Birthday Bashing: Critics Take Shots at the ICC on Tenth Anniversary

          July 1, 2012 was a historic day for international humanitarians, marking the tenth anniversary of the International Criminal Court (ICC).  Established pursuant to the Rome Statute of 1998, the Court first opened its doors for business in 2002.  At its founding the world was split over whether its establishment was beneficial for the international community and whether it could be an effective judicial institution.  Many nations saw the ICC as a mechanism to bring to justice the world’s most notorious criminals who wreaked havoc with impunity.  Others saw the ICC as a threatening extension of global governance, raising the prospect that governments would use the Court as a political tool to coerce behavior or retaliate against unfriendly nations.

          At its inception, the United States was an important proponent of the Court, playing an instrumental role in the drafting of the Rome Statute.  When it came time to embrace the treaty, the United States led the charge to discredit the judicial body.   Ten years later, despite some positive movement in support of the Court by various nations, including the United States, the world remains polarized.  Critics have jumped on the tenth birthday of the Court as a prime opportunity to vocalize their dissent, offering a litany of problems which prevent the Court from being successful.  Unsurprisingly, the negative views expressed by opponents of the Court received the most attention in the media, leaving the public with a single, obscured view of the Court.  While there is no disputing the fact that the Court has, and will continue to face a number of challenges to its success, criticisms of the Court are exaggerated and generate backwards momentum away from the rule of law.

          This article will address two of the most common criticisms of the Court in order to balance the competing perspectives available to American citizens; its slow pace and resulting lack of success, as well as its perceived African bias.

Slow Justice is Better than No Justice

          The slow pace of the Court’s proceedings has frustrated many seeking instantaneous justice. Since its creation, the Court has finished only one trial, that being against Thomas Lubanga Dyilo earlier this year.  Concluding a single trial in a ten year period does not immediately spark optimism, but understanding the context of the situation is necessary before judgment can be passed upon the Court.

          To begin, a popular misconception should be cleared up.  Unlike many critics mistakenly observe, the Lubanga trial did not span the ten year existence of the Court.  While Court operations began July 1, 2002, Lubanga was not indicted until 2006.  While not the speedy trial that many Western observers are accustomed to, it is an important point none-the-less.  When one looks deeper into why the case took six years to be resolved, curious observers are provided with facts which illuminate the finer points of the justice system that critics seem to forget.

          On two separate occasions, the trial chambers suspended the proceedings on motions by defendant Lubanga to consider whether the prosecution had violated his rights to confrontation by failing to disclose all evidence in its possession.  In the first instance, the trial chamber found that exculpatory documents were being withheld by prosecutors and ordered the disclosure of that evidence.[1]  In the second instance, the trial chamber again acted pursuant to the defendant’s request for the release of documents concerning the identity of those who supplied information to the prosecution.[2]  Additional delays were granted to secure other rights and prevent the abuse of prosecutorial discretion.  Each delay was therefore an attempt to preserve the rights afforded to the defendant by the tribunal, something which even most critics would affirm is an important element of any legitimate judicial institution.  The level of procedural safeguards afforded to defendants is a critical measure of the due process protections provided by the Court.  While the prolonged detention of an alleged criminal challenges this concept of due process, establishing valuable precedent of best practices for the preservation of rights was a necessary consequence of the Court’s first trial.[3]  The duration of the proceedings in Lubanga is therefore illustrative of the great lengths the Court pursues to protect its guiding principles while adjudicating calls for justice.

          On March 14, 2012, the trial chamber unanimously found Thomas Lubanga guilty “of the war crimes of conscripting and enlisting children under the age of 15 and using them to participate actively in hostilities.”[4]  He was thereafter sentenced to 14 years in prison. While the Court faced many challenges throughout the trial, it successfully navigated the judicial waters to bring justice to the victims of Lubanga’s atrocious actions.  The verdict is an important milestone for the Court, and although sluggish to arrive, slow justice is better than no justice.

          The Lubanga trial has had other significant ramifications as well.  According to ICC Judge Sylvia Steiner, the Court has seen an exponential increase in the number of witnesses coming forward to assist subsequent prosecutions.  Unlike the Lubanga prosecution which relied primarily on evidence supplied by 93 victims to build its case, over 3000 witnesses have come forward in the case against Jean-Pierre Bemba Gombo. Such an influx suggests that Court is increasingly being seen as a legitimate institution by the most important observers, the victims.

          Putting the expectations of “fledgling organization[s]” like the ICC into perspective, Professor Michael Scharf of Case Western Reserve University School of Law stresses that in the context of international affairs, “[t]he expectations for an organization like [the ICC] historically have to be reasonable because they really don’t hit their stride until the second 10 years or even third 10 years.”[5]  The Court is currently preparing to wrap up two additional trials, Prosecutor v. Germain Katanga & Mathieu Ngudjolo Chui and Prosecutor v. Jean-Pierre Bemba Gombo, both of which will conclude ahead of the pace set by Lubanga.

“Africa is Taking Leadership in International Justice”[6] 

         Despite its significance, critics cite to the Lubanga case as evidence of another deficiency of the Court; its exclusive focus on Africa.  All seven proceedings currently underway at the ICC target situations occurring in Africa.  This alone however, does not reveal the nuances that many critics conveniently ignore.  Three of the situations before the Court are self-referrals, including: the Democratic Republic of the Congo, Uganda and the Central African Republic.  This means that these nations, acknowledging their lack of capacity to prosecute, voluntarily called upon the ICC to investigate criminals within their territory.  In a fourth situation, that of the Cote d’Ivoire, a country which is not a member to the Rome Statute, the government voluntarily accepted the jurisdiction of the Court and expressed its commitment to bring to justice those alleged to have committed crimes against humanity during the post-electoral violence which gripped the country from December 2010 until April 2011.[7]  It reaffirmed this commitment in October 2011.[8] 

          As the new ICC Chief Prosecutor Fatou Bensouda explains, the Court is “not in Africa by choice”.[9]  Instead, the African focus has resulted simply becauseAfrica is taking leadership in international justice,” stepping up law enforcement operations to capture and extradite criminals, and by working with the ICC to supplement domestic prosecution.[10]  Just last week, the West African nation of Mali called upon the ICC to investigate whether atrocities have been committed in the conflict currently engulfing the country. 

          To say that the ICC’s efforts solely target Africa again misses the mark. The Office of the Prosecutor is currently conducting preliminary examinations in a number of situations including: Afghanistan, Georgia, Guinea, Colombia, Honduras, Korea and Nigeria.[11]   Moreover, the Court’s investigative body does not give carte blanche to the Prosecutor or defer to all submissions of charges against alleged criminals.  In fact, it has rejected charges in a number of cases, finding that insufficient evidence exists for prosecution.[12]

          It should be remembered, that as a court of last resort, the ICC is mandated to compliment national justice systems, not override them.[13]  The Court may only investigate situations in nations over which it has jurisdiction and only intervenes in when a country is “unwilling or unable genuinely to carry out the investigation or prosecution” of alleged international criminals.[14]  The real source of failure within the international community comes from those nations which refuse to ratify the Rome Statute, limiting the Court’s potency. 121 nations are currently parties to the Rome Statute.  While substantial for a controversial treaty, the ICC remains a court open to the world, not the world’s court.

          The cancellation earlier this year of the African Union summit in Malawi after the government of Malawi threatened to arrest prospective attendee President of Sudan Omar al-Bashir, wanted by the ICC for committing war crimes and crimes against humanity, sent another strong signal to international criminals that their time is expiring and places to hide are dwindling.  Observers must bear in mind that the Court will always only be an international adjudicator of crimes, not a law enforcement institution.  Its greatest weakness is its reliance on individual nations to enforce the rule of law.  To strengthen the international body, nations should reflect inward and ask what more they can do to support the ICC, instead of directing criticism outward. While it is too early to glorify the ICC as a successful institution, it is folly to deny its numerous successes.  To be sure, “[i]mpunity was once the rule, now it’s the exception.”[15]


[1] International Criminal Court, Case Information Factsheet: Situation in Democratic Republic of the Congo – The Prosecutor v. Thomas Lubanga Dyilo, 2012 available at http://www.icc-cpi.int/iccdocs/PIDS/publications/LubangaENG.pdf

[2] Id.

[3] Sylvia Steiner, Remarks at American Society of International Law, The Future of the International Criminal Court: The Lubanga Judgment and Beyond, June 13, 2012, notes on file with author (noting that the Court took extreme caution when adjudicating the Lubanga case to preserve the rights of the defendant and set strong precedent for future cases).

[4] International Criminal Court, ICC First Verdict: Thomas Lubanga Guilty of Conscripting and Enlisting Children Under the Age of 15 and Using Them to Participate in Hostilities, Mar. 14, 2012 available at http://www.icc-cpi.int/NR/exeres/A70A5D27-18B4-4294-816F-BE68155242E0.htm.

[5] Mike Corder, International Criminal Court Turns 10, Associated Press, July 1, 2012.

[6] AlJazeera, Fatou Bensouda:’ Al-Bashir Will Be Arrested’, July 7, 2012 available at http://www.aljazeera.com/programmes/talktojazeera/2012/07/20127792042321699.html

[7] International Criminal Court, “Situations and Cases”, 2012 available at http://www.icc-cpi.int/Menus/ICC/Situations+and+Cases/

[8] Id.

[9] AlJazeera, supra note 6.

[10] Id.

[11] International Criminal Court, supra note 7.

[12] See International Criminal Court, “Situations and Cases: The Republic of Kenya – Mohammed Hussein Ali”, 2012 (case dismissed against Mohammed Hussein Ali); See also International Criminal Court, “Situations and Cases: The Republic of Kenya – Henry Kiprono Kosgey”, 2012 (case dismissed against Henry Kiprono Kosgey); See also International Criminal Court, “Situation and Cases”, 2012 ( “The Prosecutor v. Callixte Mbarushimana took place from 16 to 21 September 2011. On 16 December 2011, Pre-Trial Chamber I decided by Majority to decline to confirm the charges against Mr Mbarushimana”).

[13]Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9*, Art. 1, 1998.

[14] Id. at Art. 17(1)(a).

[15] José Zepeda, Moreno Ocampo: Impunity Was Once the Rule, Now it’s the Exception, June 26, Radio Netherlands Worldwide, 2013 available at http://www.rnw.nl/english/article/moreno-ocampo-impunity-was-once-rule-now-it%E2%80%99s-exception

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