The International Criminal Court, which celebrates its 10th anniversary this Sunday, is the world's only permanent tribunal to try cases of genocide, war crimes and crimes against humanity.
For many dictators and generals around the world, the ICC represents a real threat to their regimes – not a military one, but one of due process and the pursuit of justice.
"The most important thing is that it exists at all," said Hans-Peter Kaul, a German judge at the International Criminal Court in The Hague during the early years of the Dutch-based court. Justice Kaul was one of the main initiators of the court, which was established when the so-called Rome Statute went into effect on July 1, 2002. The ICC then began taking on cases in 2003.
"The important thing is that it exists at all," says Kaul
Unlike the International Criminal Tribunal for the Former Yugoslavia (ICTY), or the special court for Rwanda, the ICC was not formed on the basis of a UN Security Council resolution, but by the above treaty, which now has 121 signatory countries.
The Rome Statute was a clear signal that no individual suspected of severe crimes was safe from prosecution. The ICC, however, can only prosecute people and not states, or governments.
Between power politics and human rights
Because accused leaders will generally do whatever they can to hide responsibility, the investigative aspect of the work is one of the biggest challenges for the ICC. "The work inevitably takes place in the conflicting context of brutal power politics on the one side and human rights on the other," noted Kaul.
The 'conflicting contexts' have accompanied the ICC from the very beginning. The United States was, and is, one of the major opponents of the court. By signing bilateral agreements with signatories of the Rome Statute, Washington worked to ensure that no US citizens could be brought before the court. Critics accused the Bush administration of intentionally trying to undermine the ICC by working to convince other countries not to sign up to it.
Long time coming
As of July 1, the ICC has 121 state parties, including all of South America, nearly all of Europe and more than half the countries of Africa. A further 32 countries, including Russia, have signed but not ratified the Rome Statute. The court's president is South Korean Sang-Hyun Song and its chief prosecutor is Gambia's Fatou Bensouda.
A country that has signed up to the treaty may refer cases to the prosecutor for investigation, as in the case of warlord Thomas Lubanga, referred by the Democratic Republic of Congo in 2004.
Cases may also be referred by the United Nations Security Council, as with the late Libyan leader Moammar Gadhafi last year, or the prosecutor can initiate his own investigations with permission from the judges, as with Kenya's 2007-08 post-election violence.
The court currently has about 1,000 employees from more than 70 countries. Besides the DR Congo, investigations have been opened in six other countries, all African: Ivory Coast, Kenya, Libya, Sudan, Uganda and the Central African Republic. The court has issued arrest warrants for 20 individuals, notably Gadhafi's son, Saif al-Islam, and Sudan's President Omar al-Bashir. Apart from Lubanga, four others, including former Ivorian president Laurent Gbagbo, are in ICC custody, with 11 other suspects still at large. The lack of international support for the arrest of suspects is one of the court's biggest problems.
Pioneering work for the victims
The main proceedings against rebel warlord Lubanga, which began in 2009, were also a precedent for the court. "For the first time, victims played a special role in the criminal proceedings. It was a special situation. The court, in many appellant proceedings, first had to decide what rights the victims had," notes Jens Dieckmann, an ICC attorney for the victims. The rights of the defense also had to be clarified in detail in their pursuit of exonerating evidence for the accused.
"The ICTY did a lot of pioneering work," explains Justice Kaul, but adds that there were a lot of questionable practices, such as expanding charges in an indictment. "In the end, it was often the case that the accused, who had been charged on 200 separate counts, was ultimately only convicted on two or three verifiable charges," says Kaul.
Effectiveness and efficiency matters
This is why Dieckmann, the victim attorney, thinks that the ICC can be a more effective deterrent and have better chances of achieving convictions by limiting the scope of its cases. "Being a deterrent means that you demonstrate that proceedings based on the rule of law are possible and that they lead to convictions. On the other hand, of course, the rule of law under certain circumstances can also lead to acquittals," Dieckmann emphasizes.
Due to his alleged inefficiency, former ICC chief prosecutor Luis Moreno-Ocampo frequently found himself in the line of fire. He was accused of seeking headlines and of opening too many investigations and proceedings, say insiders in The Hague. The Assembly of State Parties – the signatories to the Rome Statute – made clear in late 2011 that the court was a successful project but that it was also a cost factor. At the end of his term, Ocampo was replaced by Bensouda.
On March 13 of this year, the ICC handed down its first verdict. It found former Congolese rebel leader Thomas Lubanga guilty of forcibly recruiting child soldiers. He faces a possible sentence of life imprisonment.
Completely unanswered so far is the question of what victims can expect when the verdict is final? When the condemned are in no position to pay reparations, there is an ICC trust fund available. "This will be a litmus test for this system," says Dieckmann, who currently represents victims from six different African countries. Expectations are very high, and in some cases very specific. A widow of one murdered soldier lost everything and is essentially destitute. "Her biggest wish is that her children can go to school and live a life of dignity," says Dieckmann.
The victims are hoping for more than compensation. They want the historical truth to be brought to light by the ICC. "That would make the rest of their lives easier," noted Hans-Peter Kaul, adding: "It is a great help to them when their suffering is recognized and not forgotten."
Author: Ulrike Mast-Kirchning / gb
Editor: Charlotte Collins