Martha Nanjobe
18 August 2008
opinion
Kampala — The Rome Statute which established the International Criminal Court (ICC) was adopted at a diplomatic conference in Rome in 1998 and it came into force in 2002. Ten years on, in July 2008, there were 139 signatories and 107 State Parties (ratifications) to the Rome statute.
The statute classifies the most serious crimes against human rights and establishes procedures for prosecuting such cases.
The statute also establishes the court's functions, jurisdiction and structure. Theoretically, the court has universal jurisdiction but it can only prosecute if the State where the crime was committed or the accused person is a national of a signatory to the Rome statute. The UN Security Council can also refer cases like the Darfur situation to the ICC.
The Rome Statute has changed parameters of resolving conflict and promoting peace. There is an emerging norm that perpetrators of crimes of international concern cannot go unpunished.
The court has investigated crimes committed in the Democratic Republic of Congo, northern Uganda, Darfur and the Central African Republic and issued eight arrest warrants. One Congolese militia leader, Thomas Lubanga, is in custody awaiting trial. The ICC has contributed to restoring peace and justice in conflict zones by reducing impunity and reaffirming the rule of law.
However, the ICC faces challenges in fulfilling its mandate. First, the Rome statute has not been universally ratified. Countries that have not ratified the statute include the US, China and Russia.
This means that over half of the world's population remains unprotected from impunity. Countries like China are advocating for the suspension of the indictment against President Omar el-Bashir of Sudan, yet they are also accused of supplying arms to Sudan, a direct violation of international law and a UN embargo.
Furthermore, countries like the US have undertaken steps that undermine the ICC. The US un-signed the Rome statute and has gone ahead to bind ICC state parties into bilateral immunity agreements that exempt US citizens from ICC jurisdiction, thus making State parties violate their obligations to the ICC.
Secondly, the ICC faces structural weaknesses that undermine its capacity to enforce its decisions. The Court depends on the good will of national governments to ensure the arrest and transfer of suspects.
For instance, Sudan is not a state party to the Rome Statute but its President and some ministers face war crime charges. It is unlikely that goodwill for international criminal justice will prevail over the Sudanese government to compel them to hand over the wanted persons to the ICC or try them in Sudanese national courts.
Charles Taylor's indictment was also unsealed while he was in Ghana but instead of arresting him, the Ghanaian government gave him safe passage to Liberia. The arrest warrants of five members of the Lords Resistance Army (LRA) were unsealed in 2005 but the suspects are not in ICC custody.
This is because the ICC depends on cooperation which is sometimes not forthcoming. The ICC undertakes investigations in remote conflict zones which hamper the court's effective mandate. In cases like Darfur, investigations are mainly conducted outside Sudan because the Sudanese government is uncooperative.
Thirdly, the ICC's work is affected by politics or diplomacy based on practical considerations rather than ideology. In Africa, many wars end in local deals with victors reluctant to punish and losers getting benefits and/or government positions.
For example, RENAMO gangs perpetrated war crimes and crimes against humanity in Mozambique in the 1970s but after negotiations with the government, perpetrators were given houses, salaries and cars, and their group became the official opposition. In Sierra Leone, the Revolutionary United Front (RUF) perpetrated atrocities, including forcing children to kill and eat their relatives.
The civil war ended when the RUF was brought into government after a peace agreement in 1999. In Angola, Jonas Savimbi was killed in 2002 and the government granted amnesty to his followers and brought them into parliament. Sudan has just ended a 50-year-old conflict in a deal that leaves the perpetrators of war crimes on both sides unpunished.
Fourthly, the ICC is subjected to public opinion pressures regarding the primacy of peace over justice. Whenever the ICC exercises its jurisdiction, there are people challenging its decisions or timing. In the former Yugoslavia, Liberia and Uganda, indictments were opposed because they were likely to hinder peace negotiations.
Opponents of Bashir's indictment have also alleged that it could worsen the humanitarian crisis in Darfur.
Pursuing justice during armed conflict creates challenges regarding the relationship between peace efforts and criminal prosecutions. In some cases, key players in peace talks are war crimes perpetrators. However, the role of the ICC in restoring peace and justice in conflict zones, as well as reducing impunity cannot be overstated.
The writer is the project coordinator for Advocates for International Law Initiative
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