By: Richard A. Goldstone, Former Justice, Constitutional Court of South Africa, First Chief Prosecutor of the International Criminal Tribunal for Yugoslavia, and Regular Columnist, International Judicial Monitor In recent times the International Criminal Court (ICC) has attracted growing criticism. Amongst other complaints: that it is inefficient; too slow both with regard to preferring charges and in its trial procedures; having an anti-African bias; and being too costly. Some of those criticisms may well be justified but they are, at least, over-stated.
In this article I propose to consider some of the positive and negative developments at the ICC. Before doing so it should be acknowledged that the Court is comparatively new, has eight situations before it, and has 121 States Parties subject to its jurisdiction. Many of its procedures are new and novel. Never before have victims before an international criminal court had representation in pre-trial and trial procedures. For its judges, registry officials, prosecutors and investigators much of the work is innovative and challenging. Mistakes have been made and that is inevitable and part of a learning process.
Most of the situations before the ICC are not the result of its own initiative. Four have been accepted at the request of governments (Uganda, the Democratic Republic of the Congo, the Central African Republic and Mali), two have been referred by the United Nations Security Council (Sudan and Libya). Only two situations have been opened at the request of the Prosecutor (Kenya and Cote d’Ivoire). All of these situations are indeed in Africa but that is because serious crimes of war have been committed there and the most egregious of those committed in other continents are not subject to the jurisdiction of the Court (Sri Lanka and Syria to mention only two).
Some of the investigations have taken a long time. However, they have been complex and in some cases cooperation from the relevant governments has been absent or insufficient. Funding for the Court has been substantial. As other international courts (and domestic courts) have demonstrated, justice does not come without substantial financial cost. Thorough investigations and fair processes are complex and the resources necessary to conduct them are considerable.
In some of the situations there are a number of arrest warrants that have not been implemented. That is particularly serious in the situations of Sudan, Libya, and Uganda. The Court has refused to issue arrest warrants in cases where there was held to be insufficient evidence and there has been one acquittal after a full trial. Only three trials have been completed. A number of other trials are presently ongoing.
Some of the successes of the ICC are to be found in situations that are not before the Court. They are the consequence of what is known as complementarity that lies at the heart of the Rome Statute. It denies the ICC jurisdiction over situations in which domestic law enforcement agencies are able and willing in good faith to investigate crimes committed by nationals of that state whose alleged crimes would otherwise fall within the jurisdiction of the Court and, if there is sufficient evidence, to prosecute them. In order to encourage such national prosecutions the Prosecutor of the ICC cooperates with domestic prosecuting authorities in order to encourage them to investigate and prosecute crimes that fall within their jurisdiction. This is known as “positive complementarity”. There are some countries that have sought to follow up and investigate alleged war crimes in order to avoid the ICC becoming engaged. One example is Colombia. Many complaints were received by the Prosecutor and they have been regularly investigated by her office. The former and present Prosecutors have visited Colombia to discuss
those investigations. This pressure on governments to investigate war crimes domestically is an important development and indicates that at least some governments are anxious to avoid the ICC launching investigations into crimes allegedly committed in their countries or by their nationals. Such proactive investigations and prosecutions are also calculated to act as a credible deterrent. They would also render unnecessary the use of the resources of the ICC, both financial and human.
Another illustration of the growing credibility and reach of the ICC is provided by the voluntary appearances before the Court in The Hague by the Kenya’s President Kenyatta and Deputy President Ruto. They were charged with being complicit in crimes committed in the aftermath of the Kenyan national elections held in 2007. In December 2014 the charges against President Kenyatta were withdrawn by the Prosecutor. It would appear that the collapse of the prosecution was primarily the consequence of witness intimidation and the refusal by the Government of Kenya to provide evidence sought by the Prosecutor. There can be little doubt that the Kenyan leaders appeared before the Court in order to avert the pariah status that has been visited on President Al-Bashir of Sudan and his inability to visit many nations around the world.
President Al-Bashir chose to ignore and, indeed, he demeaned the issue of warrants for his arrest on charges of genocide and other war crimes. The Government of Sudan has refused to recognize the authority of the ICC notwithstanding that the referral resolution of the Security Council is binding on Sudan. The Security Council has failed to respond in any appropriate manner to the Government of Sudan ignoring orders of the Court including the warrants of arrest issued against its nationals and, indeed, President Al-Bashir. The unfortunate result is that during December 2014, the Prosecutor publicly suspended the investigation into crimes committed in Darfur. The reason she gave for this step was the lack of support from the Security Council.
The Kenya and Sudan situations have created new and different problems for the Assembly of States Parties (the governing body of the ICC). If the failure by the Government of Kenya to comply with orders from the Trial Chamber led to the failure of the prosecution against President Kenyatta, the Assembly of States Parties might well have to determine what appropriate action it might take against a States Party that fails to honor its obligations under the Rome Statute. And, in the case of Darfur, the Assembly of States Parties might well consider that its relationship to the United Nations requires a reappraisal. There can be no doubt, I would suggest, that the Prosecutor is likely to be wary of accepting other referrals from the Security Council.
If there was no ICC, I have no doubt that the global community would be in the process of establishing one. The effects of globalisation have made it essential for transnational and international courts to operate. Powerful nations tend to object to their officials being subject to the jurisdiction of courts outside of their own borders. But that will undoubtedly change as it becomes increasingly in the interests of all States to have international law enforced. This trend is well illustrated by the Appellate Body of the World Trade Organization. Trading nations are using that Court more frequently each year. It is most used, whether as claimants or respondents, by the large trading nations and especially the United States, the European Union and in recent years, China. These decisions are dictated by what nations consider to be in their own interests.
There are undoubtedly serious issues and problems facing the ICC. The question that is now before the Assembly of States Parties, judges and prosecutors of the ICC is how to make the Court more efficient and relevant. Its justification, necessity and permanence should today be taken for granted.
Source: http://www.judicialmonitor.org/current/index.html
Comments