International criminal court: now for Kony and Bashir

Tomorrow the international criminal court begins an important new chapter when the Gambian lawyer Fatou Bensouda takes over as prosecutor. Having served as the court's deputy prosecutor for the past nine years, Bensouda has solid credentials. Even so, she has a tough assignment ahead. Lately it has become fashionable to criticise the court, particularly for taking too long and costing too much. As Bensouda begins her nine-year term, it is also time for a more constructive dialogue on our future vision of international justice.

International justice is not cheap – the court's budget for 2012 is over €100m. But consider just some of the returns on our investment since 1993 when the UN security council created the international criminal tribunal for the former Yugoslavia – the first international war crimes tribunal since Nuremberg.

In 1993 impunity for wartime atrocities was the norm. Today international justice is a regular feature of conflict resolution processes, and amnesties are no longer readily traded for peace. In 1993, the Dutch jail cells of the fledgling Yugoslavian tribunal were empty with little hope that war crimes fugitives would ever be delivered. Today, of the 161 people indicted by the Yugoslavian tribunal, none remain at large. In 1993 the idea of trying a sitting head of state for war crimes seemed fanciful. Today Charles Taylor, the former president of Liberia, stands convicted by the special court for Sierra Leone of aiding and abetting a litany of gruesome crimes. In 20 years an innovative legal order has been designed, the infrastructure assembled and a new generation of specialised, multi-disciplinary professionals trained. It would be foolish to withdraw resources for international justice just as we are poised to reap the efficiencies of this groundwork.

Bensouda will need support from states when it comes to arresting the court's fugitives, such as Omar al-Bashir, the Sudanese president, and Joseph Kony, the Ugandan Lord's Resistance Army leader. The court's inability to arrest these long-time fugitives must be resolved urgently. The Yugoslavian tribunal's clean record in bringing all its indictees to book shows the power of positive incentives when it comes to arresting fugitives from international justice. In particular, policies making European Union membership conditional on full co-operation with the Yugoslavian tribunal created powerful pressure – most recently in Serbia – to hand over indictees, culminating in last years' long-awaited arrests of Ratko Mladic and Goran Hadzic.

Complaints are frequently levelled at the ICC for focusing too much on African cases. One remedy is universal ratification of the court's statute. This would give the court jurisdiction over atrocities no matter where they happen and remove the technical hurdles constraining the court's case selection. Until we achieve this, the security council's power to refer country situations to the court will remain crucial. It should apply the same criteria for referrals, regardless of the country concerned.

International justice must also be twinned with building the capacity of national systems to prosecute crimes. In the immediate aftermath of atrocities, international action may be the only viable option. Over time we need strategies for redesigning this situation.

This is another key lesson from the Yugoslavian tribunal's work. Since 2004 when the tribunal's completion strategy took hold, we have transferred cases and investigation materials back to the former Yugoslavia and set up programmes for funneling our expertise in Balkans war crimes prosecutions to national authorities. Today liaison prosecutors from Serbia, Croatia and Bosnia-Herzegovina working in our office in The Hague function as an interface between national and international justice. By contrast, national capacity building is not happening in parallel to the international criminal court's work. It is a missed opportunity and should be reconsidered.

Ultimately it is unrealistic to think the ICC can respond to atrocities the world over. Since 1993 the UN has set up more than 50 international fact-finding or investigation commissions to look into incidents including the 2007 assassination of Benazir Bhutto and the violent 2009 crackdown on demonstrators in Guinea. The work of these commissions should be used as a platform for choosing the right follow-up action, whether technical help to the affected country, setting up hybrid national/international structures, or referring the situation to the ICC. Currently we build each commission from the ground up, which delays the deployment of investigators and potentially undermines the quality of the results. We have not yet developed standard procedures for collecting and storing evidence or conducting interviewsand we need a permanent operational infrastructure.

As Bensouda begins her term, we should reaffirm our support for the court's work, while thinking constructively about the road ahead. The accountability vacuum of the past is not a viable alternative. We must craft a vision of international justice that maximises redress for millions of people worldwide who have suffered through unthinkable crimes.

Serge Brammertz is the prosecutor for the international criminal tribunal for the former Yugoslavia.

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