Road Ahead for ICC

Monday, 31 May, 2010

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Blake Evans-Pritchard

Africa Editor

Blake Evans-Pritchard
IWPR Africa editor

With more than 80 members of the International Criminal Court, ICC, having confirmed their attendance at this week's review conference in Kampala, consensus for any substantial change to the governing rules of the court is likely to remain elusive

Consensus is not actually needed to pass an amendment to the Rome Statute, the ICC's founding treaty. It is sufficient simply for two-thirds of all 111 members to agree. However, even two-thirds is a fairly high barrier to clear, especially when some of the issues are so divisive.

The real merit of the review conference, though, lies not in adopting amendments, but in recognition of the court's importance in ending impunity around the world.

When the ICC was first established, with the signing of the Rome Statute in 1998, there were many sceptics who doubted its durability.

This was particularly evident when it came to recruiting a senior-level lawyer who would serve as chief prosecutor.

After struggling to get people to apply for the post – with many fearing that the court would not last, especially as the United States seemed to be withdrawing its support – the ICC finally got its man: Luis Moreno-Ocampo, an Argentinian lawyer who gained prominence in his home country for prosecuting human rights abuses in the military.

The court is now holding a landmark conference to mark eight years of its existence (the court only came to life in 2002, once 60 countries had signed up to it), signaling that the international community's fight against impunity is here to stay.

It is true that accomplishments of the past eight years have been mixed, and it is perhaps too early to say exactly what the court has achieved.

Critics complain that the ICC has not yet brought anyone to justice, and has only managed to arrest a small number of those that it is after.

Indictee Joseph Kony – from the Lord's Resistence Army, LRA, a Ugandan rebel movement – is still on the run, as are his henchmen; some have died since their arrest warrants were issued.

The Democratic Republic of Congo, DRC, has given up some of those accused of war crimes – namely Germain Katanga and Matthieu Ngudjolo – but one of the most notorious indictees, Bosco Ntaganda, is still being shielded by the armed forces.

The prospect of justice for those who have committed war crimes in Darfur looks remote: Sudan does not recognise the jurisdiction of the ICC and indictees continue to serve in the government.

The ICC's latest case, in Kenya, looks like an easy one to deal with. Moreno-Ocampo certainly hopes the preliminary investigation can be wrapped up quickly. But Nairobi's willingness to cooperate may quickly evaporate if investigations start to get too close to the government.

But such criticism often unfairly glosses over those areas where the ICC is making a difference. Of course, such an impact may not be fully felt for years to come, but a good place to start searching is the location of the conference: Uganda, itself a situation country.

Although there have so far been no arrests of members of the LRA, the referral of the case to the ICC has probably helped to force them out of the country, although persistent instability in the Central African Republic may have allowed them to regroup there.

The court never promised a quick fix for the injustices in the world. The lasting impact of the ICC will take much longer to be felt. Much as the Nuremberg and Toyko war crimes tribunals, held after the Second World War, helped countries come to terms with what had happened and move forwards.

There are still ways that the ICC, an ambitious project from the very beginning, could be improved.

It is lamentable that the ICC was so slow to grasp the importance of dealing with gender-based crimes, to the extent that Congolese warlord Thomas Lubanga, the first person to come to trial at the ICC, does not have to answer allegations that his militia kept sex slaves.

It is a shame that, for many, justice is a long time in coming. And, in regions where life expectancy may be no more than 50, this is a real problem.

That so many people wanted by the ICC are still at large is a tragic failure of international cooperation. That some governments are actively shielding these men is a direct affront to the central principle that the ICC stands for: an end to impunity.

So, as the delegates come together over the next two weeks, they should take time to seriously reflect on the challenges ahead. But they should also take some satisfaction that, whilst things do not always run smoothly at the ICC, the real measure of its success is yet to be seen.

Conference details

The ICC conference will run from May 31 until June 11 2010.

The first week will consider what the impact and successes of the Rome Statute have been. Discussions will centre around four themes: victims and affected communities, complementarity, cooperation and peace and justice.

During the second week, member states will actually try to introduce certain amendments into the Rome Statute.

The most contentious of these is a definition for “crimes of aggression”.

Member states have tentatively agreed on a definition, which they hope will be adopted: a crime of aggression occurs when one member state attacks another one without the express approval of the United Nations.

However, where agreement breaks down is over whether it should be up to the UN Security Council to refer a case to the ICC. Many smaller member states argue that it shouldn't be, since the whole point of the ICC is to remain outside political influence. But countries such as the United Kingdom, which has a permanent seat on the Security Council, want the body involved.

Without agreement on this issue, crimes of aggression may remain beyond the reach of the ICC for the foreseeable future.

Another potential minefield is whether Article 124 of the Rome Statute should be scrapped. This article allows member states to remain outside of the jurisdiction of the ICC for up to seven years after joining. Both France and Columbia made use of this provision. Some have argued that Article 124 should be kept as an incentive for new countries to sign up.

One area where member states might be able to find agreement, without too much difficulty, is enlarging the range of weapons that, if used, constitutes a war crime. If the amendment goes through, criminalisation will extend to the use of poison, asphyxiating gases and bullets that expand or flatten in the body.

Over the coming days, a team of IWPR reporters will be closely following the ICC review conference, and will produce a series of reports about what the ICC means to those communities most in need of international justice.

Blake Evans-Pritchard is IWPR’s Africa Editor.

The views expressed in this article are not necessarily the views of IWPR.