ICC Perspectives and Experiences – A case for International Law & Emerging Legal Issues

INTRODUCTION

Created by the Rome Statute, which was adopted in 1998 and entered into force in 2002, the International Criminal Court (the “ICC” or the “Court”) is the world’s first permanent court, and an independent judicial institution, charged with carrying out investigations into and trials of individuals allegedly responsible for the most serious crimes of international concern, namely genocide, crime against humanity and war crimes.

Today the ICC is a fully functional court and is engaged in a growing number of cases. It is currently seized of seven situations. The situations in Uganda, the Democratic Republic of Congo and the Central African Republic were each referred to the Court by those States which are themselves parties to the Rome Statute. Furthermore, the situation in Darfur, the Sudan, was referred by the United Nations Security Council. Pre-Trial Chamber II authorised the Prosecutor to conduct an investigation into the situation in Kenya in relation to alleged crimes against humanity committed between 1 June 2005 and 26 November 2009. This year, the United Nations Security Council referred the situation in Libya to the Court. The Office of the Prosecutor recently requested authorisation to open an investigation in the situation in Côte d’Ivoire from Pre-Trial Chamber III. The Chamber’s decision is awaited in the near future. The Office of the Prosecutor is also conducting preliminary examinations in various situations, including Afghanistan, Colombia, Georgia, Guinea and Palestine.

These are the early days of the Court’s existence. The Court is a young institution, in the process of defining its role and developing its jurisprudence and practices whilst being faced with this growing activity. This a challenging phase.

I propose to first brief you on the latest developments at the Court in the new situations, namely Libya and Côte d’Ivoire. I will then turn to the emerging issues the Court is faced with in these and other cases, including the peace and justice debate and the importance of international cooperation, before addressing a crucial issue for the Court, that of victim participation and reparations. Finally, I will address one of the common misconceptions about the Court, which alleges that the ICC is a western Court targeting the African continent.

[TRIGGERING MECHANISMS]

By way of background, I would like to explain how investigations are opened at the ICC.

• First, a State Party may refer a situation to the Prosecutor. This was the case of the Democratic Republic of the Congo, Uganda and the Central African Republic.

• Second, the Security Council may refer a situation to the Prosecutor as in the case of the situations in Darfur and Libya. For these Security Council referrals, the Prosecutor independently analyses the information received and determines whether or not there is a basis to begin an investigation;

• Third, the Prosecutor may begin an investigation on his own initiative, proprio motu. So far the Prosecutor has made two applications to Pre-Trial Chambers to open investigations on his own initiative, namely for the situations in Kenya and Côte d’Ivoire. The Prosecutor may only proceed with these proprio motu investigations if the Pre-Trial Chamber concludes there is a reasonable basis to begin an investigation and authorizes the Prosecutor to do so. This is one of the important checks and balances that were inserted into the Rome Statute to ensure that the judges have control over the process.

[BRIEFING ON THE NEW SITUATIONS]

The International Criminal Court is currently active on two new situations.

1. Libya

Anti-government protests began in Libya on 15 February 2011, following widespread protests in Tunisia and Egypt. Demonstrations were met with violent opposition of the Libyan regime. The situation rapidly escalated into a civil war.

On 26 February 2011, the United Nations Security Council, acting under Chapter VII of the Charter of the United Nations, unanimously adopted Resolution 1970 referring the situation in Libya to the Prosecutor of the Court. This referral can be viewed as a sign of the growing trust which the international community places in the Court.

The Prosecutor opened an investigation and filed an application under Article 58 of the Statute requesting the issuance of warrants of arrest for Muammar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi for their alleged criminal responsibility for the commission of crimes against humanity of murder and persecution of civilians from 15 February 2011 onwards throughout Libya.

On 27 June 2011, Pre-Trial Chamber I granted the application and issued arrest warrants. It considered that there are reasonable grounds to believe that, under Article 25(3) (a) of the Rome Statute, Muammar Gaddafi and Saif Al-Islam Gaddafi are criminally responsible as indirect co-perpetrators and Abdullah Al-Senussi is criminally responsible as indirect perpetrator, for two counts of crimes against humanity, namely, murder, within the meaning of Article 7(1) (a) of the Statute; and persecution, within the meaning of Article 7(1) (h) of the Statute.

I will now discuss the situation in Côte d’Ivoire.

2. Côte d’Ivoire

Following the November 2010 presidential elections in Côte d’Ivoire, the two front runners, Laurent Gbagbo and Alassane Ouattara each declared themselves president of Côte d’Ivoire. The electoral crisis rapidly deteriorated and led to large-scale violence in the country.

The situation in Côte d’Ivoire had been under preliminary examination by the Office of the Prosecutor since 2003. Although the country is not a state party to the Rome Statute, the then President Gbagbo accepted jurisdiction of the Court by a declaration, in accordance with Article 12(3) of the Rome Statute. The now recognised President Alassane Ouattara confirmed his acceptance of the Court’s jurisdiction by letter.

After conducting a preliminary examination, the Prosecutor requested an authorisation from Pre-Trial Chamber III under Article 15 of the Rome Statute to open an investigation in the situation in Côte d’Ivoire since 28 November 2010. It considered that there are reasonable basis to believe that crimes against humanity and war crimes were committed and that the Court has jurisdiction over these crimes. The Pre-Trial Chamber is currently considering the situation and will make a decision in due course.

In both these new, but also in other situations, the Court is faced with important issues which influence its work.

[THE PEACE AND JUSTICE DEBATE]

First, when carrying out its activities of investigating and trying those allegedly responsible for international crimes, the Court is confronted with the so-called ‘peace and justice debate’.

This is particularly true when the Court is active in the context of ongoing conflicts as it is the case in Darfur, Sudan and Libya. Regarding the situation in Libya, some, including the African Union, have criticised the issuance of arrest warrants against Muammar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi, stating that the action of the Court undermines the peace efforts.

Indeed, in societies torn by or emerging from armed conflict, there can be tension between the need to bring about and sustain peace and the need to achieve justice and put an end to impunity. However, the relationship between peace and justice is complex and those two needs should not be seen as conflicting.

In September 2009, the Secretary-General of the United Nations Ban Ki-Moon described the issue in the following terms:

“As we fight against impunity and seek to strengthen accountability, the relationship between peace and justice has been a frequent point of contention. After a decade-long debate on how to “reconcile” peace and justice or how to “sequence” them, the debate is no longer between peace and justice but what kind of peace”.

The preamble of the Rome Statute recognises the link between peace and justice, stating that “grave crimes threaten the peace, security, and well-being of the world” and affirming that States Parties are “determined to put an end to impunity for the perpetrators of these crimes and thus contribute to the prevention of such crimes”.

Since the adoption of the Rome Statute, there has been increasing recognition of this important link between peace and justice. There is now a growing consensus that peace and justice are complementary requirements as there cannot be sustainable peace without justice and justice cannot be pursued without peace.

This is the goal that international criminal justice and the ICC in particular are striving to achieve: fight impunity and provide redress to the victim.

I would like to turn now to the issue of cooperation

[THE IMPORTANCE OF INTERNATIONAL COOPERATION]

In all its activities, from the opening of an investigation to the enforcement of a sentence, the Court relies on international cooperation, especially from states parties to the Rome Statute.

Unlike national courts, the ICC does not have enforcement powers. That is why the cooperation of states is required for activities including investigations, arrest and surrender of suspects, asset tracking and freezing, victim and witness protection, provisional release, enforcement of sentences and execution of the Court’s decision and orders. Cooperation is thus crucial for the effective functioning of the Court.

Pursuant to Article 86 of the Rome Statute, States Parties are obliged to cooperate fully with the Court in its investigations and prosecutions.

The Court may also receive cooperation from non-States Parties, and may enter into arrangements or agreements to provide cooperation pursuant to Article 87 (5) of the Rome Statute.

Moreover, states are under an obligation to enforce decisions of the Court in case of a referral by the Security Council based on Chapter VII of the Charter of the United Nations. In the situation in Libya, Security Council Resolution 1973 provides that Libyan authorities “shall cooperate fully with” the ICC. Therefore, the obligation to enforce the arrest warrants lies primarily with the Libyan regime.

International organisations also provide important support to the Court. Foremost among these is the United Nations. A Negotiated Relationship Agreement between the International Criminal Court and the United Nations was concluded in October 2004. This agreement provides for institutional relations, cooperation and judicial assistance between the Court and the United Nations while reaffirming the independence of the Court.

The issue of enforcement capabilities of the Court is a pressing problem because in case of absence of cooperation, the effectiveness of the Court will be undermined. Inability to apprehend suspects may prevent the Court from fulfilling its mandate.

In my capacity as a Presiding Judge in the Benda/Jerbo case, the Darfur situation, I had the opportunity to measure the importance of cooperation for the work of the Court. In that case, neither the prosecution nor the defence have been allowed by the Sudanese authorities to conduct investigations in Darfur. This is a clear example of lack of cooperation with the Court.

Without cooperation, it is not easy to predict when a suspect will be arrested. Here I give two examples: Ratko Mladic, who was indicted by the ICTY in 1995 for genocide, crimes against humanity and war crimes was arrested in May this year; the arrest warrant against Charles Taylor, former leader of Liberia, was issued in June 2003; he was arrested in March 2006.

From these examples we can see that enforcing arrest warrants may take time. The Court is making significant efforts to improve cooperation.

[VICTIM PARTICIPATION]

I would like to turn to an important issue at the Court, that of victim participation.

One of the innovative features of the ICC is that victims are granted procedural rights entitling them to participate in proceedings and to seek reparations. This constitutes a departure from the ad hoc international criminal tribunals where victims were merely considered as witnesses called to testify for the Prosecution in a case. At the ICC, they are entitled to express their views, either in person through legal representation and to claim compensation.

1. The participatory framework for victims

Definition

Rule 85 defines victims as follows:

“For the purposes of the Statute and the Rules of Procedure and Evidence:

(a) “Victims” mean natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court;

(b) “Victims” may include organizations or institutions that have sustained a direct harm to any of their property which is dedicated to religion, education, art or science or charitable purposes and to their historic monuments, hospitals and other places and objects for humanitarian purposes”.

It is only the judges who can either grant or not grant victim status.

Role

The key provision regarding the right of victims to participate in proceedings is contained in Article 68 (3) of the Rome Statute. This provision establishes a general right of victims whose personal interests are affected to present their “views and concerns” to the Court and have them “considered” at appropriate stage of the proceedings.

The Appeals Chamber Judgement of 11 July 2008 in the Lubanga case clarified the scope of participation of victims in trial proceedings: it held that the harm alleged by the victim and the concept of personal interests under Article 68 (3) of the Rome Statute must be linked with the charges confirmed against the accused. This means that only the victims of the crimes for which the accused is charged have the right to participate.

The following are the important provisions on victim participation:

• Under Article 15, victims are permitted to make representations to the Court when the Prosecutor seeks authorisation to undertake an investigation on his own initiative.

• Pursuant to Rule 92 (2), victims are also entitled to receive notice in the event that such an investigation comes to an end.

• Under Article 19, victims may submit observations to the Court in the context of a motion challenging the jurisdiction of the Court or the admissibility of a case.

• Under Article 75 victims may be compensated for the harm suffered.

• Article 68 (3) and Rules 89 to 93 set out the process for an applicant to be granted victim status and the participatory rights of the victims. For instance, they may make observations and question witnesses.

2. Challenges

The participation of victims in the proceedings at the ICC has brought about procedural and practical challenges. Several issues have been identified:

1. Ensuring the efficiency of the proceedings and avoiding delays

Under rule 96, the Registrar has an obligation “to give publicity, as widely as possible and by all possible means, to the reparation proceedings before the Court”.

This has led to a great number of persons applying for victim status.

In the Bemba case, for example, about 2000 applications were received. About 1600 victims have already been granted participatory rights and hundreds of applications are still to be reviewed.

The process of reviewing applications may be time-consuming for the Chamber and it is important that the participation of victims does not delay the proceedings. Indeed, in case of delays, victim participation might conflict with the right of the accused to an expeditious trial.

To avoid this, the judges direct the participation of victims in the proceedings. Pursuant to Article 68 (3) of the Rome Statute, they ensure that victims present their views and concerns “in a manner not prejudicial to or inconsistent with the rights of the accused”.

Furthermore, in order for victims to participate in an effective manner, the Rome Statute allows for common legal representation, under rule 90 (2) (3) (4) and regulations 79 and 80 of the Regulations of the Court. For instance, in the Bemba case, two legal representatives represent about 700 and 600 victims respectively and convey their views and concerns to the Court in an effective manner.

In the Benda/Jerbo case, there are fewer victims but 6 legal representatives. To avoid logistical and procedural difficulties, the Registry will have to make a decision in order to narrow down the number of common legal representatives.

The judges thus have to strike a balance between victim participation on the one hand and effectiveness of the proceedings as well as the rights of the accused on the other.

2. Victims should not become a “second prosecutor”

This concern has been expressed by some defence teams in the Lubanga case, for example. In that case, the legal representatives of victims requested the modification of the legal characterisation of facts (under regulation 55 of the Regulations of the Court) in order to include new charges (crimes of sexual slavery and inhuman or cruel treatment). However, amending charges is a power exclusively in the hands of the Prosecution.

It is important to note that victims are participants, not parties to the proceedings. The judges remain in control of the extent of the participatory rights to be granted to the victims.

3. Risk of raising high expectations for reparations

As already pointed out, the right of victims to participate in the proceedings is accompanied by a right to seek reparation, in case the accused is convicted. This gives rise to high expectations, all of which might not be fulfilled. This entails a risk of disillusionment of the victims.

4. Reliability of intermediaries

Finally, I would like to briefly point out a last issue, that of the reliability of intermediaries. The Court has recourse to intermediaries to facilitate its activities in the field. In particular, intermediaries are used to facilitate contacts with victims (as they know the local situation, the local languages …). However, this may be problematic since it has emerged that intermediaries may not be reliable.

For instance, in the Bemba case, some intermediaries encouraged victims to exaggerate the damage they suffered so that they would receive higher compensation.

While the participation of victims in the proceedings at the ICC is a welcome development, it is important to strike a balance between the legitimate interests of victims and the fairness and efficiency of the proceedings.

[MISCONCEPTIONS]

Finally, I would like to conclude by addressing one of the misconceptions about the ICC.

One criticism so often heard about the Court is that the ICC is a tool of Western States targeting African countries. This is unfounded.

The ICC belongs to its States Parties, among which the Western States are in the minority. The Judges and the Prosecutor are elected by the Assembly of States Parties, in which every State has an equal vote. The richest States provide the bulk of the funding for the ICC on the same principles as the UN budget contributions are assessed, but this does not give them more decision-making power in the ICC. It is a global court with participation from all the continents of the world. The geographical and cultural diversity of the ICC, as well as its gender balance, are in fact reflected not only in the totality of the Court’s Judges but practically in every bench of the ICC consisting of three or five Judges.

Second, some claim that the ICC only targets African countries. This assertion is groundless. Of the seven situations before the ICC, three were referred to the ICC by the countries themselves, two were referred to the ICC by the Security Council and only two were initiated by the Prosecutor himself. Furthermore, the Office of the Prosecutor is conducting preliminary examinations in a number of countries, including Afghanistan, Georgia, Colombia and Palestine.

It is also important to note that the ICC is a court of last resort, it will only investigate or prosecute a case if the State which has jurisdiction over it is unwilling or unable genuinely to carry out the investigation or prosecution (Article 17 of the Rome Statute). States are therefore encouraged to develop the legislations and structures to ensure that the most serious crimes of concern to the international community as a whole do not go unpunished.

Finally, I would like to stress that many Africans support the work of the ICC. I would like to recall that the situation in Libya was referred to the Court unanimously by the members of the Security Council, including African countries such as South Africa, Gabon and Nigeria.

CONCLUSION

The ICC is a young institution. It is currently in the process of building its practices and its jurisprudence. This makes the work there as a judge both fascinating and challenging.

As many as 116 countries are States Parties to the Rome Statute. The growing ICC family represents a new community of values, determined to ensure respect for the rule of law and human dignity and to bring sustainable peace.

Thank you for your attention.

H. E. Judge Joyce Aluoch

International Criminal Court