Freeland, Steven --- "International Criminal Court - Future Challenges" [2009] ALRS 24

Last Updated: 25 July 2010

The International Criminal Court – Challenges for the Future

Professor Steven Freeland[1]

Developing Momentum

On 26 January 2009, the trial of Thomas Lubanga Dyilo, a Congolese national and alleged founder and leader of the rebel group Union des Patriotes Congolais, began before Trial Chamber I of the International Criminal Court (ICC), comprising Judges from England, Bolivia and Costa Rica. Mr Lubanga, who was arrested and surrendered by the Congolese authorities to the ICC in March 2006, has been charged with war crimes relating to the conscription and enlisting of children less than 15 years of age and using them to participate in hostilities. His trial was originally due to commence in 2007, and then again in June 2008; however, due to issues relating to the confidentiality of some Prosecution evidence that had been provided by various agencies of the United Nations, this was delayed until the Judges were satisfied that Mr Lubanga would, in all of the circumstances, receive a fair trial.

The commencement of this trial constitutes a highly significant landmark for the ICC, the world's first permanent international criminal court. It represents a further indication of the shift towards a globalised system of international criminal justice that has taken place over the past decade, as the international community moves to establish tangible enforcement mechanisms intended to deal with those international crimes that represent a gross violation of universal human rights norms and international humanitarian law principles. It demonstrates that these mechanisms – of which the ICC is an important part – can result in a process of accountability that is both fair and public. Significantly also is the fact that this will be the first ever international trial that has allowed for victims of such crimes to be active participants as parties to the trial, thus giving them far greater scope to have their voice raised and their story told.

There is no doubt that there remain imperfections in this still-evolving system of international justice. However, what is clear is that the broader international community, and civil society, have accepted the need to institute mechanisms designed to put an end to the era of impunity that existed for many decades prior to the 1990s for the perpetrators of these crimes.

This is evident by the pace of acceptance of the Rome Statute of the International Criminal Court (Rome Statute), the treaty by which the Court is established. Even as it was being finalised in July 1998 at the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court in Rome (1998 Rome Conference), some commentators predicted that it would be many years before the required 60 State ratifications for the Rome Statute to come into force would be achieved. Instead, within four years, the Rome Statute was in force and the Court was established. In October 2005, Mexico submitted its formal ratification, bringing the number of States Parties to the highly symbolic number of 100. Since then, other States, including Japan, have ratified the Rome Statute, providing the Court with an even more secure financial base from which to operate (Japan now provides over twenty percent of the Court’s annual budget). The number of States Parties currently stands at 109, representing over half the countries in the world. In addition, there are approximately 30-40 other signatory States, several of which are expected to ratify the Rome Statute relatively soon.

It is true to say that the establishment of the first permanent international criminal court was an event as political as it was significant in the evolution of international criminal justice. The negotiating States, as well as the other stakeholders, at the 1998 Rome Conference, represented a multitude of differing views as to how the Court should be structured, particularly in relation to the breadth of its jurisdiction and its relationship with the United Nations Security Council. There were significant divisions among the participating delegations in a number of important areas. Its final terms were, in many respects, the result of political compromise. Such is, however, the nature of multilateralism, which seeks to be broadly inclusive, rather than representing the prevailing views of one or two States above all others. Indeed, compromise was needed on all sides in order that the Rome Statute could be presented as a ‘marketable’ instrument to the conference delegates.

In the end, the conclusion of the Rome Statute, and the establishment of the ICC were more important than the (impossible) task of satisfying the concerns of all of those involved. If anything, the importance of the principles represented by the aims of the Court has grown further since those heady days in Rome.

There is no doubt that there is much work to be done in order to ‘convince’ other States - particularly the larger and more powerful countries such as the United States, Russia and China - that the ICC does not represent a threat to their sovereignty, but rather is one important tool in a broader scheme to protect international peace and security. Following the agreement of delegates at the 1998 Rome Conference to adopt the Rome Statute, the then United Nations Secretary-General, Kofi Annan, described the creation of the Court as ‘a giant step forward in the march towards universal human rights and the rule of law’. Since then, it has become increasingly apparent that the need for a permanent international criminal court, with jurisdiction over ‘the most serious crimes of concern to the international community as a whole’ has been widely accepted.

Even from the perspective of the United States, for example, there has been an undeniable shift towards regarding the Court as an increasingly important tool of international justice and international relations. The issue for the United States has not been so much the existence of the Court itself, but rather the potential for an American national to be brought to trial in The Hague. There have been recent indications that the Bush Administration in the United States had begun to reappraise its overt opposition to the Court, particularly in relation to its aggressive strategy of pressuring developing countries to enter into so-called ‘Article 98’ bilateral immunity agreements.

Moreover, it should be noted that the United States ultimately chose to abstain from voting on (rather than vetoing) United Nations Security Council Resolution 1593, which referred the situation in Darfur since 1 July 2002 to the Prosecutor of the Court. In this vein of cooperation, neither of the other two non-State Party permanent members of the Security Council – Russia and China – blocked the referral. Since then, the Court has issued two arrest warrants against Sudanese nationals, and is currently considering a request by the Prosecutor that an arrest warrant also is issued against the current President of Sudan, Omar Hassan Ahmad al-Bashir (a decision on this request is still pending).

It remains to be seen whether, and to what extent, the new Obama Administration in the United States continues this policy of closer cooperation with the Court and in relation to its ongoing activities. However, based on comments made during the election campaign, most commentators are hopeful that this momentum will be maintained, if not strengthened.

The Jurisdiction and Significance of the ICC

The ICC has jurisdiction with respect to the following crimes committed after 1 July 2002:

1. The Crime of Genocide – which involves an intention to destroy all or part of a national, ethnic, racial or religious group, as such (dolus specialis);
   
   
2. Crimes against Humanity – which involves a widespread or systematic attack on any civilian population, with knowledge of the attack;
   
   

100. War Crimes – which usually involves a breach of 1949 Geneva Conventions and the laws and customs of armed conflict;
     
     

4. The [as yet undefined] crime of Aggression – a group of experts is currently working on a proposed definition of this crime, which will then be presented to the Assembly of States Parties for its consideration at a Review Conference to be held in Uganda in 2010.
   
   

The Court has been given the mandate to play a role when the most serious international crimes have (allegedly) been committed. As a permanent court, it differs from previous international criminal tribunals, which were established as ad hoc bodies. Those Tribunals, including the International Criminal Tribunals for the Former Yugoslavia (ICTY) and for Rwanda (ICTR), were set up in response to specific events and were always intended to have a limited life-span. Indeed, both of those Tribunals are currently operating to a ‘Completion Strategy’ specified by the United Nations Security Council, which envisages that all investigations would have been completed by the end of 2004, all trial activities at first instance would have been completed by the end of 2008 (although this will not be the case, particularly after the capture of Radovan Karadzic), and that the work of each of the Tribunals is scheduled to be completed in 2010 (again, it is not clear that this will be achieved).

By contrast, the ICC is a permanent institution with the power to exercise its jurisdiction with respect to circumstances that may occur in the future – that is, at any time after the Rome Statute came into force. Unless the Assembly of States Parties decides to completely alter the nature or focus of the Court, the ICC will remain in place for the long-term.

The establishment of the ICC reflects a determination of the international community that those who bare the greatest responsibility for mass killings and other atrocities directed towards specific groups be made fully accountable in a transparent process, leaving no room for subsequent historical revision. A principal aim of the ICC as expressed in the Rome Statute is to ‘put an end to impunity’ for the perpetrators of international crimes and ‘thus to contribute to the prevention of such crimes’. While these are lofty and perhaps even unattainable goals, they are certainly worthy of every effort.

In this sense, the Court represents an important guardian of those values and norms that are accepted universally among the international community. Not only is this important in and of itself; it also reaffirms the interrelationship between the maintenance of international peace and security – an underlying theme of the United Nations Charter - and the respect for human rights. As the United Nations Security Council acknowledged in 2006:

... peace and security, development and human rights are the pillars of the United Nations system and the foundations for collective security and well-being, and ... in this regard ... development, peace and security and human rights are interlinked and mutually reinforcing

From the outset, the Court was regarded as a significant - as well as highly symbolic - legal mechanism designed to bring to account those responsible for gross violations of the most fundamental human rights norms. It could be said that the international criminal law principles reinforced by the ICC represent the ‘flip side’ of these human rights norms, in that they provide the framework to regulate the processes of accountability for the perpetrators of gross violations of human rights. The establishment of the ICC, as well as its jurisdictional reach, represent a continuation of the ongoing trend we are witnessing towards the ‘internationalization’ of criminal justice – the establishment of formal international mechanisms to apply and enforce existing universal norms of international criminal law, as well as those that will develop in the future.

It should be noted, however, that this process of internationalization does not necessarily represent the ‘harmonization’ of existing national criminal law principles. Naturally, the specific domestic criminal laws of any one country will depend, at least to a certain degree, on that country’s history, culture, political system and values and, as such, remain the exclusive domain of each State. However, the principle of ‘complementarity’ that underpins the Rome Statute framework means that States Parties will be find it appropriate and necessary to amend their national laws to more accurately reflect the crimes and principles outlined in the Rome Statute. Indeed, approximately half of the States Parties to the Rome Statute thus far have ‘upgraded’ their national laws in this way, including both Australia and New Zealand.

This is an important ‘by-product’ of the establishment of the Court. What it demonstrates is that the internationalization of justice recognises that there are certain norms of international criminal law that transcend national boundaries and, like fundamental human rights norms, are to be regarded as universal in acceptance and thus universal in application. These are particularly reflected in the nature of the specific international crimes that exist, as well as those principles that regulate and protect the rights of all stakeholders – the accused, witnesses and victims – in any trial arising from the alleged commission of such crimes. The incorporation of these principles into the domestic laws of an increasing number of countries itself adds to the momentum for justice and accountability for crimes that, in past decades, would have gone unpunished.

The Way Forward – What are the Challenges Ahead?

All of this presents a positive picture for the future of the ICC. There is a growing acceptance of its aims and activities, an increasing number of States are ratifying the Rome Statute, there is a trend towards greater cooperation with the Court by State Parties and, equally importantly, powerful non-State Parties, and the first trial has now begun. However, it is important not to become complacent, nor to assume that the Court will necessarily go from strength to strength and ‘solve’ the problems of the world, without ongoing and increased international support.

Indeed, despite all of the developments referred to above, there are commentators – as well as certain States from both within and outside the Rome Statute – who believe that the Court has yet to ‘prove itself’ and that the Lubanga trial really represents a ‘test case’ for the Court. For these people, the ICC has yet to gain the credibility that it needs to be a truly universal and viable mechanism for international justice and accountability.

So what challenges does the Court face? One thing that most people do agree on is that these will come from many quarters. I have taken the liberty of grouping what I see the challenges that the Court will face over the coming months and years in the following way;

1. Structural Challenges
   
   

Building a new institution, particularly one that involves people across the broad spectrum of the international community and is engaged in complex, controversial and difficult work in many countries of the world, is a very difficult task. Apart from the logistical issues (premises, agreements with the Host State, establishing systems of management etc), there are many other structural challenges to overcome.

Naturally, the recruitment of appropriately qualified personnel is crucial to the efficient operation of any organisation. Like traditional United Nations agencies, the ICC operates on the basis of a fair and equitable distribution of staff from all States Parties and regions of the world. In effect (if not formally) there may be ‘quotas’ in place that might result in important tasks and positions not necessarily being given to the ‘best candidate’. Moreover, and although it is unspoken, there is certainly scope for ‘deals’ to be done between States in respect of senior and influential positions at the Court. Indeed, and without in any way wanting to criticise the people in those positions, even the Judges are ‘elected’ by States. It would be naïve to assume that the only criterion that was considered in deciding who should be elected was that candidate’s qualifications for the job.

Having said this, the ICC is largely staffed by highly qualified and motivated professionals at all levels. That is not to say that everything always works well – there are approximately 90 States currently represented by the staff at the Court, each from a different background and perhaps also with a different approach to work and work practices.

Of more significance in terms of structural challenges is the issue of demarcation of tasks among the various organs of the Court (Presidency, Chambers, Prosecution, Victims and Witnesses Unit, Registry). Since the terms of the Rome Statute are the product of years of negotiation and compromise, there are various aspects of its activities that are not clearly demarcated between the organs. Moreover, the activities of one area may overlap with, and perhaps (potentially) conflict with another (for example the Victims Unit and the Prosecution, or the Registry and the Prosecution). The early jurisprudence of the Court has had to deal with a number of these issues, but there remain several important questions that, in the end, will only be resolved when the Chambers are called upon to give its determination.

However, it has to be said, in concluding on this issue, that in the six and a half years since it was established, the Court has overcome many of its structural challenges and is well equipped to meet others that will undoubtedly arise in the future. Like all large organisations, there are ‘teething problems’ to be addressed and these are usually resolved over time.

2. Legal Challenges
   
   

The compromises that lead to the final version of the Rome Statute also give rise to a number of important legal issues. It was inevitable that there would be several (indeed, many) points on which the terms of the Rome Statute and its subsidiary documents, the Rules of the Court and the Regulations of the Court, would lead to ambiguities and uncertainties. There are many issues concerning the practical application of the ‘complementarity’ principle that remain to be answered. Indeed, like the early cases in the ICTY and ICTR, there may even be a challenge as to the legality of the Court itself, although there is no indication that this will be raised in the Lubanga case.

Thus far, only ‘external’ parties - either States or the United Nations Security Council (in relation to Dafur) – have initiated those ‘situations’ that are formally before the Court. The Prosecutor has not yet initiated any formal investigations under his propio motu powers. It had been suggested shortly after the 1998 Rome Conference that the States on whose territory such crimes had taken place or whose nationals were suspected of having committed them would not agree to be bound by the Rome Statute. However, the experience so far seems to indicate that States are willing to approach the Court, through these mechanisms, even though they are the territorial State and/or the State of nationality.

It is possible that this trend may continue and that the so-called ‘self-referrals’ of the type made by States Parties (Uganda, Democratic Republic of the Congo and Central African Republic) or ‘self-declarations’ (made by a non-State Party, Cote d’Ivoire) may end up being utilized to a significantly greater degree than had been anticipated when the Rome Statute was finalized. While any form of cooperation by States is generally to be welcomed, this trend gives rise to difficult legal issues. States may choose to ask the Court to act for a variety of reasons – some ‘genuine’, but some perhaps more political in nature. It may suit the Government of a State to involve the Court for reasons not directly related to the ‘unable or unwilling’ test underpinning the application of complementarity.

The question thus arises – if a State brings a matter to the Court, can it at the same time ‘limit’ the scope of the Court’s involvement or subsequently even seek to ‘withdraw’ its referral? These are not simply questions of academic curiosity. When Uganda referred the situation in that country to the Court, it sought to limit the Prosecutor’s investigations only to actions by the Lords Resistance Army (LRA) alone (ie not including the actions of the Uganda army itself). The Prosecutor announced that he did not regard himself as being limited in this way, although to date arrest warrants have only been issued in relation to LRA leaders.

More significantly, however, is the question of withdrawal of a referral. The past few years have seen a process of peace negotiations between the Uganda Government and the LRA. Many in Uganda and elsewhere now criticise the arrest warrants issued by the Court as being an impediment to this quest for peace, and the LRA has insisted that they be withdrawn as a condition of any final peace agreement. There are a growing number of people, including several human rights NGOs, who now support the complete withdrawal of the Uganda referral. Yet, even if this were to be done, it is by no means clear whether it would divest the Court of its jurisdiction. Once again, only a determination by the Chambers will provide a definitive legal answer.

Other legal challenges facing the Court revolve around the need to ensure that the rights of the accused to a fair and expedient trial are properly respected. This touches upon a fundamental element of human rights law as it is applied to this system of internationalized criminal justice. The rights granted to accused – any accused – brought before the mechanisms of international criminal justice reflect core principles set out in the twin Human Rights Covenants. Indeed, one of the primary justifications of the system of internationalized criminal justice is that it ensures a fair trial for all accused – even those accused of the most heinous of crimes – so that the credibility of the process will itself reinforce the importance of the decision of the Court, as well as the historical record that arises from the evidence presented.

There have already been a number of important preliminary decisions issued by Chambers that relate to this fundamental issue. As mentioned, the Trial Chamber was deeply concerned about the use of confidential evidence in the Lubanga case, particularly since it may have contained exculpatory material. Other questions relating to such diverse issues as the right to interpretation (into a language the accused fully understands) and the right to have appropriate resources made available for Defence Counsel have already been addressed by the Court. No doubt many other issues relating to the fairness of the trial process will arise in the future and it is to be anticipated that the Court will take all necessary measures to ensure that the rights of the accused are not unduly prejudiced.

But, of course, this is not always an easy question and, in the case of the ICC, the position is complicated quite significantly by the fact that victims are also parties to the proceedings. In the Lubanga trial, for example, some 93 victims are currently being represented by Counsel and are parties to his trial. Apart from the logistical and trial management issues that this entails – which themselves may compromise the right of the accused to an expeditious trial – it is quite clear that in many instances, the interests of victims as a party will conflict with those of the accused, and even the Prosecution. The Chambers will, as the case before it dictates, need to weave a careful path between these competing interests without unfairly prejudicing the rights of the accused. This is not a simple task, particularly since the involvement of victims as a party is unprecedented at international criminal law.

100. Political Challenges
     
     

Many of the political challenges facing the Court have been touched upon already. Undoubtedly the attitude of the major powers towards the Court and its activities will be crucial for its ongoing and long-term viability. This is also reflected in the relationship between the Court and the United Nations Security Council – already, for example, many Arab and African countries are putting pressure on the Security Council to defer any possible proceedings against President Bashir, as it is entitled to do under the terms of the Rome Statute.

The Uganda example mentioned above, as well as those arguments raised in favour of deferring the Sudan investigations, revolves around the ‘peace v justice’ dilemma. Whilst I would argue that, in the vast majority of cases, it is not possible to have true peace without justice and accountability, the prevailing realpolitik dictates for many that justice is ‘backward looking’ and that it should be sacrificed so as to allow for a ‘forward looking’ peace arrangement to be finalised. Others argue that the best one can hope for is ‘peace now and justice maybe later, when things settle down’. These questions are themselves controversial and one’s viewpoint will differ depending upon whether it is looked at from the perspective of the Government of the day and the international community on the one hand, or of victims on the other.

In addition, it must be remembered that the ICC is primarily dependent on the cooperation of States. It has no ‘police force’ and is entirely reliant on States to affect the arrest of indicted individuals so that they can be brought before the Court to face trial. The ICC has been criticised for not having its arrest warrants respected. The reality, of course, is that there must be sufficient political will if this is to happen.

4. Practical Challenges
   
   

The jurisdiction of the Court means that it is involved in very complex factual situations. To investigate the surrounding circumstances of an alleged international crime is lengthy, painstaking, difficult and expensive work. It is often undertaken in trying situations, even in the midst of ongoing conflict. In these circumstances it is frequently difficult to gather all the relevant evidence and speak to all necessary witnesses and victims, who are often living under the fear of reprisal for having been seen to have cooperated with the Court.

Coupled with this, the practical difficulties inherent in some of the countries with which the Court is involved are enormous. Consider the Democratic Republic of the Congo; a country the size of France but with only about 400 kilometres of paved roads. It does not take too much imagination to understand how all of these factors make it seemingly impossible to effectively undertake the work of the Court. The work of those in the field is not for the faint hearted. Yet, there is a need for accurate, reliable and timely information and for all pertinent facts and issues to be placed before the Court, so that it can properly adjudicate the difficult questions with which it is presented.

5. Financial Challenges
   
   

For many of the reasons alluded to above, the work of institutions like the ICC is very expensive. One cannot understate the significance of funding and resources in relation to the operation of the various mechanisms of international justice. Some commentators have characterized the ICTY and ICTR as a form of ‘foreign assistance’, estimated to be as much as US$4.5 billion since the time they commenced operations. There is no doubt that the high cost associated with these ad hoc Tribunals was an important factor leading to the development of their respective Completion Strategies, with the focus of their remaining work to be the prosecution and trial of the ‘most senior leaders suspected of being most responsible’ for the relevant crimes.

The issue of finance remains a vital element in the operation of the ICC, which is required to submit a budget proposal each year to the Assembly of States Parties for consideration and approval. The annual budget of the Court currently runs at approximately 90-100 million Euros. Within the overall context in which the ICC is to operate, the Court has adopted a ‘Strategic Plan’, which was presented to the Committee on Budget and Finance of the Assembly of States Parties. As a part of this process, the Court has developed a ‘Court Capacity Model’, essentially to align current and projected resources to future needs and capabilities.

This has lead to a fundamental debate – should the extent of the Court’s activities be driven by, and limited to its existing resources or, rather, should resources be made available as and when required to meet the demands of the Court’s activities. If the former approach is taken – and this seems to be the preferred option of States Parties at this time – then it is estimated that the Court can only conduct three full trials at any one time.

In essence, an even more fundamental question must be asked - ‘How much international justice are we prepared to pay for?’ It is the answer to this question that may determine the longer term future of the ICC.

Concluding Comments

The commencement of the first trial at the ICC is a very significant event and should not be underestimated. It demonstrates that the culture of impunity that prevailed for far too long after the end of the Second World War is no longer acceptable. There is now a permanent court designed to play an important role in international criminal justice. It has gained increasing support among States and has helped to further raise the consciousness of the world to the need to ensure that those responsible for international crimes are brought to account.

Furthermore, by institutionalizing a role for victims as a party to any trial proceedings, the ICC provides far more relevance and hope for those whose lives have forever been affected by the acts of others.

Yet, these are still relatively early days. There are many challenges ahead for the Court. While one should remain optimistic about its future, this does not lie entirely in its own hands. What is required is the political will to ensure that this vital element in the internationalization of justice is given every opportunity to work effectively and transparently, in the interests of today’s and future generations.

[1] Associate Professor of International Law, University of Western Sydney, Australia; Visiting Professor of International Law, University of Copenhagen, Denmark; Visiting Professional (Chambers), The International Criminal Court, The Hague, The Netherlands.