10 years on: growing pains at the ICC

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Dignitaries, ambassadors, NGOs and even the Dutch monarch Queen Beatrix are gathering in the historic Knights Hall in The Hague today for the official ceremony marking a decade of justice at the International Criminal Court (ICC), the world’s first permanent war crimes tribunal.

But with only one verdict and sentence handed down so far —14 years to former Congolese militia leader Thomas Lubanga — some in the legal community say the court is far from achieving its stated aim of being a court for everyone.

“What has been done until now is a bit of a flop," says Judge Fausto Pocar of the International Criminal Tribunal for the Former Yugoslavia (ICTY), a court under the auspices of the United Nations, also located in The Hague. "Far from being universal, less than 50 percent of the world’s people are protected, [Sudanese President] al-Bashir is still free…and only one case is finished. After 10 years, that’s not very effective.”

Click on the graphic for important dates in the ICC's history. (Article continues below.)

Mixed results
In the decade since the court was ratified in July 2012, three trials have started, 22 arrest warrants and nine summonses to appear have been issued and eight preliminary investigations are underway — from Afghanistan and Georgia to Honduras and North Korea.

But the list of people indicted by the court and still at large includes Ugandan warlord Joseph Kony and other top commanders of his Lord’s Resistance Army, Sudanese President Omar al-Bashir and the son and former intelligence chief of late Libyan dictator Moammar Gaddafi: Saif Al-Islam and Abdullah Al-Senussi respectively.

Patience required
"It's a fledgling organisation," Professor Michael Scharf of Case Western Reserve University School of Law in Ohio said earlier this year. "The expectations for an organisation like that historically have to be reasonable because they really don't hit their stride until the second decade or even the third decade."

On the plus side of the ICC balance sheet, former president of the Ivory Coast Laurent Gbagbo became the first head of state to appear before judges when he was extradited to the court in last November. And it took more than a decade for the ICTY to land its so-called “biggest fish”: Bosnian Serb leader Radovan Karadzic and his military commander Ratko Mladic. Six of Kenya’s most powerful leaders have voluntarily appeared before the court to answer to charges of crimes against humanity (including murder, deportation and persecution) allegedly committed during the 2007-2008 post-election violence there.

But one of the ICC’s main problems, as Judge Pocar sees it, is its strategy of getting more countries to adopt the Rome Statute and be party to the court. Unless the UN Security Council refers a case to prosecutors, only those states who are members of the court fall under its jurisdiction. 

While 121 countries have already joined, the world’s major powers — including the United States, China and Russia — have yet to sign up. With those countries wielding Security Council veto power, that means situations like the current crisis in Syria are unlikely to be referred to the court, as Russia would almost certainly veto such a move.

“Just trying to increase the number of states that ratify [the statute] is a losing strategy,” says Judge Pocar, who estimates that at the going rate of just a few new ratifications a year, it would take until 2050 to have a truly universal court. “If the court applied customary law, it would make its rulings more universal because then even non-member states would have to abide.” 

As the court is treaty-based, its rulings now only apply to its members. 

Big shift
Judge Pocar also says that the ICC doesn’t need to reinvent the wheel. “In the case of Thomas Lubanga, the court could have cited decisions in the Special Court for Sierra Leone", which had already become the first international court to convict fighters for using and conscripting child soldiers. 

“We all ask why the ICC is reinventing the wheel when we did it,” says Peter Robinson, a criminal defence lawyer whose current star client is former leader of the Bosnian Serbs, Radovan Karadzic, now on trial at ICTY. “But that’s the small picture. In five years, people will forget that. The big shift is that everyone is talking about ‘The Hague’ in Africa and the Middle East. Leaders are scared of the court. People are being held accountable and the ICC is a deterrent.” 

Challenges ahead

While the dignitaries and royals pay tribute to the ICC in grand fashion, the court’s governing body, the Assembly of States Parties, is also meeting in The Hague to decide on a number of crucial issues for the court in its next decade, including its troubled 2013 budget, choosing a deputy prosecutor, procedures for shortening the much-criticised length of trials and electing the board for the Trust Fund for Victims (the first international tribunal to have one). 

“Improving the Assembly, the Court and its governance, as well as discussions on core issues such as victims’ participation and reparation, fair trial rights, cooperation and arrests (or lack thereof), communications and national prosecutions are of paramount importance,” said William R. Pace, convenor of the NGO Coalition for the ICC.