IJCentral: International Justice Central

Time is nearly up for the world’s first ever Chief Prosecutor of the International Criminal Court (ICC). Human Rights Watch has published a report about his period in office, entitled “Unfinished Business”. International Justice Tribune talked with its author, Liz Evenson.

Published on 11 October 2011. By Bram Posthumus, Brussels

A cursory glance at the internet reveals all manner of labels attached to the ICC and its most visible official, Chief Prosecutor Luis Moreno-Ocampo. At one end it is an “arm of Western imperialism”, at the other nothing more than a “paper tiger”. Criticism has been particularly virulent against the perceived bias of the ICC: why have, so far at least, all the defendants come from Africa?
ICC basics
Liz Evenson from Human Rights Watch summarizes the role of the court as “the world’s first permanent court, set up to try crimes of genocide, war crimes, crimes against humanity; the world’s worst crimes.’

There are three ways in which a case can come before the ICC. First: referral by a state that has ratified the document that created the ICC, the Statute of Rome. Second: an order to investigate by the United Nations Security Council. Third: the personal initiative of the ICC Chief Prosecutor. There are currently seven cases before the court; five of those are government referrals: three in the DR Congo, one in the Central African Republic and one in Uganda. Another one (Darfur) is a Security Council decision and one (Kenya) is the result of the Chief Prosecutor’s own will.

These constitute the subject matter of Evenson’s report.

The Chief Prosecutor and his office have very specific roles, says Evenson: ‘To bring investigations and prosecutions and to decide which countries to investigate, who to investigate and for what - and see that through to completion. He must also protect victims and witnesses but he must seek the truth. That is: look for evidence that incriminates an individual – but also evidence that exonerates an individual, in the interest of a fair trial.’

There is one extra, intermediate step, known as the ‘confirmation of charges hearing’. Here, the ICC judges will hear the evidence and then decide to let a case go ahead or throw it out.

The Face of the ICC

It is easy to see how and why the current Chief Prosecutor became the face of the ICC. His role is central to the whole process. Add to this Mr Moreno-Ocampo’s drive, flamboyant personality and an interesting legal career in his native Argentina and you have the ingredients for a major road show. The report, however, deals less with the character and more with the judicial nuts and bolts.

Impartiality and independence are the two key principles that should guide the work of the Prosecutor’s Office, while at the same time an entirely new international legal institution is created. Moreno-Ocampo’s job has been difficult. But how has he performed? For Liz Evenson the record is mixed.

‘We can take the case of the DR Congo. The justice needs there are tremendous. The Chief Prosecutor has conducted three investigations, two in the Ituri region and one in the Kivus. In Ituri, the leaders of two rival militias have been investigated. But our research indicates that those militias were supported by governments in the region. Rwanda, Uganda and officials in Kinshasa were involved. So we have urged the Chief Prosecutor to go up the chain of command to see if those who supported these militias also share criminal responsibility.’ The implication is clear: not doing so will mean that full justice is not delivered.

In the Ugandan case, the ICC’s impartiality was compromised when Moreno-Ocampo and the Ugandan president Yoweri Museveni gave a joint press conference in 2004, announcing the opening of investigations into Joseph Kony, the leader of the notorious Lord’s Resistance Army. The government’s own forces also committed abuses in this conflict and so, Evenson concludes: ‘It did undermine the sense of independence and impartiality – at least at the outset of the investigation. There may be legal reasons why only one side of the conflict has been investigated but the Chief Prosecutor must then explain these clearly.’

Weakness

The Uganda case exposes a crucial weakness of the ICC: its dependence on states parties to deliver alleged criminals. If the government does not want to do it, it simply does not happen. Conversely, governments may think that hauling citizens before the ICC can be a convenient way of getting rid of people they do not like.

The problem becomes even more glaring when we consider non-states parties like Sudan. Since July 14th 2008, Sudan has been ruled by an indicted war crimes suspect. And on March 9th 2009 the ICC issued a warrant for his arrest. This may restrict some of his travel plans but he is still the relatively untouchable President of Sudan. ‘It is a continuing battle to reinforce the importance of the arrest warrants,’ says Evenson. ‘Even if they cannot be executed tomorrow, justice has a very long memory.’ Ask Mssrs Mladic and Karadzic, now before the Yugoslavia Tribunal, a precursor to the ICC.

The Kenya case has brought more balance to the ICC prosecution’s handling of cases. Six alleged instigators of widespread post electoral violence are being investigated – the men coming from both main parties in the conflict and their hearings taking place simultaneously in The Hague. These are positive steps according to Human Rights Watch.

Powerful interests – an Africa bias?

In the end, arrests will come about because of government compliance or international action. But the question must be asked whether the ICC actually does its work free from political interference from the world’s heavyweights. Uganda is a friend of the USA; Sudan is a friend of China – and so on. Liz Evenson puts it subtly: ‘It’s still an unfortunate reality that those who are allied with powerful interests are more likely to escape justice.’

There is a perception that the court is picking on African countries. This is a moot point since African governments were important actors in creating the ICC, especially following the Rwanda genocide. Liz Evenson thinks that the concentration of attention on Africa is problematic – ‘but then the answer cannot be less justice for those who do fall within the ICC’s reach. Yes, all the cases currently being investigated are in Africa but that does not take away from the seriousness of those crimes.’

Moreno-Ocampo suffers from a degree of criticism but Evenson praises his passion and energy in what has been a challenging job. He has succeeded in putting the ICC on the map.

Next chapter

What does Human Rights Watch look for in the next Chef Prosecutor? Less flamboyance? Fundraising skills perhaps? The Office of the Prosecutor has a huge caseload and limited means. Liz Evenson sums it up: ‘The next person must have demonstrated skills in investigation and prosecution. Good office management is also necessary, given the amount of work. And the next person must also understand and be committed to communicating the work of the court. Names? Sorry, no suggestions. But these wishes have been communicated to the ICC.’

None of this implies that the current office holder did not do these things but they must be done better and for this reason, ‘We’ve made a choice as an international community – for justice. We no longer want leaders who commit crimes against their own people or against people of other countries being entitled to retire in this golden life of exile. Eventually we want to build a system that can deter these crimes’, says Evenson.

Read original article on Radio Netherlands Worldwide (RNW) here.