Thursday, March 12, 2015

Challenge, not crisis, at the ICC

In both his more recent post, “The ICC’s Crisis Mentality and the Limits of Global Justice” and in a late-February publication entitled, “Yes, the ICC is in Crisis. It Always Has Been,” Mark Kersten of Justice in Conflict asserts that the ICC is not only an institution in crisis, but that it is one that needs to be in crisis. By definition, “crisis” typically refers to an acutely dangerous or life-threatening situation that often constitutes a decisive moment. To say that the ICC is in constant crisis is a serious misuse of the term. 

The Court does face – and is currently addressing – issues impeding its development. Contrary to Kersten’s claim that the Court has failed to acknowledge its limits, ICC Prosecutor Fatou Bensouda has expressly identified challenges in front of the Court. Bensouda has drawn particular attention to the issue of inadequate resources. Lack of sufficient resources and an inadequate budget hinder the Court’s ability to maintain and ensure high quality trial conduct. Without the necessary resources, the Court’s outreach efforts are also compromised. The Office of the Prosecutor (OTP) is currently making efforts to meet this challenge. Specifically, the OTP’s Strategic Plan for June 2012 – 2015 proposes three budget increases over a period of four years. With resources appropriate to match the ever-increasing number of preliminary examinations, investigations and prosecutions, the Court will be better equipped to execute its mandate.

The issue of resources is connected to the problem of enforcement. Without a police force or military of its own, the Court relies heavily on the cooperation of States. The Court can only reach its full potential when it has the unprejudiced assistance of States, and from the United Nations Security Council (UNSC) when it refers cases to the ICC. When collaboration is lacking, the Prosecutor does not hesitate to say so. As recently as this week, Bensouda has drawn attention to the non-cooperation of the UNSC and member states regarding the Security Council’s referral of the situation in Darfur.

In his more recent blog post, Kersten also asserts that the ICC “tends to pragmatically align itself with the interests of the UN Security Council and States Parties by only focusing on one side of the conflict.” The situations from which this accusation may arise do present particular challenges for the Prosecutor. For example, a delicate situation can arise when available evidence dictates that charges must be brought against a member of government that has brought a case to the ICC. In the same vein, if appropriate evidence is present for one side in a case but not another, the Prosecutor faces a unique quandary. Should the Prosecutor proceed with the available evidence? Should the Prosecutor risk jeopardizing an involved person’s right to a trial without undue delay by deferring the case until such evidence exists on the opposing side? Although one cannot deny the legitimacy of these challenges, their existence does not indicate bias by the Prosecutor toward one particular side of a conflict.

Just as bias does not exist toward one side or another in a particular case, bias does not exist in the process by which situations are chosen by the Court. Kersten declares that “the ICC has been unable or unwilling to open official investigations into states outside of the African continent.” To date, it is true that five African states have requested that the ICC start investigations into their territories. However, equally relevant is the OTP’s current conduct of preliminary investigations into seven situations outside of the continent.  

Ultimately, although Kersten is right in his identification of some difficult ICC issues, he is mistaken in claiming that such challenges constitute a crisis for the Court. Instead, they are an inherent and continuing part of the Court’s work for which it must find permanent ways to confront.

Written by Michaela Connolly

Wednesday, March 04, 2015

Yesterday's complete policy on reparations gives important guidance to future Trial Chambers

Yesterday, 3 March 2015, the Appeals Chamber pronounced its judgment in the case of Thomas Lubanga Dyilo (DRC) regarding reparations to victims. Mr. Lubanga’s case was groundbreaking as the Court’s first. Mr. Lubanga was found guilty on 14 March 2012, which generated the need to deal for the first time with questions about reparations. The Trial Chamber concluded that it should make its decision a complete policy on reparations, which the Trial Chambers and Trust Fund for Victims could apply when making judgments about handling reparations in the future.

The policy was appealed by both sides. The Appeals Chamber modified and amended the "decision establishing the principles and procedures to be applied to reparations" and thus established the final principles for reparation. Since it is the Appeals Chamber’s first judgment elaborating on who where and why to award reparations, the judgment is epoch-making for the ICC. It is a most important step because the Statute calls for a reparation scheme, but does not lay out its details. The provision of reparations in the Statute is a unique feature that recognizes the need to provide effective remedies for victims in court proceedings, which has not been recognized before. 

The Appeals Chamber confirmed in its policy that the judgment may provide both individual and collective reparations, but that reparations in the case of Mr. Lubanga will be awarded only collectively. Thus, the Appeals Chamber instructed the TFV to compose a plan of how to implement collective reparations, which would describe how to implement the principles the Appeals Chamber established. The principles are general concepts, which the Trial Chamber can apply to a future case in light of its specific circumstances. For example, according to the principles not only persons, families and groups of people but also legal entities will be entitled to reparations. 

One of the Appeal Chamber’s key amendments of the principles links the responsibility of reparations intrinsically with the convicted. Therefore, Mr. Lubanga has, contrary to the Trial Chamber’s judgment, now become liable for the reparation to the victims. This makes a difference for later cases both emotionally for the victims and instrumentally regarding who pays what. If the TFV for instance advances its resources in order to enable the implementation of the order, it will be able to claim reimbursement of there from Mr. Lubanga at a later date.

This reparations policy, refined by the Appeals Chamber, is likely to be controversial but it does provide the TFV with much needed guidance in the proceedings with reparations. The Appeals Chamber instructed the implementation to be finished in six months in which all victims are to be treated fairly and equally, regardless of whether they participated in the trial proceedings.

Written by Kathrine G. Lodberg