What if Ocampo Indicts Bashir? 2
Some serious thinking is called for on the work of the ICC and its implications for accountability for mass atrocities, especially in Africa. There are no easy answers in this enterprise even if all options need to be looked at. What is not permissible in my view, however, is the trade in cavalier polarities of either peace or justice or a bit of both. It is wearying and wearisome, even lazy. The complex emergencies created by mass atrocities and left in their wake are not easily apportioned between peaceniks and justice zealots. It is easy to think that high-sounding peace agreements inked on exotic beach resorts can sort out these situations or that flying off the leaders in manacles to antiseptic locations like Den Haag in proceedings arguably seen by many of their people as show trials or five-star non-events will do the trick. These polarities avoid the difficult job of protection, prioritization and re-construction (of psyches, communities, institutions, structures, and infrastructure) that that must follow mass atrocities.
I equally think it is possible to support the work of the ICC and its Prosecutor or the wider project of ensuring justice for mass atrocities and of ultimately ending them while disagreeing with some of the things done by the ICC Prosecutor. A criticism of the Prosecutor or disagreement with him is not a come-on to a potential genocidaire or a charter to a mass murderer.
The 11 June posting on the ICC and the Security Council makes one point that bears close reading and examination. While some people may believe that the job of the ICC is to robotically follow its version of the law and facts where they lead, the reality is that the prosecutorial calls made by the Prosecutor are political and are perceived as such in the affected communities and beyond. The Prosecutor cannot afford to be politically tone deaf or to be perceived as such. Therefore, the quality of political intelligence at the disposal of the Prosecutor will in most cases be as important as the facts on the basis of which he reaches his threshold prosecutorial decisions.
In my view, there are three dangers here. One is of the Prosecutor hewing too closely to the politics as to lose sight of the needs of justice. The other is of a Prosecutor being too blind to the politics as to alienate people from the strategic objective of justice. The first is the danger of expediency; the second is a danger of what I would call international justice fundamentalism. Either charge does incalculable damage to international justice. Both are to be dreaded. But the most fearsome danger, perhaps, is of a Prosecutor being perceived — rightly or wrongly — as being expedient in the service of international justice fundamentalism.
Those who harbour any ambitions of ending mass atrocities everywhere must work to eschew these dangers anywhere. The task may be thankless and the motives of those who do it may well be misunderstood. But it is necessary if international justice is to retain its credibility and role both as an option of last resort and a complement to domestic accountability mechanisms.
I fear that a Prosecutor who does not watch out against these risks bleeding critical support for international justice, especially in my own part of the world, in Africa. Regrettably, I must confess, this danger of loss of support is real and growing among what would be a natural constituency for international justice over here in Africa.
Chidi Odinkalu is a lawyer from Nigeria.