by Tiina Intelmann on 03 Jul 2012 | Comments
Justice is blind but the international criminal court is surrounded by a fiercely political environment. It needs our support
As the international criminal court (ICC) celebrates its 10th anniversary, there is much discussion about how successful it has been in fulfilling its mission to end impunity for the most serious crimes of concern to the international community. To focus narrowly on what the court in The Hague has or has not done, however, would be to miss a large part of the story.
While the ICC is in many ways a traditional criminal court with judges, a prosecution and a defence, it differs from national courts in a number of aspects. Perhaps most important among these is its reliance on cooperation of states in almost everything it does. The ICC has no police to enforce its decisions. It relies on states to help in investigations, to arrest persons against whom arrest warrants have been issued, and to imprison those it convicts.
For the most part, this system works well. The ICC issues a large number of more or less routine requests on an almost daily basis, many of which are complied with. This should come as no surprise: states have signed up to the ICC voluntarily because they believe in its goals and its methods, so it is only natural they should cooperate.
However, international criminal justice, by its very nature, will always create controversy. Justice is blind but the court is surrounded by a fiercely political environment. How could it be otherwise if the cases before the court now involve heads of state, one of whom is in its custody? The court targets those most responsible for atrocities, which may mean, among other things, the powerful and the well-connected. The court’s calls to freeze assets of accused persons to benefit the victims now involve persons suspected of having considerable wealth. More than ten arrest warrants issued by the court are outstanding. All that shows that political, diplomatic and technical support from states is now as crucial as ever.
It is no secret that some of the ICC’s current challenges are linked to the United Nations security council (UNSC). The security council has twice made use of its powers to refer situations to the ICC – in Sudan and Libya. Sudan and Libya have not signed up to the Rome Statute, so whether or not they cooperate depends mainly on their respect for the UNSC acting under Chapter VII of the Charter of the United Nations.
The ICC has no additional mechanisms or powers to deal with these situations, especially in the case of non-cooperation. Achieving consistent treatment and support of the ICC by the UNSC are goals we should aim in the court’s second decade.
While celebrating the ICC’s 10th anniversary, we should have a clear understanding of its place in the international system. During discussions about the court, a common complaint is why the security council is refers some situations in non-states parties to the court while others are not referred.
These questions are addressed with insistence and often, in an emotionally charged atmosphere, to the court’s representatives, ignoring that it is the 15 members of the UNSC that take these decisions.
Many expectations have been laden on the shoulders of the ICC’s new prosecutor, Fatou Bensouda, who some believe should solve all the ICC’s problems in her first year of office. As much as all stakeholders – the states parties to the Rome Statute who elected her foremost among them – respect and admire her, states and the wider diplomatic community should have a visible presence and offer support to the whole court.
Each part of the court carries out its mandate, for example, the prosecutor prosecutes in line with the mandate given to her by states parties and the judges render judgments. Therefore the states that have acceded to the statute should also be mindful of their obligations and their powers. The integrity of the Rome Statute system is very much their responsibility; the criticism of the statute and its provisions should not be addressed to the court but rather to the states themselves, who created its text and adhered to it. Most importantly, the Rome Statute clearly states the responsibility of states to investigate and prosecute statute crimes domestically by having in place appropriate legislation and judicial systems.
The ICC needs friends that are not only passively compliant, but actively supportive. The 121 states parties to the Rome Statute should go on fulfilling the cooperation requests from the court. Our moral obligation as states parties, however, goes further. We must work together with each other, with non-states parties, the ICC itself and our partners in civil society.
We should support the court in our diplomatic efforts, to reproach those who make unfounded allegations against it for political aims and to encourage other states to join the Rome Statute family. We must continue to bear the victims of crimes foremost in our minds. For their sake, we should not shy away from a very frank discussion of issues raised by some about the focus the ICC is taking, including concerns of an increased focus on Africa.
I welcome Monday’s release of the four staff members who have been detained in Libya since 7 June. In wishing the ICC every success for the second decade of its existence, I hope we will do our part to ensure constant and principled support of the ICC in the international community.
Ambassador Tiina Intelmann is Estonia’s Ambassador-at-large for the ICC and serves as the president of the assembly of states parties to the Rome Statute of the ICC
Source: The Guardian (UK)