Special Reports
 
 


 

THE INTERNATIONAL CRIMINAL COURT: TEN YEARS OF SUCCESS
OR FAILURE?

by

PETER CRISELL

________________
  

   
“Injustice anywhere is a threat to justice everywhere”.
Martin Luther King, Jr.

International justice: an old or new idea?
Alongside centuries of armed conflict, there seems always to have existed a parallel belief that inhumane conduct –such as the abuse of prisoners and the rape of civilians - should be tried and punished by law. However, for centuries jurists perceived international law solely in terms of relations between states. Prosecution for war crimes was therefore only possible in national courts. In situations where the perpetrators of atrocities continued in power and the victims remained subjugated, justice was rarely done. (1)

The idea that there should be international laws to deal with war crimes usually collided with a contrary belief in state sovereignty, a principle established by the Peace of Westphalia in 1648. It was only at the turn of the twentieth century that the idea of international prosecution for human rights abuses began to take hold. The Hague Conventions of 1899 and 1907 were the first significant attempt to codify the laws of war in an international treaty. They provided for protection of civilian populations, respect for family honour and rights, for the lives of individuals and respect for religious convictions and practices. However, these were regarded as obligations whose breach was illegal but with no criminal liability or sanctions.

After World War 1 public opinion demanded not only the prosecution of those who had violated the laws and customs of war but also of those responsible for the war itself. The Versailles Treaty formally prosecuted Kaiser Wilhelm II and recognised the right of the Allies to establish military tribunals to prosecute German soldiers for war crimes. Success was limited. The German Emperor escaped to Holland which refused to extradite him and the few German soldiers who were prosecuted received only modest punishment. The application of international criminal sanctions was always open to the criticism that it was ‘victors justice’ retrospectively administered.

Following World War II, the major powers - the USA, Britain, France and the Soviet Union - agreed to set up the Nuremberg and Tokyo tribunals to try Axis war criminals. There were three categories of offence under the agreement: crimes against peace, war crimes and crimes against humanity. At Nuremberg, 24 Nazi leaders were indicted, 19 were convicted and 12 were sentenced to death.

In 1948, the United Nations General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide and invited the International Law Commission (ILC) of the United Nations “to study the desirability and possibility of establishing an international judicial organ for the trials of persons charged with genocide.” While the ILC drafted such a statute in the early 1950s, the Cold War defeated these efforts and the General Assembly effectively abandoned the project.

International justice reborn
The conflicts in Bosnia-Herzegovina and Croatia, and the appalling atrocities in Rwanda in the early 1990s led the UN Security Council to establish two ad hoc tribunals for former Yugoslavia and Rwanda to try those accused of crimes against humanity, war crimes and genocide. Thus, a form of international criminal justice was established but only limited to specific countries. It was a small step towards something more global.

In 1994, the ILC presented a draft statute for an International Criminal Court to the UN General Assembly and recommended that a conference be convened to negotiate a treaty and enact the statute. The UN “Rome Conference” took place in 1998. Of the 192 countries that are members of the UN, 160 countries participated in the negotiations. 120 nations voted in favour of the adoption of the Rome Statute of the International Criminal Court (ICC). Seven nations voted against the treaty, including the United States, Israel and China, and 21 states abstained. The treaty came into force on 1 July 2002. So far 139 countries have signed the ICC treaty. Countries which only sign are obliged to refrain from acts that would defeat the object and purpose of the treaty. The 121 countries that have signed and ratified the treaty are bound by it and in so doing become ICC ‘state parties’. China, India and Indonesia are among countries which have neither signed nor ratified the treaty.

The United States, under the Clinton Administration, signed the Rome Statute in 2000 but did not put it before the senate for ratification. The Bush Administration stated it would not join the ICC. The current Obama administration has a good working relationship with the court. In March 2011, the US supported a unanimous UN Security Council resolution requesting the ICC’s prosecutor to investigate whether there was sufficient evidence for alleged crimes against humanity by the Gadaffi regime in Libya to warrant a full investigation.

The reasons for the US’s ambivalence towards the ICC have been much debated. It has been argued by some that the constitution would have to be amended for the treaty to become legally binding, although this is disputed. President George W. Bush rejected signing, citing fears that Americans citizens, while rampaging around the world fighting the war on terror, could be unfairly prosecuted by an over-zealous ICC Prosecutor. The current more flexible approach by the US administration suggests a growing awareness that a more cooperative approach to the court may serve its interests better.

The ICC’s structure and legal framework
The ICC is an independent court – it is not part of the United Nations although it works in close cooperation with it - and is based in The Hague in the Netherlands. (2) The court is divided into three: Pre-Trial, Trial and the Appeals Divisions. It is the first permanent international judicial body capable of trying individuals for genocide, crimes against humanity and war crimes. However, there are limits to its powers. The ICC can only exercise its jurisdiction if domestic courts are unwilling or unable to prosecute. This principle of ‘complementarity’, as it is clumsily called, means that it will not act if a case is investigated or prosecuted by a national judicial system unless the proceedings are not genuine. This might occur, for example, where formal proceedings are undertaken solely to shield a person from criminal responsibility. The ICC only tries those accused of the gravest crimes and - doubtless to avoid accusations of ‘retrospective justice’ - it can only prosecute crimes committed since 2002.

The ICC draws on the Rome Statute as a source of law but the Statute alone cannot provide answers to every legal problem that is likely to arise. The court is therefore entitled under international law to resort additionally to international treaties, international custom and general principles of law recognised by civilised nations. Previous judicial decisions and academic writings are subsidiary sources.

ICC judges, its Prosecutor and Deputy Prosecutors and officials are elected by the Assembly of States Parties (ASP). The ASP is the Court’s governing body and consists of one representative from each of the States that have ratified the Rome Statute. It meets at least once a year to discuss and decide on issues that are central to the Court, such as the election of judges and prosecutors, the adoption of the ICC's budget and cooperation between States and the Court.

An ICC investigation may be triggered by one of three sources: by a state party referral, by the UN Security Council or by the Prosecutor. The state party referral may be a complaint against another state or may be a ‘self-referral’. This does not mean that a state seeks to prosecute itself but it could be seeking the prosecution of rebel groups operating within its own borders. The UN Security Council’s referral can be seen as part of its responsibility for the maintenance of international peace and security, a duty which it also exercised when it established the ad hoc tribunals in the 1990s. But the power of the Prosecutor has always been a delicate one and posed a difficulty for the countries setting up the ICC. Should the Prosecutor of an international criminal court act only when prompted by a state party or by the Security Council or should the Prosecutor be able to initiate an investigation independently? This question doesn’t arise for national prosecutors in domestic prosecutions simply because that all non-trivial crime is prosecuted as a matter of course. Nor was this an issue with the ad hoc tribunals where the prosecutor’s job was narrow and clearly defined. But the ICC’s remit is wide-ranging and global with large numbers of alleged human rights abuses awaiting attention. Many states – themselves non-members of the Security Council and perhaps resentful of the Security Council’s power – favoured an independent prosecutor with wide-ranging discretionary powers. Despite opposition from powerful states such as the US and China – fearful of the threat posed by an independent prosecutor - the view prevailed that the Prosecutor should be able to initiate investigations and this was incorporated into the Rome Statute.

Justice Louise Arbour, Prosecutor of the ad hoc tribunal for the former Yugoslavia, speaking to the Preparatory Committee on the Establishment of an International Criminal Court in 1997 declared that discretion to be exercised by the Prosecutor is “ill-defined and complex” and added that she believed “the real challenge to a Prosecutor is to choose from many meritorious complaints the appropriate ones for international intervention, rather than to weed out weak or frivolous ones.”

So far, the ICC has opened investigations into seven ‘situations’ -as they are termed - all of them in Africa: the Democratic Republic of Congo (DRC); Uganda, Sudan, the Central African Republic, Kenya, Libya and the Ivory Coast. Of these seven, three were referred to the Court by the states parties (the DRC, Uganda and the Central African Republic), two were referred by the UN Security Council (Darfur and Libya) and two were begun by the Prosecutor himself (Kenya and the Ivory Coast).

The ICC at work
In 2003, the ICC prosecutor began investigations into war crimes and crimes against humanity in the Ituri region of the DRC. (3) Warlords and fighters from other areas and countries had moved in and were terrorising civilians there. In 2004, the DRC president recommended that ICC investigators consider crimes committed all over the nation. The ICC prosecutor issued four arrest warrants, which led to the arrest of three militia leaders. In March this year the ICC found warlord Thomas Lubanga guilty of recruiting and using child soldiers between 2002 and 2003. Amazingly, it was the court's first verdict since it was set up 10 years ago. Lubanga headed a rebel group during an inter-ethnic conflict in a gold-rich region of Democratic Republic of Congo. The prosecution accused him of using children as young as nine as bodyguards and fighters. The judges said evidence proved that as head of the Union of Congolese Patriots (UPC) and its armed wing, Lubanga bore responsibility for the recruitment of child soldiers under the age of 15 who had participated actively on the frontline.

On May 2007, the ICC began an investigation in the Central African Republic into serious crimes committed since July 1, 2002. The government of the Central African Republic referred the case to the ICC in 2004. The ICC investigation was especially concerned with sexual violence, a central feature of the conflict. In May 2008, the ICC Prosecutor issued an arrest warrant for Jean-Pierre Bemba, former Vice-President and sitting Senator from the DRC. Since November 2010, Mr. Bemba has been on trial at the ICC for failing to stop the rapes, killings and pillaging allegedly perpetuated by his Movement for the Liberation of Congo (MLC) troops. He has pleaded not guilty to three war crimes and two crimes against humanity. The trial continues.

On October 3, 2011, the ICC allowed the prosecutor to open an investigation into the situation in Ivory Coast. The prosecutor requested the Court’s authorization to initiate an investigation into alleged crimes committed during the post-election violence in the country. Ivory Coast is not a state party to the Rome Statute but has declared it accepts the jurisdiction by the ICC with respect to crimes committed on its territory. In consequence, Ivory Coast's Laurent Gbagbo became the first former head of state to appear at the International Criminal Court in The Hague. He faces four charges of crimes against humanity, including murder and rape, following disputed presidential elections a year ago. Some 3,000 people were killed in violence after Mr. Gbagbo refused to accept defeat in the 2010 polls. He has denied responsibility for the violence.

In March 2010, the ICC authorized the prosecutor to open formal criminal investigations into the violence that took place in Kenya after the 2007 elections. This decision came after the Kenyan government failed to set up local tribunals to try the people responsible for orchestrating the attacks which left more than 1,100 people dead. This is the first case in which the Prosecutor decided to start investigations on his own authority and the first case unrelated to a civil war and armed conflicts. On January 23rd ICC judges ruled that four senior Kenyan figures were accused of inciting violence following the disputed presidential election of December 2007. Charges against two other suspects were dismissed for lack of evidence. The charges against William Ruto, Kenya’s former education minister suspended on corruption charges, Joshua Arap Sang, a broadcaster for Kass FM radio station, cabinet secretary Francis Muthaura, and deputy prime minister Uhuru Kenyatta, were upheld. Ruto, Muthaura and Kenyatta all stand accused of instigating the violence that swept Kenya in late 2007 and early 2008. Arap Sang is accused of contributing towards the commission of these crimes by putting Kass FM at the disposal of those organising the violence.

On 26th February 2011, the UN Security Council adopted a resolution referring the situation in Libya to the ICC, amidst allegations of atrocities by the Gadafi government. This is only the second Security Council referral, and the first to be adopted unanimously. Since the overthrow of Gadafi, the ICC prosecutor has said an investigation will be launched into war crimes allegedly committed by NATO in Libya. Alliance members will be investigated alongside former rebels and Gaddafi loyalists. The court’s chief defence counsel has called on the court to make a formal complaint to the UN about Libya’s failure to hand over war crimes suspect Saif al-Islam Gaddafi, second son of the late Muammar Gaddafi. Patience with the Libyan authorities, who have held Gaddafi in isolation for four months, is all but exhausted. Libya says it will try Gaddafi for "murder, rape and torture" on home soil. But the ICC, which has charged him with war crimes and crimes against humanity, is concerned he will not get a fair trial in Tripoli. Recent reports suggest that the ICC could soon drop its demand that Saif al-Islam Gaddafi be transferred to The Hague for trial, and has agreed to a trial inside Libya subject to the condition that it is under ICC supervision.

The situation in Darfur in Sudan was the first time the UN Security Council referred a case to the ICC. It was also the first time the US compromised on its opposition to the ICC. The ICC prosecutor issued three arrest warrants for the leaders of the Sudanese government and the Janjaweed militia, including President Omar al-Bashir. All remain at large. The Sudanese government resisted the investigations into killings and human rights violations committed by Sudanese government-sponsored militias in the region. For the first time, the International Criminal Court in 2010 accused a sitting head of state of committing crimes of genocide. The ICC charged Sudanese President Omar Hassan al-Bashir with three counts of genocide, including targeted mass killing and causing serious bodily or mental harm to members of a target group. Bashir's National Congress Party rejected the court's decision and will disregard the second arrest warrant for al-Bashir. The human tragedy is enormous. According to the UN, the genocide in Darfur has claimed 400,000 lives and displaced over 2,500,000 people. More than one hundred people continue to die each day; five thousand die every month. 2.7 million Darfuris remain in internally displaced persons camps and over 4.7 million Darfuris rely on humanitarian aid.

In October 2005, Ugandan suspects became the first people ever officially indicted by the ICC, after a referral to the court by the Uganda government. The ICC prosecutor issued five arrest warrants for top officers of the Lord's Resistance Army (LRA), including its leader, Joseph Kony. None of them were handed over to the ICC. The ICC was criticised for a lack of impartiality, as no arrest warrants were issued against the Ugandan armed forces. International and domestic experts have been debating these issues since the investigations began in January 2004.

The ICC's 10th anniversary will be celebrated this year by all those involved in the fight against impunity for grave crimes. It is an opportunity to reflect upon the progress made in the field of international criminal justice in the past 10 years. The anniversary may also serve as a reminder to all those states committed to justice that they should continue to support the Rome Statute.

Achievements and shortcomings of the ICC
The ICC investigations outlined above demonstrate the considerable achievements of the ICC in its ten year history, considering the enormity of the task facing it when it was set up. An international court is necessarily staffed by judges and officials from different cultures and legal traditions. To establish common procedures requires training and experience over many years. If it is to be effective it must send a message to human rights abusers around the world that they will be prosecuted, tried and convicted for their activities. This cannot and should not be achieved by the ICC alone. The principle of complementarity applies. Individual nation states continue to have obligations under international human rights laws such as the Geneva Convention to uphold their citizens’ human rights.

Nation states were reminded of their obligations when a review conference of the state parties to the ICC was held in Kampala, Uganda in 2010. A resolution recognised the primary responsibility of states to investigate and prosecute the most serious crimes of international concern and the desirability for states to assist each other in strengthening their domestic capacity. This is to ensure that investigations and prosecutions of serious crimes of international concern can take place at the national level. Too often countries hide behind the doctrine of state sovereignty and non-interference in each others’ affairs. We must remember that the ICC has the capacity and resources to handle only a small number of the most intractable and important cases which the countries themselves cannot or will not undertake.

The cost of the ICC is often cited by the state parties who point to the slow pace of prosecutions as justification for shaving a few millions off the agreed budget. The ICC’s current annual budget is $140 m (£90m). Since its inception its estimated spending has been $900m (£600m). But as Prof. Philippe Sands of University College London says “The costs of the Lubanga trial and the ICC as a whole are small compared to the global aid budget, and completely irrelevant as compared with defence spending." (4)

During the decade of its existence, there have been criticisms that the procedures of the court have proved too cumbersome and expensive. The delays that have occurred suggest that judges have done little to speed things up at the pre-trial stage. Cases have been abandoned before coming to trial and defendants released after prolonged detention. In the Lubanga case, mentioned above, the defendant was arrested in March 2006 under an ICC warrant for crimes allegedly committed in 2002 and 2003. His trial scheduled for June 2008 was delayed for six months and the verdict was only delivered in March this year. However, the trial could and should have started many months earlier had not the Prosecutor refused to disclose hundreds of documents which might have aided the defence case. This almost led to Lubanga being released and the trial collapsing. This particular case also highlights another criticism of the ICC – that it overlooks crimes of sexual violence committed against women and girls. Despite abundant evidence, Lubanga was not charged with these offences.
In evaluating the successes and failures of the ICC, the role of Prosecutor has been pivotal. Luis Moreno Ocampo of Argentina was appointed in 2003 and is shortly to retire at the end of his nine year term. He has been much criticised for his selection and conduct of cases but as UK human rights lawyer, Geoffrey Bindman, states that although Moreno Ocampo has hardly covered himself with glory during his term of office, “it would be wrong to make him the scapegoat for the shortcomings of the ICC during its first 10 years”. He adds that it misses the point and that “the problems of the ICC are structural and inherent in the magnitude of its task. They cannot be reduced to the individual qualities of particular officials, however prominent in the organisation.” ….”An international tribunal does not have the weight of the authority of a unitary government to back it. It must proceed cautiously because it is a constant challenge to the conflicting political interests of its constituent sovereign states”. (5)
Nevertheless, the role of the Prosecutor needs to be re-examined. In attempting to allay the fears of the USA, China, Israel and others who opposed an independent prosecutor, the Rome Statute provided that the Prosecutor’s independence be modified by a measure of oversight from the ICC’s Pre-Trial Chamber. Therefore, the Prosecutor must submit a request to it for authorisation to proceed. This can only be granted if the Pre-Trial Chamber considers the case to be within its jurisdiction and that there is a reasonable basis to proceed with the investigation. If so satisfied, the Prosecutor’s investigation can begin.

The idea behind an independent prosecutor is that the interests of justice are more likely to prevail over political interests. This is easier said than done. The Prosecutor is necessarily operating in a political environment and justice may demand that the Prosecutor has to consider, for example, the wider interests of the international community or the political implications for the state under investigation. Once aware of the sensitivities involved, the Prosecutor might decline to proceed with an investigation when, for example, delicate peace negotiations are in progress. There is little agreement among commentators and legal practitioners as to whether the Prosecutor would be right to do so. It is consequently impossible to predict what a Prosecutor might decide to do in the interests of justice. In pursuing a case in the midst of violence committed by different parties the Prosecutor’s progress may depend on the cooperation of some of those who have perpetrated it. Such are the moral dilemmas the Prosecutor may face.

In such circumstances it would not be surprising that the Prosecutor takes the line of least resistance by using limited resources to focus only on investigations that are politically feasible. International human rights expert, William Schabas states that chief prosecutor Jose Luis Moreno Ocampo has “avoided situations where he would likely step on the toes of permanent members of the UN Security Council, from Afghanistan to Gaza, to Iraq, to Columbia." (6) This might explain why, during his nine year term of office, his focus has been on Africa over other parts of the world. As Nicholas Waddell and Phil Clark put it:
“The fact that the ICC has focused so overwhelmingly on African situations speaks partly to the prevalence of violations of international criminal law in Africa but also prompts questions as to why the gaze of international criminal justice falls in some places and on some people but not on others.”(7)

Some critics have argued that the ICC’s agenda is a disguised form of neo-colonialism or ‘white man’s justice’. For example, Ghanaian writer, Yaya Zeebo, states that ICC trials are designed to target the leaders who have offended western interests and are working to a script targeting Washington, Paris and London. A contrary view is taken by Abdul Tejan Cole, a Sierra Leonean legal practitioner and the Commissioner of Sierra Leone's Anti-Corruption Commission. (8) Ordinary Africans, he says, are not complaining and he reminds critics that Africa played a big role in establishing the ICC. 11 African countries have not signed the Rome Statute but 33 have ratified its provisions, making Africa the most heavily represented region in its membership. DR Congo, Uganda and the Central African Republic - were self-referrals to the Court by the respective governments.

The Gambia's Fatou Bensouda, who is about to succeed Moreno Ocampo as Chief Prosecutor, declared that "the high rate of referrals in Africa could just as easily show that leaders on the continent were taking their responsibilities to international justice seriously." Only Kenya and Ivory Coast were referred to the ICC at the instance of the prosecutor. In Kenya’s case, it was only after Kofi Annan, Chairman of the African Union Panel of Eminent African Personalities, handed over a sealed list of suspects to the ICC and after the Kenyan parliament dithered over the establishment of a national tribunal. However, the perception will persist that the ICC is only targeting Africans until it launches its first non-African prosecution.

Whatever the arguments, the ICC’s investigations in other parts of the world have still to yield results. The Prosecutor stated in 2006 that he had received 240 communications in connection with the invasion of Iraq in March 2003 which alleged the invasion was illegal and that various war crimes had been committed. He concluded that the court had no mandate to rule on the legality of the invasion. He concluded that the situation in Iraq did not appear to meet the gravity threshold necessary to initiate any such investigations, and that there was a reasonable basis for believing that there had been an estimated 4 to 12 victims of wilful killing and a limited number of victims of inhuman treatment, totalling in all less than 20 persons. Moreno Ocampo stated that there was insufficient evidence for proceeding with an investigation in connection with the targeting of civilians or clearly excessive attacks.

On April 12th this year, the ICC prosecutor rejected a request by the Palestinian Authority to recognise the court's jurisdiction. The decision blocks a move to have the ICC investigate the 2008-2009 Gaza war. The prosecutor said it was up to "relevant bodies" at the UN or ICC member countries to determine whether Palestine qualified as a "state". Only then could it sign the Rome Statute. An Israeli foreign ministry spokesman said it welcomed the decision, and confirmed that it did not recognise the ICC's jurisdiction. Another challenge for the ICC is its relationship with countries in transition – such as we are currently witnessing in Libya.

Luis Moreno Ocampo’s deputy, Fatou Bensouda of the Gambia, takes office as Prosecutor of the ICC on June 16 this year.(9) As the court's second Prosecutor and the first African woman to assume the top job at an international tribunal, she faces daunting challenges in advancing the court's significant, but still fragile, progress.

References
(1) An Introduction to the International Criminal Court by William A. Schabas. Cambridge University Press (4thed. 2011)

(2) www.icc-cpi.int

(3) www.globalpolicy.org

(4) www.m.bbc.co.uk

(5) www.guardian.co.uk

(6) www.guardian.co.uk

(7) Courting Conflict? Justice, Peace and the ICC in Africa. Ed. Nicholas Waddell and Phil Clark. Published by the Royal African Society.  www.royalafricansociety.org

(8) www.bbc.co.uk

(9) www.bbc.co.uk