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
No comments:
Post a Comment