ICC Update:
Court Progress Continues Five Years On!
by Fergus Watt

It is now more than five years since the Rome Statute creating the International Criminal Court (ICC) came into force July 2, 2002. In a statement marking the occasion, UN Secretary-General Ban Ki-Moon stated that “during the relatively short time of its existence, the court has already established itself as the centrepiece of a system of international criminal justice.”

The ICC is an independent, treaty-based, permanent judicial institution with jurisdiction over persons for genocide, crimes against humanity and war crimes. The court is complementary to national jurisdictions, meaning its jurisdiction can only take effect when national judicial mechanisms are unable or unwilling to act. The court is independent from, but has close historical, legal and operational ties with, the United Nations.

As of November 2007, 105 states have ratified the ICC treaty. The most recent ratification of the treaty (Japan) was described by Bill Pace, Convenor of the NGO Coalition for the ICC, as “a momentous step forward in the campaign to ensure universal ratification of the Statute and a clear sign that the court’s legitimacy is growing in major capitals around the world.”

The ICC is now a major player in the transformation of some of the world’s most intractable conflicts. The ICC prosecutor is currently conducting formal investigations regarding four situations: Uganda, the Democratic Republic of the Congo (DRC), Darfur (Sudan), and the Central African Republic (CAR). The situation of Darfur was referred to the ICC by the UN Security Council; the other three were referred by the DRC, Uganda and the CAR.

Eight arrest warrants have been issued against perpetrators in three of these situations – four members of the Lord’s Resistance Army (LRA) in Uganda, two from the DRC and two Sudanese. However, arrest and judicial proceedings have begun for only one of these eight persons, Thomas Lubanga Dyilo, a former Congolese rebel leader. Preliminary proceedings were conducted in 2007 in the ICC’s pre-trial chamber. His trial, the first before the ICC, should start early in 2008.

The difficulty arresting persons for whom warrants have been issued highlights one of the court’s greatest challenges: its dependence on the cooperation of states. The court does not have the means to apprehend and arrest persons. This responsibility belongs to national governments. Furthermore, as the situation in Sudan demonstrates, the court is frequently active in situations where conflict is ongoing and crimes are being committed. This presents added operational, security and logistical challenges. Although the court has operated largely outside Sudan, it has nevertheless gathered sufficient evidence to issue arrest warrants for two Sudanese. The ICC prosecutor has suggested publicly that more arrest warrants may be issued in the near future.

In nearby Uganda, the ICC has had a profound impact on the peace process. Arrest warrants have contributed to the loss of safe havens for the commanders of the LRA and helped bring them to the negotiation table. The peace negotiations have included demands by LRA representatives that the ICC arrest warrants must be revoked. However, the ICC Prosecutor has made it clear that this is not within his authority.

The CAR referral is noteworthy for having been preceded by a determination by the Cour de Cassation (Supreme Court) that the CAR justice system was unable to carry out effective investigations and prosecutions. This provides important jurisprudence from a state judicial body’s examination of the ICC’s important complementarity principle.

In addition to the need to strengthen international cooperation to implement ICC obligations, another challenge for states party to the ICC treaty in the years to come will be found at the negotiation table, where discussions on a definition of the crime of aggression continue. Aggression is among the crimes within the ICC’s jurisdiction, subject to international agreement on a definition. A Special Working Group on the Crime of Aggression has been conducting ongoing negotiations in anticipation of the 2009 review conference of the Rome Statute for the ICC. Key unresolved issues include the role of the UN Security Council (mandated under the UN Charter to determine the existence of threats to international peace and security), and the specific conduct that qualifies as a crime of aggression by the leaders of a state.

Five years on, the progress made by the ICC is really quite remarkable. The obstacles have been formidable: strong opposition from the world’s most powerful states, and a political climate much less conducive to expanding human rights and the rule of law. The success of the ICC is rooted in the same factors that helped create the court: the determination of supportive middle power governments (still including Canada) as well as organized civil society.

As Bill Pace noted in a recent address to ICC coalition members, “I am reminded on a weekly basis that had the CICC and governments not won adoption of the treaty on July 17, 1998, it would not have been completed in the more turbulent years since that time.”