Analysis: Mixed report card for ICC

KAMPALA, 10 June 2010 (IRIN) - The International Criminal Court (ICC) is beginning to deliver justice to survivors of genocide, war crimes and crimes against humanity, but the world has yet to fully commit to ending impunity for the gravest crimes, according to participants at a conference reviewing the court's legal foundation.

"The Rome Statute has been described as the greatest advance in international law since the UN Charter," Oby Nwankwo, executive director of Nigeria's Civil Resource Development and Documentation Centre, said in Uganda, where the 31 May-11 June conference is taking place. "While the ICC has its shortcomings, it provides a backstop to impunity."

Established by the Statute on 1 July 2002, the ICC now has 111 state parties, 18 judges, and field offices in the Democratic Republic of Congo (DRC), Uganda, Central African Republic (CAR) and Chad. It is conducting investigations in the DRC, Uganda, CAR, Kenya and Sudan, and has issued 13 arrest warrants for eight cases.

But critics say the Court has taken too long to conclude cases and is too focused on African countries. Describing the ICC as "European-driven, African-focused and irretrievably flawed", pro-Khartoum writer and publicist David Hoile said its "claims to international jurisdiction and judicial independence are institutionally flawed and the Court's approach has been marred by blatant double standards and serious judicial irregularities".

The Pretoria-based Institute for Security Studies cited the uneven and imbalanced landscape of global politics as a factor. "For Africa, a key concern is the relationship between the UN Security Council and the ICC, specifically the Council's powers of referral and deferral," a summary of an ISS symposium on "The ICC that Africa wants" stated.

"The skewed international power of the UNSC creates an environment in which it is more likely that action will be taken against accused from weaker states," it added.

An analyst, who requested anonymity, said this view had been amplified by the 2008 high-profile indictment of Sudanese President Omar el-Bashir. "That indictment has driven a wedge between supporters and opponents of the Court," she told IRIN. "It has led to all manner of accusations, clouded the ICC's record and continues to elicit controversy."

But asked how he could effect an arrest against Bashir, Prosecutor Louis Moreno Ocampo was bullish. "Arresting Bashir is a matter of time; the Court is permanent, so it can wait," he told reporters. "The current challenges faced by the Rome Statute are not a product of failure, they are a product of success," he said. "The Court is today fully operational, executing its judicial mandate and far exceeding expectations."

Asked if he had a plan B, Ocampo said: "The states decide the law, I only apply it."

His upbeat assessment was shared by ICC President Judge Sang-Hyun Song. "The system of international justice has developed faster than expected," he said. "The threat of prosecution at the ICC has already deterred some criminals - the [Kampala] conference will review ways to increase domestic capacity."

At the conference, UN Secretary-General Ban Ki-moon was asked if the ICC was toothless. He responded: "We are witnessing the birth of a new age of accountability. We hope to take stock of the Court's progress and strengthen it for the future."

He hailed the presence in Kampala of the US, which was participating as a non-state party for the first time. "I understand the US is very seriously reviewing its decisions," he added.

Kofi Annan, the former UN Secretary-General, defended the Court. "When I meet Africans from all walks of life, they demand justice: from their own courts if possible, from international courts if no credible alternative exists," he said. "The ICC does not supplant the authority of national courts. Rather, it is a court of last resort, governed by the principle of complementarity."

Taking stock

The Kampala conference is characterised by lively debates on the impact of the Rome Statute on survivors and affected communities; complementarity, cooperation, peace and justice; and the crime of aggression (although there is no agreement on its definition).

Various speakers called for more support for the Court. "Words are cheap, it is in providing the court with support that the rubber meets the road," Richard Dicker, international justice director at Human Rights Watch, said. "State parties need to do a great deal better - unless governments actually make arrests, the ICC cannot deliver justice to victims of mass atrocities."

Nobel Laureate Wangari Maathai struck a more cautious tone. "At community level, there are a lot of expectations about the ICC, but it can only do so much," she said.

Civil society organizations called on states that have signed the Rome Statute to enact comprehensive implementing legislation. Only five African countries have done so: Burkina Faso, CAR, Kenya, Senegal and South Africa. "Such legislation makes genocide, war crimes and crimes against humanity crimes under domestic law and provides cooperation with the ICC," they said in a statement.

Compensation calls

They also called for the promotion of victims' rights, including compensation. "Hundreds of victims are already participating in situations and cases before the ICC - [but] lack of execution of arrest warrants, lengthy proceedings and limited cases are only a few of the areas where the victims have expressed disappointment and frustration with the ICC," they noted. 

Survivors attending the meeting urged the Court to ensure adequate compensation. "When I came back, I could not find my parents and I am told they were all killed during the war," said David Etilu, 16, who was abducted at nine by the Ugandan Lord's Resistance Army (LRA) and taken to Garamba, northeastern DRC.

"I am alone, without a sister or brother. I have nowhere to stay. My expectation of this conference is improved life, where I will get what I need in life," he told IRIN at the conference. "ICC and the government should find the means to educate me, how I can be accommodated and other things that a human being requires in life. Those are all that I need."

But Kristin Kalla, acting executive director of the Trust Fund for Victims, said resources were limited. The Fund has taken up projects in northern Uganda and the DRC worth four million Euros (US$4.8 million).

"Funding is still limited to take up every person [who] qualifies and we are appealing to member states and other donors and the private sector to come in and help because this is the moment to have something to show to the victims," she said.

Ocampo echoed calls for compensation. "The victims do not have to wait for convictions to be assisted. This is something we are discussing - how to continue the process and assist victims at the same time."

Ahead of the opening ceremony, survivors of the LRA conflict in northern Uganda said the court was selective in the application of justice. The survivors, some disabled, others former displaced persons and abductees, child mothers and those who lost relatives, met ICC President Song in Gulu district on 29 May. They called on the ICC to investigate Ugandan soldiers who may have committed crimes during the conflict.

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