ICC Law and Analysis

Protesters want Burma's junta to face the ICC

Case-selection

One of the most biting critiques of the ICC is that it selectively chooses which cases it will pursue, targeting only cases that have little or no political ramifications and bypassing likely culpable suspects with ties to powerful governments.  For example, while the ICC Prosecutor Luis Moreno-Ocampo charged Lubanga for recruiting child soldiers in the gory DRC wars in which over 5 million people were killed, he also bypassed many key, and likely culpable, officials in the DRC.

“The ICC has taken the small fish,” Abbé Alfred Buju, of the Catholic Diocese of Bunia, DRC, told a reporter, “leaving the big fish because they’re in positions of power.”

He said he was referring to generals and cabinet ministers from Uganda and Rwanda who supported the militias, and notorious warlords, like Peter Karim, who was made a colonel in the Congolese army instead of being brought to trial for war crimes.

At an ICC educational session in Bunia, DRC, one of the teenagers in a group of former child soldiers asked why Lubanga was on trial when “others who did the same thing are working within the government?” This is a good question, and a matter of politics. The ICC selectively targets politically neutral defendants, leaving other likely criminals free. The court’s integrity is being undermined when justice is unevenly applied.

Dr. Phil Clark, a professor of transitional justice at the University of London, notes that the ICC has avoided pursuing criminal cases involving Ugandan and Congolese state officials. This is despite the grave and widespread abuses committed by these governments against their own people. He writes, “The Uganda and Congo situations raise questions about how closely the ICC should engage with national governments before, during and after conflict situations are referred. The danger is that African leaders may use the ICC to target their political opponents while protecting themselves from prosecution. Certainly the ICC’s pursuit of the Lord’s Resistance Army (LRA) in northern Uganda has greatly benefited President Yoweri Museveni, who has been locked in a 25-year civil war with the rebel force. Likewise, President Joseph Kabila has gained from the ICC’s prosecution of Jean-Pierre Bemba, his main opponent at the last Congolese presidential elections. The ICC’s reliance on state cooperation leaves it open to these sorts of domestic political machinations.”

All five cases currently before the Court involve conflicts only in Africa. Because the ICC’s Prosecutor has been reluctant to try cases in which the perpetrators are powerful international players, the Court has opened itself up to charges of colonialism–an outside, Western court imposing its system of justice only in Africa.

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Jurisdiction

Since the inception of the ICC, more than 100 nations have come to support the institution, with the crucial exceptions of the U.S., China and Russia. Each of those country objects to the possibility of ICC prosecution of its citizens, as well as what they see as infringements on their sovereignty. The Absence of the three huge powers creates gaping holes in the court’s jurisdiction and undercuts its legitimacy. The ICC has no power over its own jurisdiction, nor should it, but the result is some countries are accountable under international law, while other, more powerful countries simply are not.

While the US has disengaged from earlier practices that directly undermined the Court, it nevertheless remains an outsider. The Clinton administration signed the Rome Statute which gave rise to the ICC, but the next year the George W. Bush administration quickly withdrew from it, without any intent of ratification. Policy toward the ICC under President Bush was one of direct antagonism; many ICC member countries were pressured into bilateral agreements agreeing that no US citizen would fall under the jurisdiction of the court while the Americans are abroad.

Under the Obama administration, the US attended a review session of the ICC in Kampala, Uganda, as an observer nation.  While still not a member of the ICC, at least the US now engages with the court. America’s Ambassador-at-Large for War Crimes Issues, Stephen Rapp, announced that he would lead the U.S. delegation to the ICC’s annual meeting of the Assembly of States Parties in The Hague, in the Netherlands. He told journalists, “Our government has now made the decision that Americans will return to engagement at the ICC.”

Expenses and logistics

One of the larger, practical problems the ICC faces is that, while it can issue arrest warrants it has no police force to execute the warrants; it depends entirely on domestic governments to arrest suspects and protect the Court’s investigators.

As the organization Refugee Rights notes:

“This poses significant challenges because the ICC must often cooperate with state officials who themselves are suspected of committing atrocities. Ntaganda is a high profile figure in North Kivu’s main city, Goma, openly associating with senior members of the international community. On the ground in Ituri, frustration was expressed both with the government’s policy, and with the Court for not being more vocal in insisting on Ntaganda’s arrest.”

But the ICC can’t do anything without a great deal of assistance from the countries in which the atrocities take place. If a situation is referred to the Court, and the home-country is openly hostile to the court, as with  Sudan, it can block any movement by the ICC, blocking the fulfillment of arrest warrants and hampering the gathering of evidence. Here Prosecutor Ocampo discusses the Darfur situation and the problem of carrying out justice when those in power block the court’s access.

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Some of the logistical problems with the Court can’t be avoided, yet they undermine a uniform sense of justice all the same. For example, the disparity between the conditions of the Hague and the conditions of the countries in which it prosecutes can be jarring. This is especially true for the victims or those in African countries watching and following the trial. It can undermine larger efforts of the court–namely, that prosecuting international criminals will deter other criminals from committing international human rights violations. As one advocate noted,  “everyone can see Lubanga on TV, and we can see that he is getting fat,” said an activist in Ituri, DRC. Compared with the standards of detention in the DRC, The Hague is seen to a be quite comfortable place, lessening the perceived severity of the punishments.

Intermediaries and Judicial Missteps

Even within the cases it has prosecuted, the ICC trials have had serious judicial irregularities.  In the Lubanga case, for example, intermediaries influenced some witnesses to lie, which led to the dismissal of evidence. According to court documents, this was the result of “essentially unsupervised actions of three of the principal intermediaries,” who “cannot safely be relied on. The chamber spent a considerable period of time investigating the circumstances of a substantial number of individuals whose evidence was, at least in part, inaccurate or dishonest.”  On two separate occasions a British judge tried to call the trial to stop and ordered Lubanga released based on these procedural missteps.

Time spent

Even in the best of cases – in which the suspect is tried, and found guilty of suspected crimes, thus brought to justice–the ICC still takes an incredibly long time to close a case. Take the case of Lubanga, in which his trial did finally result in a guilty verdict. But it took an extraordinary amount of time and money to achieve such a conclusion. Arrested in 2006, it took six years for the court to amass evidence and try him, even though it pursued lesser charges against him to make the case easier to prosecute. He is only one of the many criminals involved in the messy DRC conflict.