisome is the nature of an alleged crime of aggression. The use of force by one country against another country is justified under various circumstances. What if the use of force against an unprovoked country may stop a potential atrocity? Jack Snyder and Leslie Vinjamuri argue that:

[T]hat a norm-governed political order must be based on a political bargain among contending groups and on the creation of robust administrative institutions that can predictably enforce the law. Preventing atrocities and enhancing respect for the law will frequently depend on striking politically expedient bargains that create effective political coalitions to contain the power of potential perpetrators of abuses.29

Not all crimes must be prosecuted.30 Therefore, the Prosecutor should implement an approach that defers to efforts by different countries at diplomacy before indicting and starting court proceedings.

Although not specifically a crime of aggression prosecution, this issue was implicated when the International Criminal Tribunal for the former Yugoslavia (ICTY) operated in Bosnia, Serbia, and Kosovo. The ICTY was established in 1993 by the United Nations as a response to mass atrocities committed in Croatia and Bosnia Herzegovina.31 As explained in the ICTY website:

The key objective of the ICTY is to try those individuals most responsible for appalling acts such as murder, torture, rape, enslavement, destruction of property, and other crimes listed in the Tribunal’s Statute. By bringing perpetrators to trial, the ICTY aims to deter future crimes and render justice to thousands of victims and their families, thus contributing to a lasting peace in the former Yugoslavia.32

Roughly two years after the ICTY was formed, Bosnian Serb forces committed genocide in Srebrenica, Bosnia.33 In May 1997, the tribunal began to convict individuals related to actions committed in the former Yugoslavia.34 While these prosecutions and convictions were on-going, Serbian President Slobodan Milošević committed war crimes in Kosovo. Additionally, Milošević’s pushed his efforts at ethnic cleansing further after the United States bombed Serbia in response to Serbia’s actions in Kosovo.35 Ultimately, proponents of the ICTY discouraged violence in Kosovo and left war criminals with no choice but to abandon tactics that would spark interest from the ICTY’s prosecutors.36 However, critics argue that the ICTY promoted the perpetrators to cover their atrocities by hiding evidence, dispersing bodies from mass graves to other areas.37 The fact that war crimes occurred after prosecutions were on-going evidences that there may be room for diplomacy efforts before prosecuting. Following the signing of the 1995 Dayton peace accords on Bosnia, the ICTY’s actions divided the Serbs and Croats, further complicating the objective of obtaining peace.38 Ultimately, Snyder and Vinjamuri argue that the ICTY, “may have hindered efforts to defuse ethnic tensions.”39 Therefore, victims of atrocities may even benefit if the Prosecutor defers for a certain period of time to diplomacy efforts before prosecutions.

This is a prime example that pushing forward with indictment and prosecuting alleged war criminals may accelerate and hinder the peace process, rather than bring justice. Even if the ICTY’s work resulted in convictions, the Bosnian Serbs may have ultimately achieved their goals during the Bosnian-Serbian conflict. The victims of the war will never return, and the Bosnian Serbs may have gotten rid of a substantial number of the Muslim population in that region forever.

Therefore, the Prosecutor, before indicting an individual based on the crime of aggression, must analyze whether the conflict is still ongoing, and what would be the effect of an indictment. If an indictment would accelerate the fighting and hinder diplomacy, the Prosecutor must defer to other countries for as long as needed to negotiate a peace agreement or cease fire. If talks are undergoing, the Prosecutor should not indict alleged war criminals. It should be the Prosecutors policy to first let countries use their power to deal with conflicts. If people fear prosecution, they may be deterred from entering a peace agreement and will accelerate aggression. Also, a countries interpretation of justice may ultimately be different then what the court views justice to be. Victims of a country may feel vindicated if there are negotiations, a peace deal, or admitted guilt by perpetrators. If these perpetrators are indicted, they may never admit that they committed a wrong. Rather, they feel that they themselves are the victims, being prosecuted by a biased international tribunal. Even if a war criminal is convicted, the victims may never feel vindicated if the war criminal does not accept responsibility for the crimes. These victims may just want the fighting to end, so if prosecution is likely to accelerate fighting, the Prosecutor is doing a disservice to those victims. Therefore, although the Prosecutor may receive the green light from the Security Council to prosecute individuals for the crime of aggression, the Prosecutor must be wary and defer to diplomacy for as long as they are able to.

V. Conclusion

It should be the policy of the Prosecutor to keep the list of indicted individuals for the crime of aggression short until the issue with arrests is better determined universally.

The Omar al-Bashir case exemplifies the deep rooted issues with arrest of which the ICC suffers from. Adding on the highly politicized crime of aggression to crimes under which the ICC actively prosecutes may worsen its issues with arresting individuals. Citizens of a country may feel a sense of pride over what their government or military did in a conflict, and feel vindicated. Quite simply, if Omar al-Bashir was indicted for the crime of aggression today, he is not more likely to be arrested. This would be another loss for the court and provide further reasons to delegitimize it. Therefore, the ICC Prosecutor should be wary before indicting a long list of alleged criminals, and maintain the list of indicted individuals short.

Also, the Prosecutor should implement a policy or approach of deference to diplomacy before starting investigations or prosecutions of a conflict. A proper analysis should always be implementing to determine if the Prosecutors actions may accelerate an on-going conflict. Sometimes victims may heavily benefit more from prosecutorial deference. Therefore, even if the Prosecutor receives a green light from the Security Council, it must provide a period of deference to efforts at diplomacy.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Noah Weisbord, Prosecuting Aggression, 49 Harv. Int’l L.J. 161, 170–1 (2008), available online; see also Harold Hongju Koh & Todd F. Buchwald, The Crime of Aggression: The United States Perspective, 109 Am. J. Int’l L. 257 (2015), available online. ↩

2. 2.

   Weisbord, supra note 1, at 170–1. ↩

3. 3.

   Id. ↩

4. 4.

   Id. ↩

5. 5.

   M. Cherif Bassiouni & Douglass Hansen, The Inevitable Practice of the Office of the Prosecutor, ICC Forum (Mar. 17, 2013), available online. ↩

6. 6.

   Id. ↩

7. 7.

   Id.; Rome Statute. ↩

8. 8.

   Weisbord, supra note 1, at 178–9. ↩

9. 9.

   Jack Williams, Biting Off More Than It Can Chew? The International Criminal Court and the Crime of Aggression, 30 Austl. Year Book Int’l L. 201, 222 (2012), available online. ↩

10. 10.

    Id. at 223–4. ↩

11. 11.

    Id. at 222. ↩

12. 12.

    Dire Tladi, The Duty of South Africa to Arrest and Surrender President Al-Bashir under South African and International Law: A Perspective from International Law, 13 J. Int’l Crim. Just., 1027, 1032 (2015), available online. ↩

13. 13.

    Richard Dicker, Ramping Up Strategies for ICC Arrests: A Few Lessons Learned, ICC Forum (Feb. 13, 2014), available online. ↩

14. 14.

    Beth Van Schaack, ICC Fugitives: The Need for Bespoke Solutions, ICC Forum (Feb. 13, 2014), available online. ↩

15. 15.

    Tladi, supra note 12, at 1034. ↩

16. 16.

    Van Schaack, supra note 14, at § 3(B). ↩

17. 17.

    Id. ↩

18. 18.

    Id. ↩

19. 19.

    Id.

    (“To date, no state has had the courage, political will, or wherewithal to arrest him where he has traveled, in part because he has enjoyed the support of the AU.”). ↩

20. 20.

    Tladi, supra note 12, at Abstract. ↩

21. 21.

    Tladi, supra note 12, at 1028. ↩

22. 22.

    Id. ↩

23. 23.

    Id. at 1033; see also Rome Statute, Art. 98 (1). ↩

24. 24.

    Tladi, supra note 12, at 1035. ↩

25. 25.

    Id. ↩

26. 26.

    Id. ↩

27. 27.

    Id. at 1030. ↩

28. 28.

    Id. at 1033. ↩

29. 29.

    Jack Snyder & Leslie Vinjamuri, Trials and Errors: Principle and Pragmatism in Strategies of International Justice, 28 Int’l Sec. 5, 6 (2003), available online. ↩

30. 30.

    Id. at 12. ↩

31. 31.

    About, ICTY, available online (last visited Feb. 9, 2018). ↩

32. 32.

    Id. ↩

33. 33.

    Snyder & Vinjamuri, supra note 29, at 20. ↩

34. 34.

    Id. ↩

35. 35.

    Jack Goldsmith & Stephen D. Krasner, The Limits of Idealism, 132 Daedalus 47, 60 (2003), paywall. ↩

36. 36.

    Snyder & Vinjamuri, supra note 29, at 21. ↩

37. 37.

    Id. ↩

38. 38.

    Id. at 23. ↩

39. 39.

    Id. at 24. ↩