On 15 September 2011, the Non-Governmental Organisation, Human Rights Watch (HRW), published its long-awaited report on the effectiveness of the Prosecutor of the International Criminal Court (ICC) in prosecuting cases since its founding treaty, the Rome Statute entered into force on 1 July 2002.
The 50-page report titled,“Unfinished Business: Closing Gaps in the Selection of ICC Cases," questioned the effectiveness of the ICC Prosecutor’s office in delivering justice. The investigation, which was based on information garnered from the close monitoring of the ICC over the last eight years and Human Rights Watch’s country investigators, reveal that only a miniscule 17 arrest warrants and nine voluntary summons have been issued following investigations in six countries – Central African Republic, Sudan, Democratic Republic of Congo, Kenya, Uganda and lately Libya – and these have only resulted in 10 cases and trials.
The content of the report pass a damning verdict on the world’s first permanent treaty based international criminal court established to help end impunity for the perpetrators of the most serious crimes of concern to the international community. These crimes include genocide, crimes against humanity, war crimes and crimes against aggression. The report is also far from complimentary about the work carried out by the office of the prosecutor of the ICC, Luis Moreno-Ocampo.
Amongst the criticisms levelled at the ICC are claims that its investigations and prosecutions have failed to demonstrate coherent and effective strategies for delivering meaningful justice to affected communities. It goes without saying that issues such as the prolonged trials of the Democratic Republic of Congo suspects in custody, some of which are far from conclusion and the arrest warrant issued for one of the chief perpetrators, Bosco Ntaganda, which is still yet to be executed does little to lend to the credibility of the ICC or to pacify its critics.
Perhaps the most damaging criticism of the ICC relates to its perceived impartiality and unfairness in prosecuting cases. The ICC is alleged to have deliberately avoided targeting military and civilian authorities for prosecution for political reasons on several occasions whilst carrying out some of their investigations. Thus it is inexplicable that the ICC have investigated and issued arrest warrants for the rebel group Lords Resistance Army (LRA) led by Joseph Kony which is alleged to have abducted children, terrorised, mutilated and killed civilians during its long running conflict with the Uganda government. The ICC have however failed to issue arrest warrants against the Ugandan government who are strongly alleged to have beaten, detained and tortured civilians alleged to be “rebel collaborators”.
The same can also be said lately of Libya where the ICC Prosecutor opened an investigation into the actions of the previous government led by Muammar Gaddafi whilst at the same time turning a blind eye to the wide scale crimes alleged to have been committed by the fighters and leaders of the newly constituted National Transitional Council during the recent civil war. These criticisms do not end at just those levelled by the HRW report. Significantly, Elizabeth Evenson, in her article “Gaddafi prosecution can help ICC complete unfinished business”, published in the Guardian avers that some ICC investigations have often bypassed major perpetrators of the crimes. Hence only the Sudanese President and a few others have been indicted for the commission of mass crimes in Darfur although HRW and various NGOs have clearly identified other significant players. Issues such as this lend credence to the opinion that the ICC is clearly falling short of fulfilling its remit of prosecuting those responsible for grave crimes.
Although the Court has had its share of detractors and critics, the United Nations Office of the High Commissioner for Human Rights (OHCHR) October 2010 report - “UN Mapping Report” - states that the ICC’s activities in the Congo have contributed to reopening the debate on the fight against impunity in the Congo; in turn, this has given hope to the victims of the violations committed in the region. Also, contrary to the views of some commentators that the indictment of the Sudanese President may damage and undermine the prospects for peace in Darfur, Darfuris have particularly embraced the ICC’s attempts at bringing the Sudanese government to justice. In an article published by the Human Rights advocacy group, Waging Peace, and titled “The ICC and its critics”, the Secretary-General of the Darfur Union in the UK, Khatir Kayabil, expressed huge support for the work of the ICC. Mr Kayabil stated: “We are the victims of the crimes for which President Bashir has been charged and we don’t want this brute appeased. We need justice and we need to be heard”.
In truth, the ICC is hindered by the unbounded ambitions of its Prosecutor, Luis Moreno-Ocampo. Thus while the Prosecutor’s intentions to open new investigations into mass crimes in Libya and the Ivory Coast is noteworthy, one cannot help but feel that these new investigations will come at the expense of ongoing prosecutions and investigations which are far from being concluded. If the ICC is to regain its credibility or to be seen by victims of violations to be delivering justice, the need for taking on new prosecutions and investigations must be balanced against the resources available to the ICC for prosecuting and closing cases.
It is also vital that states parties provide the necessary resources, be it financial, political or otherwise, to enable the ICC achieve its aims; without states parties support, it will virtually be impossible for the ICC to operate and to execute its mandate. Also, the choice of investigation and prosecutions initiated by the ICC has drawn the wrath of African leaders who note that only Africans have been indicted thus far by the Court. Perhaps it is also logical to question why the leaders of Sudan and Libya have been indicted by the Court while those of Burma, the United States of America and the United Kingdom – on the basis of crimes committed in Iraq – have not been investigated. Although these countries have not ratified the Statute of the Court, the same applies to Libya and Sudan, albeit in these cases, the United Nations Security Council referred the question to the Court. It is however unlikely that the cases against the UK or the USA will be referred to the UN Security Council as both sit as members on the Council; therefore, it is unlikely that the fears of the African leaders may be allayed any time in the immediate future or at all.
In conclusion, it is hoped that the recommendations made by HRW is adopted by the ICC if the Court is to ensure that the perpetrators of mass crimes will no longer evade justice. The ICC states parties are expected to elect a new Prosecutor at their next annual session in December 2011. The communities who have been subjected to mass crimes, victims and the world wait with bated breath in anticipation that the new Prosecutor will add significantly to the limited gains made by the incumbent. 1worldinternational certainly hopes that the new Prosecutor heeds the mantra that quality, and not quantity only will revive the ailing fortunes of the ICC.
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