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International Criminal Court still faces major challenges in fighting impunity

By       Message Ivar Scheers     Permalink
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Ratko Mladic by Blakanfile

In an interview with TIME in 2007, Juan Me'ndez, director of the International Center for Transitional Justice, mentioned that the next few years would tell whether the ICC was going to be a success or failure. He thereby referred to the objectives the International Criminal Court (ICC) in The Hague, The Netherlands had to fulfil in the years to come. "If the prosecutor ends up only producing two or three trials and has 20 outstanding warrants, the appetite for international criminal justice will fade away completely." In a nutshell, Me'ndez summed up the tremendous task the ICC and its current prosecutor Luis Moreno-Ocampo were facing. And they still are.

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In 2002 the constitutional Rome Statute of the Court - signed four years earlier at a diplomatic conference in the Italian capital - entered into force, thereby establishing the first permanent international constitution with the capability of prosecuting those individuals that committed the most heinous crimes against humanity. The ICC issued its first arrest warrants in 2006 and began its first-ever trial in 2009, in which former Congolese rebel leader Thomas Lubanga is accused of conscripting and enlisting children for participation in combat. That same year it issued its first arrest warrant for a sitting head of state, charging Sudanese president Omar Al-Bashir with war crimes, crimes against humanity and genocide. In 2010 the management oversight and legislative body of the Court, the Assembly of States Parties (ASP) convened the first Review Conference of the Court, reviewing the work and progress of the Court so far, as well as the implementation of its Statute, decisions and recommendations in the domestic jurisdictions of the signatory states.


The President of the ASP, Christian Wenaweser from Liechtenstein, stated recently that the world could expect the first ICC-judgment in March 2011, thereby referring to the case of the Prosecutor vs. Mr. Lubanga. A conclusion of this case would be a relief for the court, as the trial has mainly been marked by the tumultuous relationship between the prosecutors and judges and commenced only in 2009 after a two-year delay due to evidence disputes. Subsequently the first witness summoned by the prosecutors retracted his testimony and in July 2010 the judges ordered to stay the proceedings and thereafter the release of Mr. Lubanga two decisions against which the prosecutors successfully appealed. On 9 October 2010 the Appeals Chamber of the Court ruled the trial should be continued. Given the struggling progress of the trial, Mr. Wenaweser's statement that a judgment in the case can be expected around March 2011 evokes some question marks. This doubt is boosted by that fact that the Lubanga Defense has mentioned that evidence disclosure problems may delay the trial again in the upcoming future.

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The complications the Court faced so far in the case against Mr. Lubanga indicate that the relatively young institution still faces numeral challenges in its development process. The first years of the Court's work largely revolved around the interpretation of its constitutional and material legal texts. Building partly on the work of other courts, such as the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda, the ICC has managed to take international criminal law to a broader and more developed stage. So far, the Court has indicted fourteen suspects of which seven remain fugitive; two are believed to have died; four are in custody and one appeared before the Court on a voluntary basis. The ICC booked considerable success in the first decade of its existence, but much work remains to be done.

Firstly, the number of prosecutions started and effectively completed by the Court will be essential in the assessment of the Court's capabilities, as well as the image the world outside acquires of it. The prosecutorial strategy the Office of the Prosecutor presented in 2009 mentioned that over the next three years at least one new trial should commence. As Me'ndez stated it is doubtful whether such a low-profile approach will have the desired effect the ICC needs on the international community. The recognition for the Court will not only depend upon the effective completion of the cases it starts, but also the number of proceedings running. Quality counts, but so does quantity. Especially states considering joining the Court might eventually be reluctant to do so if the entire budget of the Court is spend on a handful of cases.

Secondly, the different backgrounds of the Court's lawyers and judges address the challenges it faces in merging different legal systems from different cultures in its own proceedings, while also the participation of victims in the proceedings of the Court - the ICC is the first international court offering this possibility - remains its difficulties in implementation, something of which the retraction of the testimony by the first witness presented by the prosecutors in the Lubanga-case an example.

The opposition of the US, Russia and China against the Court remains what is perhaps the weakest spot of the Court's overall practical and constitutional structure. All three countries are permanent members of the UN Security Council and have the ability to strengthen the Court tremendously through both their political and financial power. The United States signed the Rome Statute during President Bill Clinton's last days in office but his successor George Bush refused to ratify the treaty and nullified the American signature. In 2002, the American Congress even adopted the American Service-member Protection Act, providing the president with the possibility "to use all means necessary and appropriate to bring about the release of any person who is being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court."

Nevertheless, with the current administration in the US a slight change in approach towards the ICC is noticeable. The Obama-administration is reconsidering the aforementioned act and during the last annually Assembly of States Parties of the Court, in November 2009, the government sent its first-ever delegation since the establishment of the Court in 1998 - participating in the Assembly as an observer. But where the American opposition against the ICC can be explained by the generally scrutinizing view of the US government towards international treaties, the opposition of Russia and China is perhaps more profound as it is likely to result from the fear the prosecutor might open investigations in what they consider to be national interest, such as the situations in Chechnya and Nepal.


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Mr. Moreno-Ocampo stated that the ICC could be considered a success once it is not necessary anymore to start prosecutions, thereby referring to the primary duty for states parties to initiate prosecutions against those individuals that are alleged to have committed crimes that fall within the jurisdiction of the ICC. The Court must therefore not be considered an institution that can perish human rights violations from the face of the earth, for this remains primarily the duty of states themselves. By acting in complementarity with the standards of the Rome Statute, the case law and recommendations of the Court states can work together towards a more unified system of international criminal law, thereby slowly but decisively tightening the leash around the perpetrators of the crimes enshrined in the Statute. What the Court can do however, is prosecuting and punishing those that bear the greatest responsibility for the most heinous crimes against humanity, in case national jurisdictions are unwilling or unable to do so. In this process, the Court and the states parties have to bear in mind that solely arrest warrants will not saturate those demanding justice and a lack of results will affect the prestige of the Court in the international community.

Eventually, expected judgment in the Lubanga-case offers an opportunity which is as urgent as it is important in taking another step towards the realization of that what Mr. Moreno-Ocampo would consider to be a successful ICC: a world without impunity for the perpetrators of most heinous crimes. But while developing the ICC further we should not forget that the ICC is not the panacea for gross human rights violations, but rather the antidote.

Situation Countries

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Ivar Scheers is a graduate in international public law from the Netherlands

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