analysisBy Adam Robert Green
As the International Criminal Court marks its tenth anniversary, lawyers and human rights advocates ponder the lessons so far.
This July, the International Criminal Court marked its tenth birthday with its first conviction, sentencing the Democratic Republic of Congo's Thomas Lubanga to 14 years imprisonment for the use of child soldiers during a 2002-3 conflict in the north east of the country.
A decade in, the court, based at the Hague, is the first attempt to bring together several attempts at post-conflict justice, ranging from the post-war 'victors' tribunals in Tokyo and Nuremberg to the ad hoc UN courts for Yugoslavia and Rwanda.
Progress has been mixed. "The establishment and functioning of the ICC is one of the most significant advances human rights protection and ensuring perpetrators of the worst crimes are held to account," declares Elise Keppler, senior counsel at the international justice program at Human Rights Watch. "At the same time, it has an incredibly tough, complex job, and there is room to draw lessons from the first ten years to improve future practice"
While preliminary investigations are underway in Afghanistan, Georgia, Colombia, Honduras and North Korea, all of the ICC's active investigations are in Africa - Uganda, the Democratic Republic of Congo, Kenya, the Central African Republic, Sudan and - most recently - Libya and Cote d'Ivoire.
This, combined with its flowery, lakeside location in the Netherlands, has led to allegations of 'distant, white man's justice'. Jean Ping, former African Union Commissioner, described the ICC as "discriminatory" for investigating African crimes while ignoring those committed elsewhere. The AU's position is criticised by Richard Goldstone, the first chief prosecutor of the UN's International Criminal Tribunals for the former Yugoslavia, and Rwanda.
"The stance of the AU is highly regrettable and based on allegations that are factually incorrect and unfair," says the South African judge. The 2002 Rome Statute that established the ICC was ratified by 121 nations, and Africa constitutes the highest number of supporting states from any UN region. Of the seven cases currently before the ICC, three were referred by African governments and two were referred by the Security Council. One of those - Libya - was founded on votes from Gabon, Nigeria and South Africa, who held non-permanent seats on the Security Council at the time. Last but not least the new chief prosecutor, Fatou Bensouda - who hails from The Gambia - has now called an investigation in Mali after a government referral. If the ICC has focused on Africa, it is in large part because many African decision-makers - although certainly not all - have wanted it to.
The AU is, however, not the only body to take issue with the court. A number of major governments, including the USA, China and India are amongst 41 UN members that have neither signed, ratified or acceded to the Rome Statute, although the US seems to content to turn the ICC's lens in Africa's direction despite this. In July, as the US cut aid to Rwanda, the head of the US war crimes office warned that President Paul Kagame, among others, could be brought in for a prosecution for aiding armed groups in the DRC.
Allegations of a bias towards prosecuting cases in Africa are not easily dismissed, since other regions have seen their share of war crimes which must be investigated. "It is unfortunate that there are no situations before the ICC that come from other continents," acknowledges Mr Goldstone, "but that is certain to change in the coming years". To do so, governments of other regions would need to make more referrals than they do currently, which is unlikely given that many governments suspected of such crimes are still in power and would not be expected to refer themselves to the court. Perhaps more problematic is the politicisation of the Security Council.
While there is evidence for war crimes in Syria, Sri Lanka and Chechnya, justice for crimes in all of these instances are politically awkward for members of the Security Council, and have not even come up for votes. "It is important that the Security Council exercises greater consistency in ensuring justice wherever the worst crimes are committed, regardless of the political considerations," says Ms Keppler.
Before expanding the court's portfolio, take note of its controversial performance record to date. Governments relations are often too cosy, or too heated. "The ICC does not have its own police force. It interacts with governments, and is sometimes dependent on those governments for its operations," notes Ms Keppler. This weakens the court. Joseph Kabila, president of the DRC, referred the country's conflict to the ICC. The investigation that followed surveyed a tiny slice of an enormous, multi-state conflict, focusing on acts committed by Lubanga and others in Ituri province. Phil Clark, a conflict expert at the School of Oriental and African Studies (SOAS), publicly claims the Ituri conflict was selected because it was the most remote from Kinshasa, so the ICC could maintain cordial government relations to ensure the security of ICC personnel in the east.
Smooth government relations do matter of course - 4 ICC staff members were recently kidnapped in Libya - but may come at the cost of the court's independence. But self-serving pragmatism may also lie behind the court's decisions over how to structure investigations. Narrowing the scope of the Lubanga case was, Clark claims, intended to keep the Rwandan and Ugandan governments out of the dock despite evidence that implicates members of both governments. For Rwanda, the eastern DRC hosted genocide perpetrators, which the army has sought to avenge. Both Ugandan and Rwandan military figures were accused by a UN report of using military vehicles and aircraft to loot minerals. Writing in the New York Times, Clark argued that chief prosecutor at the time, Luis Moreno Ocampo, also "deliberately ignored" evidence linking Lubanga's Congolese Patriots to the two governments.
The Ugandan government is an ally of the ICC, Clarke claimed. Ocampo allegedly pleaded with Yoweri Museveni to refer the Lord's Resistance Army case to the ICC, beefing up the court with its first state referral. The focus of that investigation is exclusively on the LRA, leaving out the government army, which some allege have committed grave crimes. While Ocampo never ruled out the trial taking account of such crimes, its reliance on government support for its presence in Uganda makes this unlikely, says Clark.
The fight for Saif
Frostier relations characterise the ICC's interaction with Libya and Kenya. Libya has long been at loggerheads with the court; the first AU resolution condemning the warrant for Sudan's President Omar al-Bashir was passed in Tripoli. After the fall of Muammar Gaddafi's regime, his son Saif was caught by the Zintan militia. Libya's patchwork post-Gaddafi government wanted to try Saif domestically. But as images of his father's bloodied corpse in the street beamed on to mobiles phones and internet video sites around the world, international human rights lawyers and the ICC doubted Saif would receive a fair trial. He was, the court claims, being beaten, denied access to a doctor, and misled over the charges against him. Libya is not a signatory to the ICC - few states in the region are - but the Security Council voted unanimously to refer the case to the Hague, despite the government's desire for autonomy. The struggle over Saif's fate intensified when Zintan militants kidnapped ICC staff.
"If Saif Gaddafi could be given a fair trial in Libya that would be the first choice," says Mr Goldstone. But, he claims, evidence so far does not suggest the courts and systems are in place for a fair trial. "It cannot be suggested that there would be adequate security for defense lawyers and for defense witnesses," Mr Goldstone argues. "That Saif Gaddafi should face trial cannot be doubted. The only option at this time is for that trial to be held by the ICC".
Relations with Kenya's government, meanwhile, have been dysfunctional, often acrimonious. After post-election violence in 2007-8, resulting in over a thousand deaths and the displacement of around 500,000 people, a proposal was tabled to build a special tribunal. It was rejected by the country's National Assembly, and repeated attempts to commence a judicial process were stonewalled. The original proposal, known as the 'Waki Commission', recommended that failure to launch a tribunal would result in the case being forwarded to the ICC prosecutor, and some Kenyan politicians agreed due to their suspicion that the Kenyan judiciary was not sufficiently independent. But senior members of government, such as William Ruto, a member of Parliament, and Raila Odinga, the Prime Minister, continually changed their positions. The ICC can launch an investigation if a state fails to, and chief prosecutor Ocampo - urged on by others, including Kofi Annan - opted for that route. The Kenyan government challenged the ICC, as well as seeking access to evidence and witness information, but has so far succeeded in neither. The cases - against MP William Ruto, radio presenter Joshua Arap Sang,, head of the civil service Francis Muthara and deputy minister and finance minister Uhuru Kenyatta - will start in April next year, just after scheduled elections.
The ICC is only one mechanism for achieving post-conflict justice, and should not be loaded with more than it can bear. While narratives of evil warlords presiding over helpless populations are appealing to an often voyeuristic media, the reality of conflict is more complex. In Rwanda, the genocide was not conducted by a small group of elites, but by neighbours and families turned against each other. Redress for the genocide has taken place at multiple levels, with a UN tribunal in Arusha seeking high level perpetrators, and thousands of grassroots community courts - the gacaca - conducting trials of the tens of thousands of Rwandans enlisted to fight.
While a prosecution focus is appealing, amnesties have also been an option when conflicts involve wide-scale systemic violence. The end of apartheid in South Africa entailed a discretionary amnesty in return for admitting crimes. The close of the Sierra Leone conflict also required some amnesties for guilty parties. While it is increasingly recognized that amnesties for war crimes, crimes against humanity, and genocide are not acceptable - this is the UN's position - both cases indicate the messy realities and ugly compromises that have been made. But for as long as prosecution is part of the process, the ICC has a key role to play. Mr Goldstone is optimistic: "I have no doubt that we are a better world for international criminal justice and the withdrawal of immunity for war criminals".