ISS Seminar Report: The International Criminal Court: Justice Slowly but Surely?

Date: 2012-06-21

Presenters

• Professor Jan Wouters, Catholic University of Leuven, Belgium
  
• Professor Vincent Nmehielle, University of the Witwatersrand, South Africa

Chair

• Anton du Plessis, Head of the Transnational Threats & International Crime Division, ISS, Pretoria

1 July 2012 marked the 10^th anniversary of the International Criminal Court (ICC). This important milestone provides the ICC and those working in the international criminal justice field with the opportunity to evaluate the successes and failures of the past decade and plan for the future. In March 2012, the ICC concluded its first case against Congolese rebel leader Thomas Lubanga Dyilo. On 15 June 2012, the ICC swore in its second chief prosecutor, Fatou Bensouda of the Gambia. Already, Bensouda’s appointment has been heralded as a step towards resolving the tensions between the ICC and some African governments and stakeholders on the continent.

On 21 June 2012, the International Crime in Africa Programme (ICAP) at the ISS hosted a seminar to consider the progress of the ICC thus far. The first speaker, Professor Jan Wouters, gave a presentation on ‘the ICC prosecutor as a political operator’ in which he discussed two issues:

§  The exercise of prosecutorial discretion in selecting cases at the ICC and some of the problems the Office of the Prosecutor (OTP) has had in this regard under the direction of the outgoing prosecutor.

§  The criticisms of the ICC from Africa, in particular from the African Union (AU).

The presentation reflected on the situations that the OTP has investigated, some of the strategies employed in the case selection process, and the implications of the actions of the outgoing prosecutor. Wouters outlined the process of initiating a case before the ICC, which he characterised as having four distinct phases. First, the OTP receives communications on alleged instances where international crimes within the jurisdiction of the ICC have been committed. The OTP is tasked with deciding what action to take in respect of each communication. To reach its decision, the OTP filters the communications to exclude those crimes manifestly outside the ICC’s jurisdiction. Most communications are dismissed, and those that remain enter the second phase in which they become situations under analysis. As of November 2011, the OTP had received a total of 9 332 communications. It is worth noting that not all of these communications will be examined. All referrals by state parties to the Rome Statute and the UN Security Council bypass the first phase and immediately become a situation under analysis.

Phases two to four deal with the initiation of an investigation and are conducted consecutively as provided for in Article 53(1) of the Rome Statute. There are three distinct requirements. Phase three is an assessment of admissibility and comprises a complex series of determinations. First, the OTP must determine whether there is sufficient gravity to justify further action by the ICC. It should be noted that the notion of gravity is one of the amorphous terms contained in the Rome Statute. Due to limited oversight the determination of gravity has become a particularly useful tool for the prosecutor to justify many decisions. Second, the OTP has to make an assessment on the application of complementarity. To do this, the OTP must assess whether any action is being taken by the government concerned in response to the specific crimes that have been alleged to have occurred. To proceed, the OTP must be satisfied that national authorities are unwilling or unable to carry out genuine investigations and prosecutions.

The forth and final phase provides that an investigation can still be rejected, if it would not serve the interest of the justice, despite the gravity of the crimes and the interest of the victims. This provision also allows the prosecutor to make decisions without necessarily having to explain them.

To illustrate his views on the work of the ICC over the past ten years, Wouters discussed situations before the ICC. These situations arise from three self-referrals made by the Democratic Republic of Congo (DRC), Central African Republic and Uganda; two UN Security Council referrals of the situations in Darfur and Libya; and two proprio motu investigations into post-election violence in Kenya and Ivory Coast. 

Article 53 of the Rome Statute provides a legal framework for the selection of situations. However, according to Wouters the framework lends itself to potential abuse by the prosecutor. This is so because it provides undefined conditions for the prosecutor to act and this allows for a vast open and unregulated policy space. In light of this, most of the criticisms directed at the ICC relate to decisions made by the OTP within the rather unsupervised ‘no man’s land.’ According to Wouters, the criticisms are largely valid. He contends that it is essential that unbridled or almost unbridled power is not abused and that such authority must be exercised with caution. Thus, it is imperative that the OTP is guided by a set of clearly articulated principles that it adheres to. In the event that the OTP elects to deviate, it should be obliged to explain its decision. The OTP’s prosecutorial strategy articulates the office’s position on some of the relevant issues, but according to Wouters the former prosecutor was reluctant to commit himself to a broader framework and this has undermined the ICC’s legitimacy. There needs to be a balance between the freedoms that the prosecutor needs in order to properly conduct the work of the OTP and the accountability to state parties that are the chief stakeholders of the ICC.

The best way to explain what degree of regulation is necessary and appropriate without undue restrictions on the powers of the OTP is to consider the purpose of the discretion. Prosecutorial discretion is intended to permit the effective administration of justice rather than allowing for politics to enter the equation. Indeed, according to Wouters, some of the actions of the prosecutor can be construed as highly political. He recommends that there should be guidelines or principles to regulate the exercise of prosecutorial discretion to ensure that the OTP cannot be accused of engaging in political machinations.

Wouters then turned to a discussion of the issue of whether the ICC is targeting Africa as has been suggested by the AU and other African commentators. He noted that this is a widespread criticism of the ICC both in academia and in the public arena. The criticism from the AU is motivated by the organisation’s need for local or regional ownership over justice processes, and spurred on by an increasing sense of marginalisation and also the non-responsiveness of the UN Security Council to calls for the deferral of the proceedings against al-Bashir. 

According to Wouters, the phrase ‘targeting Africa’ is a loaded one, and to better understand and evaluate it, it is important to unpack a few of the misconceptions that surround it. Wouters argues that the view that the ICC is targeting Africa is not in and of itself a criticism. Rather, it is a statement of circumstances perceived or real. As a matter of appropriate application of prosecutorial discretion, there is nothing in the Rome Statute that prohibits the prosecutor from targeting certain regions as part of a broader strategy.  The criticisms are really about the broader prosecutorial strategy or perceived political consideration that the OTP has made. Wouters believes that focusing solely on African cases makes for a poor strategy that has soured the relationship between the ICC and stakeholders in Africa, particularly the AU.

The other critical issue to consider is the prosecutor’s argument that he is could not have targeted Africa because three of the situations before the ICC were referred by African states. Wouters contends that this argument is a half-truth because irrespective of the trigger, the OTP will almost always have been previously engaged in the state concerned. According to Wouters, self-referrals themselves have the potential to be politically charged and the incumbent government of the referring state can use the process as ‘a convenient way to do away with inconvenient rivals’. To some extent, according to Wouters, the prosecutor could be tacitly complicit in these motivations because he requires the cooperation of the state in question to assist the ICC in investigating the situation. 

According to Wouters, there is a far greater problem than the perception of bullying or targeting, and this is the valid perception that too often the ICC is too close to or reliant on a particular government or faction in a conflict. This is damaging to the impartiality of the OTP. In all three self-referrals, none of the people under investigation or accused of committing international crimes are affiliated with the incumbent government. This is extraordinary given that all parties to a conflict can be involved in committing crimes within the jurisdiction of the ICC.

In conclusion, Wouters emphasised two important achievements of the OTP:

• In exercising his proprio motu power to initiate investigations into post-election violence in Kenya and Ivory Coast, the prosecutor recognised the ICC’s potential role in breaking the cycle of post-election violence and deterring future offenders in both countries. The decision to focus prosecutorial attention on deterrence is commendable.
  
  
• The permanence of the ICC as an institution of global criminal justice and its significance in international law. Wouters posited that the ICC should not be condemned, as there is time for growth and with the new prosecutor in office the world should focus on a new era of the OTP.

The second speaker wasProfessor Vincent Nmehielle, whose presentation offered an African perspective on the work of the ICC over the past 10 years. Nmehielle began by explaining that he essentially agrees with the arguments presented by Wouters. Nmehielle explained that he would make his presentation from the point of view of someone who has worked in the field of international criminal justice, having served as the principal defender at the Special Court of Sierra Leone. This practical experience enables him to understand the nuances of the political pressures in international criminal justice. Charles Taylor’s case, Professor Nmehielle believes was a perfect example for the illustration of the political issues and interferences surrounding cases of this nature.

According to Nmehielle, the entry into force of the Rome Statute in 2002 was a milestone in the global fight against impunity. Africa as a region was an active and enthusiastic participant in the events leading up to the adoption of the Rome Statute in July 1998. Notably, African representatives were at the forefront of discussions to establish the ICC, which they saw as a possible deterrent to the vicious atrocities such as those that took place in Rwanda in 1994 and have continued across the continent since. In a show of support towards the ICC, the first country to ratify the Rome Statute was Senegal. To date, 33 African states are party to the Rome Statute.

Africa’s initial enthusiasm and support notwithstanding, recent events have dampened Africa’s support for the ICC. These events relate largely to the indictment of al-Bashir after the UN Security Council referred the situation in Darfur to the ICC. Nmehielle analysed the AU decisions on the ICC and suggested ways in which civil society and other stakeholders can engage with the AU on these issues. This is necessary, he believes, because the ICC remains the best mechanism for dealing with international crimes and Africa plays a pivotal role in ensuring the success of ICC. Specifically, Nmehielle questioned why the AU’s request for a UN Security Council deferral of the Darfur situation was not acted upon, explaining that the decision to ignore the request had prompted the AU to adopt a decision not to cooperate with the ICC in enforcing the ICC warrant for the arrest of al-Bashir.

The AU has further expressed its dissatisfaction at what it perceives to be the uneven international criminal justice landscape. At present, all the cases before the ICC are from Africa which has led to a sense within the AU that the ICC is targeting Africa and is acting as an instrument of powerful western states. The AU’s position places African states parties to the ICC in a difficult situation because they now need to balance their treaty obligations with their commitments to the AU.

None of the first situations before the ICC elicited controversy except for some inquiries on the good faith of the states that referred the cases to the ICC. Controversy only emerged some time after the UN Security Council referred the Darfur situation to the court. It is worth noting that prior to the ICC issuing its warrant for the arrest of al-Bashir, there were no notable objections to the indictment of any of the other accused people in the Darfur situation.

The 2009 arrest warrant against al-Bashir sparked the outcry by the AU, which was at the time engaged in a process to negotiate peace in Darfur. According to the AU, the indictment undermined these efforts to resolve the situation in Darfur, which is why it requested the deferral of the case against al-Bashir. Nmehielle pointed out that while article 16 of the Rome Statute specifies that no investigation or prosecution may be commenced for a period of 12 months once a deferral has been granted, the Statute does not state who can request a deferral or how they should go about it. 

The UN Security Council failed to respond to the deferral request placed before it by the AU. This has led to a backlash against the ICC in Africa, with the AU calling on its member states not to cooperate with the ICC in effecting the arrest of al-Bashir. The AU Peace and Security Council, acting on behalf of the AU, had originally requested the deferral from the UN Security Council. Bearing in mind the arrest and surrender of President Charles Taylor in Nigeria, Nmehielle posed the question as to whether the AU should have been given an opportunity to find a political solution to the situation in Darfur. He further asked whether seeking the prosecution of al-Bashir, as a sitting head of state, could have been sacrificed in the interests of a peaceful settlement.

Later in 2009, the AU assembled African ICC member states, to discuss the work of the ICC. The meeting supported the AU’s decision to request a deferral of the al-Bashir case. The most drastic action taken by the AU remains the call for non-cooperation. The most recent fallout in respect of this call for non-cooperation arose when Malawi announced that it would cooperate with the ICC’s arrest warrant for al-Bashir, resulting in the AU summit being moved from there to Addis Ababa, Ethiopia.

Nmehielle then highlighted that the true victims of the political struggles between the ICC, the AU, and the UN Security Council are the victims of the crimes themselves [rather than the states and regional bodies concerned]. As a result of the ICC’s actions, international criminal justice it has become a regular feature in the AU sessions. Nmehielle explained that in preparation of the 2010 ICC Review Conference, the AU proposed: an amendment of article 16, transferring the right to defer cases to the UN General Assembly in cases where the UN Security Council fails to take action within six months of a request; and the retention of article 13, which allows the UN Security Council to refer cases. The AU’s recommendation to review article 16 begs the question as to who article 16 is meant for, who may use it and under which circumstances a deferral would be granted.

Nmehielle believes that it is important to interrogate the nature of the AU’s recommendations on the ICC. On the surface the AU’s decisions about the ICC may be characterized as purely political in nature, aimed at protecting one of their own, while allowing impunity to continue at the expense of victims. There is no doubt that international criminal justice is heavily embedded in the political arena because of the deep involvement of states and other political organs like the UN and the AU. The present situation helps to highlight the tension that exists between the enforcement of international law, between members of the international community and in particular the tensions between strong and weak nations. The AU is particularly concerned about the use of international criminal tribunals against African political actors. It is apparent that the AU is concerned about actions against sitting heads of state considering that the current negative situation only began with the indictment of al-Bashir.

International criminal justice is sometimes measured by the impact of accountability measures taken – such as the indictment of a sitting head of state – which has the ability to convey a strong desire to deal with impunity. However, this comes with the risk of high political fallout. To emphasise his point, Nmehielle noted the situation of former President Laurent Gbagbo of Ivory Coast, asking whether there has been any fallout for the AU in this case. He suggested that there has not, because Gbagbo declined the AU’s attempts to engage in a peace process, which could have prevented loss of life.  Consequently, the AU decided to support French action in Ivory Coast and the subsequent arrest of Gbagbo.  

From a political perspective, beginning from the deferral request in the Darfur situation, and by extension, the Kenyan and Libyan situation, international criminal justice should be seen as intersecting with the politics of peace, rather than supporting impunity and violence where genocide, crimes against humanity or war crimes are committed. The recent conviction and sentencing (to as many as 50 years) of President Charles Taylor by the Special Court for Sierra Leone, despite the fact that Taylor was found guilty only of aiding and abetting, raises the serious question of whether African leaders will in future fight to the death rather than surrender.  

Nmehielle also highlighted the dangers of the abuse of the principal of universal jurisdiction, and the apparent double standards it has operated under. He cited the case of Belgium being forced to change its international laws and applications – under pressure from the US government – as an example of political interference in international criminal law.

Nmehielle also explained the political factors that overlap with international criminal justice. He explained that due to its nature, international criminal justice should not be viewed in isolation of political factors. With regards to Africa and the ICC, he expressed a strong view that the ICC cannot operate without Africa. In his opinion, Africa has a key role to play in the work of the ICC. He noted that Africa has not denounced the ICC, but has rightly expressed concern over the manner in which the ICC has at times operated. Nmehielle believes the AU will always prioritise peace initiatives over justice, but this does not mean that it does not support justice.

Seminar Report compiled by Thobeka Mayekiso and Luyolo Ngcuka (edited by Ottilia Anna Maunganidze)