ICC's chief prosecutor fights to prove the institution's worth

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For more than six years, Sudanese President Omar al-Bashir has been a wanted man here in the sterile Dutch city that hosts the International Criminal Court. But Mr. al-Bashir has not only continued to rule his country with impunity. He travelled widely across Africa and the Middle East – even visiting China in 2011 – thumbing his nose at the ICC as he went, while his hosts ignored demands that he be seized and sent to The Hague.

In December, the ICC's chief prosecutor, Fatou Bensouda, effectively gave up, announcing her office had suspended its pursuit of Mr. al-Bashir, who was charged with 10 counts of war crimes, genocide and crimes against humanity committed in the Darfur region. She said she needed to "shift resources to other urgent cases."

It was part admission of defeat, part cry for help. Speaking to The Globe and Mail last week, a feisty and defensive Ms. Bensouda portrayed her office as underfunded to the point it can't handle all nine open investigations on her desk, let alone the nine other situations where the ICC has been asked to determine whether war crimes were committed.

"There is no point creating this institution and not giving it the support it needs, the funds it needs to be effective," Ms. Bensouda said in a rare and wide-ranging interview. Her brightly coloured traditional African dress stood out against the drab surroundings of her office in the tower above the ICC courtrooms and detention centre. "The [prosecutor's] office is overstretched because of the many situations that are presenting themselves to us now."

Ms. Bensouda said funding shortfalls have forced her to "hibernate" some of the open prosecutions – such as the one against Mr. al-Bashir – while restricting the scope of others.

In many ways, it's the ICC – as well as Ms. Bensouda – that's now in the dock, as criticisms about the court's ineffectiveness and its focus on Africa swirl and Ms. Bensouda prepares to wade into the controversial file of possible war crimes committed in the Palestinian territories.

The Palestine file is a bombshell, and could pose another threat to the court's funding. Canada, in particular, has already fought hard at the court's annual budget meetings against requests for more funding. It then warned of potential repercussions after Ms. Bensouda's office opened a preliminary investigation into possible war crimes committed in the West Bank and Gaza Strip, raising the possibility for charges to be filed against both Israelis and Palestinians.

The Foreign Affairs Department, in an e-mailed statement, said that "Canada is concerned about the rate of growth of the ICC budget and we continue to monitor the finances of the ICC." Separately, the department has said it was concerned that Palestine's "purported" accession to the ICC "greatly risk[s] politicizing the activities of the court."

The court's $202-million (U.S.) budget for 2015 was set before the Palestinian Authority joined the court and requested a preliminary investigation. (A United Nations General Assembly majority recognized Palestine as a state in 2012 – although Canada and other countries reject the designation – and it joined the ICC on Jan. 1.)

That budget also did not anticipate, or make allowance for, the arrest of Lord's Resistance Army commander Dominic Ongwen, who was handed over to the court last month. Mr. Ongwen's sudden arrival in The Hague – he made a pretrial appearance on Jan. 26 – is forcing Ms. Bensouda's team to scramble to reassemble a case that was dormant for a decade.

Ms. Bensouda said she was "surprised" by the hard line Canada has taken toward funding increases, given the country's support for the ICC since its founding. "We try to understand why a position is taken," she said.

But Canada is not alone in questioning the value of the ICC, a permanent institution that is separate from the ad hoc international tribunals created to try accused war criminals in Rwanda, the former Yugoslavia and elsewhere. The ICC has drawn criticism for its track record – just two convictions in 13 years, of two little-known Congolese warlords – and its focus on Africa. All nine open investigations are on the continent, and all 31 arrest warrants have targeted Africans.

The announcement that Mr. al-Bashir was no longer being actively pursued came just days after Ms. Bensouda was forced to end her efforts to prosecute Kenyan President Uhuru Kenyatta, who had been charged with five counts of crimes against humanity in relation to the ethnic violence that followed Kenya's disputed 2007 election. Ms. Bensouda said the case against Mr. Kenyatta effectively evaporated – with key witnesses reversing their testimony – because of "an unprecedented level of witness intimidation, witness harassment, bribery and corruption."

But Ugandan President Yoweri Museveni said the two cases showed it was time for African countries to withdraw en masse from the ICC, which he said had become a tool for "oppressing Africa."

The Gambian-born Ms. Bensouda gets testy when asked about the court's focus on Africa. "The ICC is not in Africa by choice. This has to be clear," she said. "Unfortunately, on our continent, it has been very, very turbulent, and a lot of crimes have been committed. We have to think about the victims as well. In these situations, the victims are African victims."

The spectacular failure of those prosecutions – two files that Ms. Bensouda inherited when she became chief prosecutor in 2012 – also exposed the court's limitations in its ability to pursue sitting head of states. (Former Côte d'Ivoire president Laurent Gbagbo is in custody in The Hague and awaiting trial, but his arrest came after he fell from power.)

"I think [the Kenyatta case] was a defeat, maybe not for the court as a whole, but certainly for the Office of the Prosecutor," said Stephanie Barbour, who heads Amnesty International's office in The Hague. The case, she said, revealed one of the crucial limitations of the international court: Lacking a police force of its own, the ICC is reliant on the co-operation of its member states. "And you can be in the position of trying to prosecute someone within that state apparatus."

The ICC is even more restricted when it comes to cases involving states that haven't signed up as members. Syrian President Bashar al-Assad's alleged use of chemical weapons against his own citizens, and the so-called Islamic State's horrific violence, demonstrate that neither has any fear of the ICC.

The court is hamstrung in Syria because Damascus is not a signatory of the Rome Statute that founded the ICC. The only way the court can gain jurisdiction over a non-member – through a UN Security Council mandate – is blocked because Syria's ally Russia is a veto-wielding permanent member of the Security Council.

Ms. Barbour said the allegations of racism and colonialism over the ICC's focus on Africa "really do hurt the work of the court, and the whole of international justice. Worse than that, the ICC is not responding to impunity wherever it can. It's problematic that the Security Council is not helping the ICC respond to impunity wherever it can," she said.

More trouble lies ahead, following Palestine's accession to the court. The Palestinian government has given the ICC jurisdiction over its territory from June 13 of last year, the start of a bloody conflict in the Gaza Strip that left more than 2,100 people dead and saw both the Israeli army and the Hamas militant group accused of war crimes.

Because the ICC can only intervene where local justice fails – and Israel can argue that it has a justice system that deals with alleged war crimes – "it is just as likely that Palestinians would appear before the ICC as any Israelis would appear before the ICC," said Matthew Cannock, legal officer for the Coalition for the International Criminal Court, a consortium of non-government organizations that support the ICC's work.

"We hear that the ICC only targets Africa, that the ICC will never pursue investigations against politically powerful states. [Palestine] is a bit of a test," Mr. Cannock said.

While not a member of the ICC, Israelis could theoretically be indicted by the court over military and settlement activity on whatever it deems to be Palestinian territory (another complicated question).

A furious Israeli government has asked its allies who are members (including Canada, Germany, Japan, Australia and Britain) to withdraw their funding of the ICC if the court opens a formal investigation into Israelis. Those requests have reportedly been rebuffed, though Canada has filed a formal protest with Ms. Bensouda's office, saying that it didn't recognize Palestine as a state or the Palestinian Authority's ability to request an ICC investigation.

Ms. Bensouda said she was aware of the politics swirling around the Palestinian request for an investigation, but vowed "political considerations will never, never form part of my decision-making."

Some international justice experts say Ms. Bensouda is part of the court's problem, and question whether the 54-year-old is the right person to lead the prosecutor's office at a time when the court is under fire from many directions. Many here whisper that she was promoted without much debate because – as an African – she gave the court a more acceptable face as it pressed on with its Africa-focused prosecutions.

"The ICC is an institution without direction," said Peter Hayes, a lawyer who has defended accused war criminals at both the ICC and the Yugoslavia tribunal, which he said was much more focused, and thus much more effective. He said Ms. Bensouda erred when she chose to stick with the team of prosecutors she inherited in 2012, rather than shaking up an office that had struggled to deliver successful prosecutions.

"I think direction needs to come from the chief prosecutor," Mr. Hayes said. "I think most people would say she hasn't done great so far."

Ms. Bensouda also rejects the idea that her office, or the court, is failing. The ICC should not be judged solely on the number of convictions, she said, but by the overall impact its existence has had.

She pointed to the declining use of child soldiers in Africa as a victory for international justice that the court played a role in. Similarly, she believes the fact the 2013 elections in Kenya were conducted without a repeat of the 2007 violence agains shows how "the shadow of the court" has an effect even when it's not making arrests.

"People must be patient. International criminal justice is very complex. We intervene in very complex situations. … The fact that we are there, that we are investigating these situations, I believe, is already having a huge impact."

She also vowed that she wasn't giving up on some day bringing the likes of Mr. al-Bashir, Mr. Kenyatta or Mr. Ongwen's long-time commander – Lord's Resistance Army chief Joseph Kony – to trial in The Hague.

"I will definitely agree that there are immense difficulties, immense challenges," she said. "I believe that it may take long – and for the time being it may look impossible – but I believe both the heads of militia and the heads of state will face justice before the ICC."