Debate over the Court’s performance in its first generation of cases has mounted again after the end of the first case by the final conviction of Congolese warlord Thomas Lubanga on June 24. With more convictions imminent, praise and criticism of that performance are likely to continue and become more pointed in the United States as well as elsewhere. Here are background and suggestions American ICC supporters may find useful in dealing with these as they come up in our advocacy.
The most important problems about the Court shown by these early cases have to do with enforcement of the Court’s warrants and orders, evenhandedness in investigating alleged atrocities by all sides in a conflict, slowness in conducting trials, the handling of evidence, and the complete absence of any cases from outside Africa. The ability of the ICC to deal with these questions varies with their origin: some come from the design of the Court in its Rome Statute, some from procedures and processes that the ICC created and can fix, and others are created by relations between the Court and nations which are either or both member states or the scene of crimes. Also, we need to keep in mind that this was the beginning - the Court encountered these issues for the first time. What you do for the first time, you often have trouble doing right.
Enforcement is a difficulty built into the nature of the Court. Like most international organizations, it has no police or paramilitary to make others act on its orders. It must depend on the cooperation of nations, especially member states with Rome Statute obligations. This period saw plenty of failures and several actions, by members and non-members alike, to honor ICC arrest warrants. The most evident and disheartening example of failure was the international ignoring of the warrant to arrest Sudanese president Omar al-Bashir on charges of committing atrocities in Darfur. By contrast, Belgium promptly arrested Jean-Pierre Bemba, wanted by the ICC for crimes by his militia in the Central African Republic.
Most opponents of the Court likely to criticize it for weakness recoil when reminded that enforcement power would give the Court one of the characteristics of a global government. The United States should help the Court with the dilemma of enforcement in cases that clearly serve U.S. national interests.
Evenhandedness becomes a severe problem when the ICC is addressing a conflict in which atrocities have been committed by, among others, a government whose help the Court needs for its investigation. This particularly happens when that government referred the situation to the ICC in the first place. The temptation for the Court not to go after officials is strong in these circumstances and it is likely that in the early years the ICC sometimes gave in to it. The current Prosecutor appears to be anxious to avoid this trap and ICC supporters need to regularly bolster this resolve. The answer must be to strengthen the Court politically and with its needed resources of all kinds so that it can investigate effectively even in the face of a hostile government. The Court’s success in gathering compelling evidence about atrocities in Darfur- even when kept out of Sudan- shows that this can be possible.
The Court had to figure out as it went along how to conduct trials under its special circumstances (e.g., the role of victims). This resulted in a lot of stop and start and made the trials very slow. It took seven years to finish prosecuting and trying Lubanga, with the consequence that he will be eligible for review of his sentence soon after he starts completing it. Speeding up trials while protecting the rights of defendants will be hard, but entirely doable, and it is squarely within the power and ability of the Court. Fortunately, the judges and Prosecutor have preserved the lessons of this experience and have formally organized to learn from them. Opponents raising this problem with the claim that the ICC is fatally flawed should be told that it will be met with an impressive process of self-improvement.
One of the issues the judges had to resolve on the run was rules and procedures for the collection, use and disclosure of evidence to the defense obtained by the Prosecutor. In some of the early cases, the judges decided that the standard of evidence in pre-trial hearings had to be raised. They also concluded that the then Prosecutor was using for his own purposes evidence subject to confidentiality agreements and claiming them as an excuse not to disclose it to the defense. After going right up to the edge of dismissing a case, they succeeded in imposing these decisions on the Prosecutor. The current Prosecutor has accepted and applied them. We should raise this important episode of self-improvement regularly in our advocacy.
Although there are good explanations for it, the complete absence of active cases from outside Africa requires the most urgent fix at the Court. All of the cases reached the Court in proper ways, mostly by referrals, and all are about crimes that are more than fully eligible for the ICC. Moreover, the victims of the crimes, all Africans, overwhelmingly support the Court’s prosecutions of these atrocities. Charges from the African Union and others that the Court is somehow “targeting” Africa out of “neo-colonialist” motives are therefore easy to rebut. However, the ICC and its supporters must recognize another and very natural African feeling that a Court caseload exclusively from Africa creates and supports an impression that serious atrocities happen only there. More generally also, that caseload unfortunately strengthens a fairly widespread suspicion that the ICC takes only cases that do not involve the interests of major powers. The Prosecutor has a list of some 10 situations under “preliminary examination” most of which are outside Africa, such as Ukraine. In our advocacy we can reply that the Prosecutor has said that she intends to begin full investigations into some of these non-African situations and that supporters are encouraging her to do that soon.
The full engagement now of the Court with its first round of cases is a challenge and an opportunity for our advocacy for the ICC in the United States. It has produced further misperceptions of the Court, but also greater attention and interest about it that we can use to explain it and make it better understood.
Written by John Washburn AMICC Convener