Judges Do Not Stop Bank Robberies

The 10^th anniversary of the entry into force of treaty that set up the International Criminal Court (ICC) is a good moment to look back and ahead. There are now 15 cases from 7 situations before the court. Three are so-called self-referrals – Uganda, DRC, and the Central African Republic – and two cases came via the Security Council: Darfur and Libya. The Prosecutor, with leave from the judges, used his own powers to examine the situation in Kenya and Cote d’Ivoire. These are great achievements for an institution that is only 10 years old. There is also criticism. Too few cases. All in one continent. Too expensive. Too slow. But the fact that there is so much debate about the court is also a good thing: it shows that there is commitment, expectations, and concern.

The Court is however only very slowly being fully embedded into the international political system. ‘Judges do not stop bank robberies’ is something generally well understood within national legal orders but somehow not yet fully grasped in the cauldron of international politics.

Imagine an ongoing bank robbery. Masked men are holding two women and five young children hostage, demanding that the safe be opened immediately. A teller has been shot and is visibly bleeding to death. In almost every country a well- armed elite unit of the army or police would be called and given full authority to do what is needed to stop the ongoing crime and end the danger to the lives of civilians. At the international level things seem to be different. There, in situations where there is ongoing (mass) violence, the debate quickly concentrates on giving the ICC (or in some instances another internationalized court) jurisdiction and with that, commencing investigations that would lead to the arrests of war criminals. In other words, one of the first numbers that is called is that of a prosecutor and/or judge.

The reasons for this probably differ. Some may call for judges for want of anybody else wiling to pick up the phone. Others may do it because they simply do not know any better. It is also possible that some shout for judges because it makes it look as though one is doing something without having to really commit to a dangerous situation. Lastly, it may be that the judges are being called by well intending souls that want the international justice and the ICC to be seen – as quickly as possible – as a potent tool, well embedded in the international peace and security debate.

The simple fact is that a judge will not stop a bank robbery. The president of a national court in a country with a developed rule of law is not alone, but embedded in a system. It has hard components like the police and the army, and softer ones like educational institutions and social security and welfare organizations. It is in that systemic relationship that judges and prosecutors play their role as the last stopgap for unacceptable behaviour. After 10 years ICC, that general context is to a large extent still lacking.

Ongoing situations of violence need clever, effective politics combined with well-trained, well-armed units with full authority to do what is needed to stop the ongoing crimes and end the danger to the lives of innocent civilians. Around that, the ‘never again’ ideal requires the building of systemic and institutional relationships with hard and soft components within which the justice ideal is embedded. Leadership in setting up these relationships cannot come from the judges. It must come from the political side, both at the national and international level. Peace enforcement, peace building, development, international justice, national justice and building the national rule of law, must be much more integrated, with governments, civil society, and international organisations all playing their role, a role they understand.

This is the task for the next 10 years. And the States Parties have much more homework to do in this respect than the judges and the prosecutors of the Court. They have gone as far as they can. Great care must be taken not to suggest that the Court can, by exercising its jurisdiction, stop ongoing violence or worse, bring peace. The Court must be able to rely a system that understands the specific role it can play and which does not push it towards missions impossible. The institution is too important for that. And the victims of the crimes deserve better.