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Last week, the International Criminal Court convicted a war criminal. And that revealed one of the ICC’s weaknesses.

- March 28, 2016

Last week, the International Criminal Court read its judgment in the case of The Prosecutor v. Jean-Pierre Bemba Gombo. The ICC found the former vice president of the Democratic Republic of the Congo guilty of acts of rape, murder, pillaging and crimes against humanity committed during the 2002-2003 war in the Central African Republic. The court’s guilty verdict was notable for a number of reasons. It identified rape and sexual assault as war crimes. It clearly identified commanders’ responsibilities for their soldiers’ conduct. And it was the culmination of more than 11 years of work since the CAR referred the situation to the ICC in late 2004.

For international courts to adjudicate effectively, member states must cooperate with them. Bemba’s case was no exception. His trial required intense cooperation and coordination between the ICC and authorities in the Central African Republic, where the crimes took place. How did CAR cooperate? Through:

  • Ratifying and committing to the Rome Statute, which authorizes the ICC;
  • Referring the 2002-2003 violence to the ICC for investigation;
  • Handing over court documents from the CAR’s own prosecution of Bemba;
  • Allowing the ICC to conduct site visits in the Central African Republic; and
  • Protecting witnesses and evidence, among other things.

The case against Bemba also required help from the Belgian government, which arrested and turned Bemba over to the ICC, and Portuguese authorities, who monitored Bemba’s bank account to track when funds were withdrawn.

In our forthcoming article at Human Rights Quarterly, “Who Pursues the Perpetrators: State Cooperation with the ICC,” we consider when the ICC can expect such working partnerships and when it is likely to struggle for cooperation.

When do governments cooperate with the ICC to help investigate and prosecute war crimes?

Bemba’s case illustrates the conditions under which we would expect states to cooperate with the ICC. First, it is an example of a mechanism that we call the “international legal lasso.” Bemba led a Congolese militia called the Mouvement de Libération du Congo (MLC). During the war in the CAR, Bemba allied with then-president Ange-Félix Patassé to stop a rebellion led by the former chief of staff of the CAR military, François Bozizé. Bozizé and his rebel group won the war; he became president of the Central African Republic.

Although Bemba was from the Democratic Republic of the Congo and had political ambitions there, he posed a military and political threat to the newly instated Bozizé. Cooperating with the ICC helped Bozizé in three ways. First, cooperation showed Western partners and donors that Bozizé was committed to accountability and the rule of law. Second, the ICC’s prosecution offered a mechanism — the international legal lasso — to get rid of one of Bozizé’s potential challengers.

Third, working with the ICC to prosecute Bemba helped Bozizé distract from and delay any possible investigation into his own troops’ wrongdoing. International courts can take years — as with Bemba — to open, hear and adjudicate a case.

Our research suggests that when violence is two-sided, the victors are more likely to cooperate if they can ensure that the ICC tries their opponents first. The victors calculate that a full decade could lapse before the court tried another party in the conflict. At that point, they can threaten to suspend cooperation.

In Côte d’Ivoire, for example, President Alassane Ouattara generally cooperated with the ICC while it sought to indict his opponent, former Ivorian president, Laurent Gbagbo. But when the ICC went after Simone Gbagbo, Gbagbo’s wife, pressure also mounted for the ICC to investigate and indict suspected perpetrators who were allied to the government. And so the Ouattara administration reduced its cooperation.

When do governments decline to help the ICC?

But these three factors — an incentive to use the international legal lasso, a dependence on foreign aid and a desire to delay an investigation — aren’t always in place. And when they’re not, governments often prefer to stonewall the ICC, as the court’s short list of convictions — three to date, including Bemba’s — suggests.

In particular, the ICC struggles to get states to cooperate when, first, it has indicted a member of the government’s ruling party or coalition, and, second, when there’s no guarantee that the opposition will be investigated and tried first. The best way for perpetrators to avoid ICC prosecution is to win on the battlefield and at the ballot box.

That has serious implications for the court and for international criminal justice. First, the court cannot successfully mount cases without state cooperation. Consider, for instance, the case against Kenyan President Uhuru Kenyatta, which was so plagued with evidence tampering and witness intimidation that the prosecutor was forced to drop it.

Second, inconsistent cooperation and the difficulty in pursuing cases threatens the ICC’s legitimacy, especially when stakeholders consider the court’s $1 billion price tag for its first two guilty verdicts.

Third, if political elites can maneuver around the sequencing and timing of the ICC’s investigations and indictments, the court may not be consistently applying the Rome Statute’s rules about opening cases. The court is criticized as being biased in its case selection; this inconsistency doesn’t help.

Fourth, and most important, the politics of cooperation undermine the ICC’s explicit goal of deterring atrocity. If potential perpetrators know that they can avoid judgment at the ICC either by winning or refusing to cooperate, what they learn isn’t to refrain from committing atrocities. It’s to win and stay in power, at any cost.

Courtney Hillebrecht is an assistant professor of political science at the University of Nebraska-Lincoln and author of Domestic Politics and International Human Rights Tribunals: The Problem of Compliance (Cambridge University Press 2014).

Scott Straus is professor of political science and international studies at the University of Wisconsin-Madison and the author of Making and Unmaking Nations: War, Leadership, and Genocide in Modern Africa (Cornell University Press 2015).