ICC Under the Spotlight
IWPR’s international justice reporter Simon Jennings looks at the International Criminal Court’s achievements since it was founded eight years ago and considers what challenges lie ahead. By Simon Jennings - International Justice - ICC 7 Dec 10
As the trial of former Congolese vice-president Jean-Pierre Bemba Gombo opens at the International Criminal Court - hailed as the ICC’s biggest success to date - IWPR’s international justice reporter Simon Jennings looks at the court’s achievements since it was founded eight years ago and considers what challenges lie ahead.
The ICC has had to face several controversies in recent years. Where do you think its weaknesses lie and what is being done to overcome these?
Gaining the full cooperation of the countries it seeks to serve, as well as the wider international community, is the major challenge facing the ICC. Without its own police force, the ICC relies entirely on individual governments to arrest suspects, something which several have been either unwilling or unable to do. The court’s authority is heavily undermined by indictees evading capture. Senior members of Uganda’s rebel force, the Lord’s Resistance Army, LRA, continue to hide out in the bush of east and central Africa since arrest warrants were issued five years ago. Meanwhile Sudan’s president, Omar al Bashir, wanted by the court for allegedly committing genocide in Darfur, looks set to remain as president and defy the court until there is sufficient will either inside or outside Sudan to arrest him.
Another challenge for the ICC has been to get its message to those on the ground seeking to benefit from the justice dispensed at Hague court, as well as managing the expectations of those imploring it to be more proactive. While in its early days it was criticised for neglecting this part of its work, the court has recently made some strides in reaching out to affected communities. It has established regional offices for most of the countries where indictees come from, as well as in Chad to serve refugees from Darfur. A great deal of effort has been made to inform victims - some in extremely remote areas or living in camps - about the mandate and procedures of the ICC.
The issue of international cooperation with the court remains particularly sensitive, for instance, in the case of Bashir. How has this highlighted divisions over the court?
The charging of Bashir with war crimes and crimes against humanity in March 2009, and subsequently with genocide, has underlined this central weakness of the ICC. Bashir is the most high profile indictee and the only one charged with genocide yet there is little prospect of him ending up in The Hague anytime soon.
In 2009, the AU passed a resolution that its member states would not cooperate in the arrest of Bashir. In 2010, Bashir capitalised on this by making public visits to Chad and Kenya - both of whom are signatories to the court’s founding treaty, the Rome Statute, and, according to that document, legally obliged to arrest him. The ICC faces a real problem here because many of the AU’s members have endorsed the Rome Statute, but are reluctant to cooperate with the court over Bashir.
Indeed, Bashir continues to defy the court by travelling or threatening to travel to those members of the AU he feels will not arrest him.
The issue also points to a wider question: that of genuine backing for the ICC. Many African states are keen to support the institution and the accountability it represents on paper but when it comes to concrete action and the prospect of antagonising one of their neighbours, such as Sudan, they are not inclined to act. The situation also raises the question of what would happen if certain countries were to arrest a powerful political figure such as Bashir. Who would support them and help them deal with any likely political or even military consequences?
Despite these problems, what can the ICC count among its successes?
The ICC has investigated some of the worst atrocities of recent years and has done so in difficult circumstances of continuing conflict and displacement of people. The court has also attempted to create a new level of international consciousness about justice and accountability.
The ICC has been the first international court to fully recognise the importance of victims of atrocities in the justice process and incorporate them into legal proceedings. Through their lawyer, a victim can participate in a trial at the ICC on equal footing with the prosecution and defence. The court has also recognised their suffering by the establishment of the Trust Fund for Victims which can provide much needed financial support to victims of crimes prosecuted by the court. The process also imposes a burden on defendants, who could be ordered to pay money to the victims of any crimes they are convicted of.
Where do its greatest challenges lie in the future?
Cooperation is going to continue to be a thorn in the court’s side. Getting the full backing of some of the big powers - the US, Russia, China and India - remains a major challenge for the court. It also needs to persuade a significant body of international opinion to prioritise justice as part of the process of conflict resolution, rather than see it as performing a secondary function.
While the chief prosecutor has made efforts to bring countries on board, other priorities within the international community, including at the United Nations, have often taken precedence. For instance, recent international efforts to help ensure a smooth outcome of two referenda in South Sudan has seen attention switch away from Darfur and the atrocities still taking place there.
Another challenge is realising the court’s deterrent function. Many who supported the creation of the ICC did so in the belief that it would play a part in deterring the commission of war crimes, crimes against humanity and genocide. However, the extent to which this has been the case is questionable.
A handful of rebel leaders have been charged in the eastern Democratic Republic of Congo - and some are currently being tried in The Hague – but rape is still rampant there. Meanwhile, fierce fighting continues in Darfur despite the indictment of the president.
At the same time, the LRA continue their violent rampage in the Central Africa Republic and South Sudan while violence looms in Ivory Coast, even though the ICC has been watching the situation there closely there for years. With a swathe of arrest warrants unexecuted, it’s hard to convince those who commit atrocities that the court is not just a dog that barks - but also one that can bite.