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Brigitte Hamadey Headshot

The Security Council Who Cried Wolf

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"Kony 2012" is one organization's attempt to demand the arrest and surrender of Joseph Kony, leader of the Lord's Resistance Army, to the International Criminal Court. While Invisible Children has succeeded in putting Kony back on a radar screen, the question is not whether their goal will be accomplished, but why their efforts might have been necessary in the first place. The YouTube sensation highlights the fact that there are outstanding arrest warrants issued by the International Criminal Court that demand the international community's attention.

One of the ICC's major realities is that it relies entirely on states to arrest and surrender accused to the Court. In this respect, state cooperation gives teeth to the ICC's bark. This is especially true for the Court's attempt to provide justice in Darfur and Libya, the situations referred by the UN Security Council, because neither Sudan nor Libya themselves requested ICC involvement. The Court has issued seven arrest warrants in these situations. To date, none of the suspects have been surrendered to The Hague.

Despite its leadership in referring the Darfur situation to the ICC, the Security Council has failed to pressure the Sudanese government to comply with its international obligations vis-à-vis the Court. For instance, since April 2007, when the Court first issued arrest warrants for suspects who have allegedly committed crimes in Darfur, the ICC Prosecutor has briefed the Security Council nine times on the situation in Darfur, including on Sudan's repeated refusals to cooperate. In May 2010, the ICC Pre-Trial Chamber informed the Security Council of its decision that Sudan has failed to comply with its legal obligations. In spite of these findings, the Council has turned a blind eye.

States have sometimes reneged on their commitment to accountability as a means to achieve peace and security. On June 27, 2011, the ICC issued an arrest warrant for Muammar el Qaddafi for crimes against humanity. Before Qaddafi's death, Britain, France and the United States -- leaders in the Security Council's vote to refer Libya to the ICC -- appeared to be negotiating a deal that might have enabled Qaddafi to escape justice.

The ICC also issued warrants of arrest for Qaddafi's son Saif Al-Islam Qaddafi, who is in militia custody in Libya, and for Abdullah Al Senussi, who remains in Mauritania since his capture last March. In an effort to try these individuals in national courts, Libya recently brought an admissibility challenge under Article 19 of the ICC's Rome Statute Treaty. Whether they will face trial in The Hague or in Libya is a decision for the ICC judges. If they decide that justice would best be served at the ICC, however, will the Libyans surrender Saif and will Mauritania hand over Al Senussi? If not, will the UN Security Council take the lead to encourage cooperation with the Court, or will the Council fall back on its previous behavior in the Darfur situation?

This trend of inaction and circumvention could have damaging repercussions for the ICC. At best, it risks delegitimizing the Security Council's role in referring situations to the Court by coming across as crying wolf. Indeed, the same suspects wanted by the ICC for crimes in Darfur are rumored to be committing alleged heinous crimes with impunity in South Sudan. South Kordofan governor Ahmad Harun, ICC suspect, was captured on video apparently inciting armed forces to commit war crimes. And the Council remains silent on calling for their arrest.

At worst, lack of state cooperation could divert confidence in the Court's ability to adjudicate in other situations and remain independent from political considerations. At this stage in the ICC's career, when it is establishing itself as an effective institution, deficiency in state support could be crippling.

Setting aside its critiques, "Kony 2012" is a demonstration that every-day citizens want to throw on their best vigilante cape and call out the international community where it falls short of its responsibilities. In hope this collective enthusiasm catches fire, such powerful calls for accountability would be well-aimed at members of the Security Council -- especially in advance of Luis Moreno Ocampo's last briefing to the Council as ICC Prosecutor on the Darfur situation in June.

Ten years ago this July, the International Crime Court was born when the Rome Statute Treaty entered into force. Over 160 states gathered in Rome to draft, negotiate and adopt the founding treaty, which envisioned an unprecedented vehicle to combat genocide, war crimes and crimes against humanity. Consistent state support for the ICC will ensure this institution grows the strong teeth it needs to deliver effective justice.