Five years of the ICC: perspectives on the future

5 December 2007

Miguel De Serpa Soares, Legal Counsellor from the Portuguese Permanent Representation to the European Union, said the International Criminal Court had been a priority for the Portuguese Presidency of the EU. The EU had been the first organisation to sign a general cooperation agreement with the Court in 2006, and the Council’s ICC Working Party regularly takes initiatives to promote the court’s work round the world.

Most EU governments agree that ending impunity for “heinous crimes” is a priority, and is in line with the EU’s own founding principles.

Fatou Bensouda, Deputy Prosecutor, International Criminal Court, The Hague, said that since the Rome Statute establishing the ICC entered into force five years ago, the Court has worked to end impunity and prevent further crimes against humanity. It came into existence in 2002 after its statute was ratified by 60 countries, and this number has now risen to 105.

Every state has a duty to maintain jurisdiction over those responsible for international crimes, to punish crimes within its borders and to enforce international justice, said Ms Bensouda. The ratification process has also encouraged governments to harmonise their own court processes in line with the ICC.

The ICC’s preliminary work has included deciding how to put its body of law into operation, select which crimes to investigate, how to work during conflicts, and protect witnesses and maintain confidentiality in order to support victims on the ground.

It has begun investigating the most serious cases, involving Thomas Lubanga, the former leader of the Union of Congolese Patriots in DRCongo; Ahmed Haroun, the Former Interior Minister, and Ali Kushayb, a Janjaweed leader, in Sudan; Joseph Kony, leader of the Lord’s Resistance Army (LRA) in Uganda, and the perpetrators of “massive crimes” in the Central Africa Republic.

Civil society, in particular the Coalition for the International Criminal Court (CICC), has played a strong role in supporting the Court and monitoring countries’ commitment to its work, “speaking up where others have been silent”, she said.

Nine arrest warrants have been issued and the first trial - of Thomas Lubanga - will be a “defining moment” for the court, said Ms Bensouda, as it will demonstrate the Court at work, translating concepts into reality.

She added that government priorities have, at times, differed from those of the Court, and they have refused to enforce arrest warrants, suggesting that perpetrators be exiled or amnestied instead, and have accused the ICC of being a “stumbling block” to peace negotiations. If states refuse to support the Court, this actively undermines its work, showing people that they can continue to act with impunity.

The ICC has learnt that it cannot adopt a single approach in dealing with cases, as it has to adjust to political situations. Experience has also shown that it is vital to cut suspects off from their national or political support networks, and that countries need planning support in serving the Court’s arrest warrants.

In the light of the international community’s failure to prevent national atrocities, the ICC is one of the few ways left to protect the victims. They cannot wait, said Ms Bensouda; their future begins today.

Juan E. Méndez, President of the International Centre for Transitional Justice in New York and former United Nations Special Adviser on the Prevention of Genocide, said the ICC had progressed more quickly than expected. He was angered by criticisms that it was “inconvenient”, or stood in the way of peace efforts in Darfur or Uganda.

On the contrary, it was precisely the indictments of the LRA leadership that had sparked off negotiations in Uganda. In Sudan, the international community had stood aside while the government refused to indict perpetrators of mass killings, and only the ICC had persevered.

Accountability is essential to prevent murder and torture, said Mr Méndez, as it breaks the cycle of impunity, which is the only way to reassure people that it is safe to return to their homes.

When the ICC’s founding Rome Statute was adopted in 1998, this was a sign that the international community agreed that it was no longer acceptable to allow impunity for crimes against humanity, and definitive measures were needed to achieve lasting peace. This followed numerous occasions when governments had issued amnesties for perpetrators in war-torn countries, which simply enabled the atrocities to recommence.

Mr Méndez was concerned that despite its excellent intentions, the ICC’s future could be at risk if, during the next five years, it only convicts a handful of people. He regretted that some governments were not committed to making it work, and that they could not be pressured to cooperate.

The EU and other democratic states played an important role in creating the ICC, and the Union had also resisted attempts by “powerful states” to undermine the Court’s work.

Paul Hardy, Human Rights and Democratisation Unit, European Commission, said that as well as helping to fund the ICC, the Commission offered practical support, in the form, for example, of training programmes at the Court.

A major element of the EU’s work is to encourage countries, including its own Member States, to ratify the Rome Statute. It has welcomed the news that Vietnam is considering ratification, as a significant move for South-east Asia and what would be the second ratification - after Cambodia - by an ASEAN state member. Indonesia has agreed to ratify the ICC in 2008, and the EU’s Action Plans which it signs with partner countries also recommend ratification.

The EU has worked to prevent the US from promoting Non-surrender Agreements, deliberately designed to undermine the jurisdiction of the Court, with a number of countries. The US successfully put pressure on new EU Member States, such as Romania, and candidate countries, such as Montenegro, to sign.

The Court is now entering a critical phase, said Mr Hardy, as six of its arrest warrants are outstanding. The Commission can encourage EU Member States to cooperate with the ICC, for example, by building witness protection programmes or strengthening their own judicial systems.

Józef Pinior, Polish MEP and Vice-Chair of the European Parliament Sub-Committee on Human Rights, said the Parliament closely scrutinises the ICC’s work in bringing the worst perpetrators to justice and believes its work should be “mainstreamed” in all EU external relations.

In 2006, the Commission negotiated clauses on the ICC in its European Neighbourhood agreements. It also seeks to include similar clauses in negotiations and operational agreements with countries such as China, Iran, Russia and those in Central Asia.

Mr Pinior said he was pleased to note that Japan has now ratified the ICC, as it is the first major Asian player to do so and a contributor to the ICC budget.

The EU has been promoting the work of the ICC and of other international legal tribunals. Mr Pinior said he believed the Union as a whole and its Member States were uniquely placed to serve as an example of how universal justice could work.