February 22, 2017

When Should the ICC Call It Quits?

The close of 2014 continued to bring bleak news for civilians in Darfur. As fighting in Sudan’s beleaguered western region increased, the UN looked to reduce its peacekeeping presence there. And this on the heels of the ICC Prosecutor, Fatou Bensouda, telling the Council that in the absence of any commitment from them to enforce the Darfur warrants, the Court would be suspending its investigative activities.

As Kevin has already noted, Bensouda’s statement is a depressing insight into the moribund state of ICC-Security Council relations (not to mention another blow for survivors of the conflict). Yet as he also observed, it is heartening to see the Prosecutor laying the blame for the lack of arrests squarely where it belongs. For too long the Council has used its Darfur referral to outsource the problem to the ICC in lieu of taking meaningful steps itself.

Beyond the immediate implications for Darfuris, the ICC, or the Security Council however, there is a broader question triggered by Bensouda’s statement, and one that commentators are yet to pay attention to: Under what conditions should the ICC Office of the Prosecutor stop its activities in a given situation?

Both academics and practitioners have spent the first decade of the Court’s existence focused largely on issues related to the OTP’s commencement of activities in new situations. But as I argue in a forthcoming article in N.Y.U. J. Int’l L. & Pol., attention now needs to be directed to the question of what principles might guide the end of its operations. Given that Bensouda’s statement marks the first time an ICC Prosecutor has publicly discussed any halt to the OTP’s activities, it is worth closely scrutinizing the rationale upon which her decision is based, and considering some of the implications should the same rationale be used consistently as the basis for the temporary or permanent cessation of OTP operations in other situations. Read the rest of the post here.

 

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