ICC in difficulty ten years after the Rome Statute

Thursday 17 July marks the tenth anniversary of the Rome Statute, the treaty that led to the establishment of the International Criminal Court (ICC).

Set up in 2002, the ICC is mandated to investigate and prosecute crimes of genocide, crimes against humanity and war crimes, when national authorities are unable, or unwilling to do so.

Lauded as one of the most ambitious steps by the international community in recent history, the ICC has made significant progress in its investigations. But its work is being obstructed by serious internal and external difficulties.

The Court’s first investigations in the Central African Republic, the Democratic Republic of Congo, the Darfur region of Sudan and northern Uganda have focussed on some of the most serious human rights situations in the world. Afghanistan and Colombia are also being assessed.

Prosecuting cases is the problem. To date, the Court has issued 12 public arrest warrants, with another requested by the Prosecutor on 14 July 2008. Only four people have been arrested and surrendered for trial. The first case has been stayed. The accused may be released on fair trial grounds.

Without its own police force, the Court’s ability to prosecute cases depends upon the willingness of states to arrest and surrender those charged.

If a state fails or refuses to arrest and surrender persons to the Court, it was thought that other states and intergovernmental organizations would pressure them to do so. In practice, this is proving ineffective.

In response to the government of Sudan’s refusal to arrest and surrender former Minister of Humanitarian Affairs Ahmad Harun and Janjaweed leader Ali Kushayb to the Court, the United Nations Security Council issued a Presidential Statement in June 2008 calling for cooperation.

However, Sudan continues to refuse to implement the warrants. Four senior leaders of the Lords Resistance Army accused of crimes against humanity and war crimes in northern Uganda still remain at large.

An obstacle within the ICC emerged in June 2008, before the start of the Court’s first trial. The case against Thomas Lubanga Dyilo was stayed by the Trial Chamber to protect the right of the accused to a fair trial.

This was because the Prosecutor was unable to disclose to the defence exculpatory and mitigating evidence that had been provided confidentially by the United Nations and other organizations.

Confidentiality agreements are provided for in the Rome Statute, but only in exceptional circumstances and for the purpose of generating new evidence. A decision has been made to release the accused. Both decisions are the subject of appeals.

The possible collapse of the Court’s first case on fair trial grounds is deeply troubling. In particular, victims of the charges will be denied the opportunity to participate in the case.

However, the Trial Chamber’s decision to ensure the rights of the accused to have access to all information which could demonstrate their innocence demonstrates the Court’s determination to apply the highest standards of justice.

To date, 107 states, over half the international community, have ratified the statute. Many other states, including governments who originally opposed the statute, are in the process of ratifying.

Even the USA, which launched a worldwide campaign against the ICC, has since supported its work at the United Nations Security Council and indicated that it may cooperate with the ICC’s future investigations.

Amnesty International is a strong supporter of the Court. The organization lobbied extensively during the drafting of the Rome Statute for a just, fair and effective permanent court.

The long-term success of the Court as a central element of the new system of international justice will depend on its ability to prosecute cases. However, arrest and surrender of suspects is a matter largely outside the ICC’s control.

The supporters of the Court, therefore, have a vital role to ensure that cooperation is demanded bilaterally from states and through intergovernmental organizations. Efforts must also be taken to ensure that missions conducted by intergovernmental organizations are mandated to execute arrest warrants.