Passing judgement on ten years of the ICC

The criminal court is a great achievement in international justice, but it must do better in its next decade.

bashir Sudan
An ICC warrant was issued for the arrest of Omar Bashir, but the African Union is not cooperating [Reuters]

London, United Kingdom – The creation of the International Criminal Court (ICC) on July 1, 2002, was without doubt the greatest achievement for justice in the past 50 years.

Today, governments, human rights organisations and ordinary people around the world are celebrating its tenth anniversary – but we must not lose sight of the threats and challenges it still faces. Thanks to the ICC, victims of genocide, crimes against humanity and war crimes who have been traditionally ignored and left to suffer now have some hope of international justice and reparation when their governments fail to act.

Much has been achieved in the ICC’s first decade. The court not only survived a determined onslaught by the Bush administration, but managed to become an accepted part of the international system, as demonstrated by the UN Security Council’s unanimous referral of Libya to the ICC prosecutor last year.

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The ICC is now fully operational, with investigations in seven locations – Central African Republic, Ivory Coast, Democratic Republic of Congo, Kenya, Libya, the Darfur region of Sudan, and UgandaA number of cases are in progress, including that against the former president of Ivory Coast, Laurent Gbagbo.

The court also issued its first verdict earlier this year, resulting in the conviction of Thomas Lubanga Dyilo for enlisting and conscripting child soldiers in the Ituri region of the Democratic Republic of Congo.

These are significant achievements. But the ICC is also facing serious threats and challenges that must be addressed if it is going to achieve a real impact in bringing justice to victims and deterring crimes. The court came into existence at a time when crimes were still being committed at an alarming rate around the world.

Although the ICC is active already in the seven African locations, there are legitimate expectations it will step into other situations where there are serious doubts about the authorities’ ability and willingness to act, including Afghanistan, Colombia, Georgia, and the occupied Palestinian territories.

The UN Security Council could also refer further crimes to the court, particularly with growing pressure for action on Syria. 

To be able to respond to such situations, as well as to conduct its current work, the ICC requires strong budgetary and political support as well as cooperation from states – sadly lacking at this time.

The ICC’s largest financial contributors – France, Germany, Italy, Japan, and the United Kingdom – are determined to freeze the court’s current budget. The resources requested in 2011 were cut significantly at their insistence. If they succeed in imposing the freeze, the ICC will struggle to meet its current workload, let alone to respond to more situations when needed. 

The ICC is also facing a political backlash because of its current focus on Africa. In particular, the African Union has decided not to cooperate with the arrest of Sudanese President Omar Bashir, who has been charged with genocide, crimes against humanity and war crimes in Darfur.

Bashir continues to be allowed to visit many countries without being arrested. However, some African Union members including Botswana, Malawi, South Africa, and Zambia are courageously resisting pressure and have indicated they would arrest Bashir if he arrives in their territories.

The problem is not limited to the Sudanese president. Of the 17 people who are the subject of ICC arrest warrants, only six have been arrested and surrendered to the court. More must be done by governments around the world to ensure that obligations are met and suspects surrendered to face justice.

When victims are lucky enough to have their crimes prosecuted by the ICC, they encounter an often bewildering bureaucratic system. 

The UN Security Council, which has the ability to refer situations anywhere in the world to the ICC prosecutor, even when the governments have not signed up to the ICC, has been selective in exercising this power, taking the step only in regards to Darfur and Libya so far. It continues to refuse to refer Syria, even though crimes against humanity continue to be committed there.

Not all challenges are external. Some aspects of the court’s work in its first decade have been disappointing.

The prosecution strategy has been so restrictive that only a small number of crimes are being investigated or prosecuted.

Charges against suspects accused of “bearing the greatest responsibility” only reflect a fraction of the overall pattern of crimes – so international justice is limited to a very small percentage of victims.

Of course, the court could never deal with every single crime in a situation where crimes have been committed on a large scale, as in the DRC. But the current balance applied by the Office of the Prosecutor is too exclusive. When victims are lucky enough to have their crimes prosecuted by the ICC, they encounter an often bewildering bureaucratic system.

Hundreds of victims seeking to participate in the court’s proceedings have so far been excluded because their applications were not processed in time.

Legal representatives for victims have been appointed without adequate consultation – and then denied the resources they need to perform their role, including travel to meet and take clients’ instruction.

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Victims seeking reparation in the Lubanga case have no idea what to expect from the process or the awards, because the 18 judges failed to agree principles on reparation in advance of the first case, and are now seeking to do so on a case-by-case basis decided by different panels. There is a real danger this situation will cause inconsistency and further disappointment.

One shining light is the ICC’s Trust Fund for Victims, which provides assistance to victims in situations under investigation by the ICC and can use its resources to implement reparation orders, including stepping in when those convicted lack the means.

The Trust Fund has helped more than 80,000 people so far in the Democratic Republic of Congo and Uganda, with projects about to commence in the Central African Republic.

It is dependent on voluntary contributions to complete its work. As Amnesty International’s members mark the tenth anniversary, they are calling on their governments to make annual contributions to the fund.

The tenth anniversary is an important occasion to celebrate this massive achievement in international justice. However, the fight against impunity and the campaign for international justice is far from over. The ICC must do more for victims in its next decade, and governments must give the court and its Trust Fund better cooperation and the resources to tackle impunity wherever it exists.

Our verdict? Some progress; must do better.

Salil Shetty is the Secretary General of Amnesty International.

Follow him on Twitter: @SalilShetty