On Friday of last week a conference entitled “Building Restorative International Justice: the ICC of the Future” took place in the Royal Commonwealth Society in London to discuss the most pertinent issues regarding the present performance and future direction of the International Court. Taking place in the immediate aftermath of the Lubanga conviction, the conference arrived at a highly propitious time for assessing the Court’s record and prospects. Bringing together some of the great and the good in the academy and practice (and of course those with a foot in both fields), the papers presented represented some of the staunchest advocates of the Rome Statute apparatus and some very vociferous critics (the programme is here). As the Conference was organised by IC Publications who print the New African, there was a very strong African focus, reflecting the fact that all active cases are based there.
Between the starry-eyed idealists of the ICC who presume the simple initiation of cases can change the practice of warlords and dictators and the nay-sayers who argue the Court is incorrigibly imperialist (notwithstanding the fact it is freely entered into), there were a number of excellent papers on the main controversies that have surrounded the Court. The following are a selection of a few of the most interesting issues that were raised, but this is by no means exhaustive.
- Security Council referrals are highly problematic
Many at the conference argued that Security Council referrals are legally and politically quite problematic. Because the Security Council can by executive fiat create jurisdiction it would not otherwise possess, international power politics are brought into the Court’s exercise. This is perhaps most apparent in the Gadhafi indictment application at a contentious time in the Libyan conflict or the Bashir indictment in the Sudanese peace processes, which can be contrasted with paralysis over Assad in Syria. In particular, the possibility that states not party to the Rome Statute can be brought before the Court or can be compelled by Security Council Resolutions to co-operate with the Court to the same or a lesser degree than States Parties may breach the principle of pacta sunt servanda, though there was much debate as to whether this was a ius cogens norm. Others by contrast argued that the Security Council link integrated the Court into the international legal system even where it creates a special jurisdiction by referral. Politically, most seemed to accept the Bashir indictment was unhelpful in a context where there was no realistic prospect of bringing him to trial.
- Practice on admissibility is highly inconsistent
A number of speakers criticised the unwillingness of the court to defer to the jurisdiction of the generally democratic Kenya on the 2007 election cases and contrasted it with the growing willingness to leave the Saif Gadhafi prosecution to a seemingly authoritarian, rights breaching Libya. The difference in treatment is of course easily explained – Kenya largely does not want to prosecute those subject to ICC proceedings even though it could guarantee a high level of trial, while Libya are highly enthusiastic about trying Saif even though they appear unable to guarantee fair trial. The suggestion of some speakers that the UK and UK would be uncomfortable with Gadhafi testifying in open court in Europe about his links with both governments (and particularly the UK) is one that garnered much assent.
- Complementarity is not very complementary
In the DRC and Uganda, the Office of the Prosecutor actively solicited cases and were so pro-active that Moreno-Ocampo’s much vaunted claim that he would view it as a success if the Court never tried any cases seemed like cant. The courts of Ituri in the DRC were more than capable of delivering justice for Lubanga et al after significant EU finding and local work. A finding that local courts are unwilling or unable had a demonstrably demoralising effect on the local judiciary. Sarah Nouwen in a terrific paper noted three paradoxes in complementarity –
1) Complementarity is viewed as the cornerstone of the Statute but on closer textual interpretation is merely decoration
2) While the primary responsibility to investigate or prosecute lies with the state, there is no actual obligation on states to do so, with the consequence that Court has moved from being in theory a court of last resort to being one of first convenience in practice.
3) Competition, not co-operation, has been the watchword thus far
- Africa feels victimised….
At least a half of those present at the Chamber (and somewhere between a third and a half of those presenting papers or chairing) were from Africa. The overwhelming reaction to the Court was hostile, even allowing for the the high numbers who appeared to have been dragooned from the national embassies in London of states subject to investigations. A constant refrain was the tendency to focus on Africa to the exclusion of crimes by the major powers in Iraq and Afghanistan, the Columbian civil war or the Palestine-Israel conflict. The usual criticism of international justice precluding more traditional restorative processes (or impunity fudges, as they might also be called) was rehearsed a number of times – as the chair of a session on Africa put it, Mandela could get a Nobel prize for forgiving a white man but other African leaders and condemned for failing to punish black ones. As Prof Stephen Chan put it, if by our concentration on Africa the Court creates distrust, then it undermines the whole cause of justice, which will seem malign and misdirected.
- …. But the critique of the ICC as neo-colonial is grossly oversimplified
As a few speakers pointed out with reference to Sudan and Uganda, the ICC is actually very weak with or without Security Council backing. The argument that it is an agent of colonialism requires a wilful blindness to the fact it is voluntarily entered into outside of Article 13 referral. If one looks at Uganda and the DRC where the Governments have been given free passes while forces antagonistic to the leaderships are subject to proceedings, it appears the Court is being manipulated by African countries and not the other way around. As such, it may entrench state impunity. The “Why Charles Taylor and not George Bush?” argument plays to sentiment and emotion, as Karim Khan put it, but ignores the fact that there are trials for Cambodia, Lebanon and the Balkans, as well as an intrusive subsidiarity regime in the more established regional human rights systems.
- Everyone is glad Moreno-Ocampo is no longer prosecutor
One of the few arguments that gained almost universal assent was the fact that observers, practitioners, defendants and victims could never feel assured about the propriety of practice in the Pre-Trial Chamber or an Office of the Prosecutor largely characterised by bravado. In particular, the departure of Moreno-Ocampo, dubbed as “the cowboy prosecutor” was greeted with enthusiasm by advocates and detractors of the ICC in light of his inconsistency of practice as regards admissibility, his constant quest for the limelight, abuse of power and allegations of sexual misconduct. The election of an African woman, Fatou Bensouda, as new Prosecutor, was welcomed. However, comparisons were drawn with Barack Obama in that a symbolic appointment of a highly competent candidate may mean little given the scale of powerful opposition and institutional sclerosis she must face. Some opined that a nine-year term as prosecutor was too long.