1,133 is not just a number

Fatou Bensouda, Prosecutor of the International Criminal Court

Taking stock of international criminal justice as Rome Statute marks 20 years

18 February 2018 - 10:02

By Thomas Verfuss

Civil society representatives, judges, ambassadors and other diplomats, academics and journalists gathered in The Hague to start the celebrations to mark the 20th anniversary of the Rome Statute. The founding treaty of the International Criminal Court was adopted on July 17, 1998 during a conference in Italy’s capital. The ICC is the first permanent international court to try suspects of genocide, war crimes, crimes against humanity and the crime of aggression.

The Rome Statute was adopted after a few years of operations of the temporary UN tribunals for the former Yugoslavia and Rwanda. ICTY and ICTR were the first international war crimes and genocide courts since the tribunals of Nuremberg and Tokyo after the Second World War and thus created a momentum for accountability after decades of impunity.

ICC president judge Silvia Fernández (Argentina) stressed that it has been the Coalition for the International Criminal Court (CICC), an alliance of non-governmental organisations from around the world, that has organized the first commemorative events. Organisations like Amnesty International and Human Rights Watch played a “crucial role” in the creation of the ICC. As “we are entering a more turbulent world,” Fernández said it was important to “renew the alliance between states and civil society that created the Court”.

ICC prosecutor Fatou Bensouda also sent her “warmest congratulations” to the CICC and its “tireless members across the globe” that keep fighting against impunity. The creation of the ICC was “one of humanity’s proudest moments,” the Gambian lawyer said.

Fabricio Guariglia, the director of the prosecutions division in Bensouda’s office, also stressed: “There would be no ICC without the CICC.”

Former UN secretary-general Kofi Annan, a strong supporter of the court, said: “The victims’ right to justice is our motivation.” When facing mass atrocities, “the default position of the international community is now accountability and not immunity”.

The ICC is often criticized though for having tried only Africans until now, whereas many say former US president George Bush’s place is in the dock as well. And the ICC can do nothing about the mass atrocities in Syria, as the Arab country, like the US, is not a state party to the Rome Statute. Then, in the absence of a UN Security Council referral (like for Darfur and Libya), it has no jurisdiction and cannot intervene.

“International justice cannot be selective,” Fernández said. The goal of the court is to achieve “universality”, that is a situation where all states are members, that is parties to the Rome Statute. Then political and military leaders worldwide will be under the scrutiny of The Hague-based court for their actions.

The US, Russia, and China do not seem to be ready to join the court soon. Speakers at the #RS20 events hope to increase the now 123 states membership by convincing some smaller states to join soon, to create a momentum in the year of the Rome Statute anniversary celebrations.

The ICC functions under the principle of complementarity: it steps in as a court of last resort when national justice systems are unwilling or unable to investigate and prosecute. The chef de cabinet of the ICC president, Kimberley Prost, stressed that this requires “building national capacities”. This is not a primary responsibility of the ICC, as it does not have the mandate, the Canadian judge-elect said, but a joint task of states, intergovernmental organizations and NGOs.

In the Central-African Republic, where the judicial infrastructure has been severely damaged by years of civil war and violence, the international community is now helping to set up a special court to deal with the atrocities of recent years.

The ICC needs the cooperation of states to fulfill its mandate, but at key moments states have not lived up to that obligation when powerful leaders did not want to cooperate. “In Kenya local prosecutors were prepared to cooperate – but they had limits,” Guariglia said.

Lorraine Smith-Van Lin of Redress, an organization that fights for victims’ rights, regrets the lack of access to information about what is going on in The Hague. “Outreach is underfunded,” she stated.

Klaus Rackwitz, the director of the Nuremberg Principles Academy, said that the ICC trials “must become more digestible” for the affected communities. He cited the example of the trial in the case of former president Laurent Gbagbo of Ivory Coast, where the judges recently allotted the prosecution 300 pages to explain what their case actually is. In national jurisdictions, indictments and judgments are usually much shorter.

In spite of all its limits and deficiencies that became apparent in the past 20 years, “the Rome Statute is not the wrong statute”, said David Donat Cattin, the head of Parliamentarians for Global Action, an NGO that encourages MPs worldwide to ratify the Rome Statute.   

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