IJCentral: International Justice Central

An arrest warrant against Muammar Gadaffi, a Khmer Rouge conviction, the arrest of Ratko Mladic, and the opening of three more cases at the International Criminal Court (ICC):  it has certainly been a highly eventful year in the world of international criminal law. Sunday marks International Justice Day, the anniversary of the drafting of the Rome Statute and the creation of the ICC. It is therefore an appropriate point in time to reflect on the dramatic events of the past year. 

In November the trial against former Congolese Vice-President Jean-Pierre Bemba commenced at the ICC, with an all-female panel of judges to determine Bemba’s responsibility for atrocities – most notably mass rapes and murder – committed by forces under his command in the Central African Republic in 2002 and 2003. The post-election violence in Kenya in late 2007 is the topic of another new case before the court, with six high-profile Kenyans, including the son of founding father Jomo Kenyatta, facing crimes against humanity charges. The confirmation of the charges against the six will take place in September, although the accused have already made two voluntary appearances before the Court. The first case on the situation in Darfur is also underway, with the two accused Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus also appearing voluntarily before the court to face war crime charges. No date has been set for the start of the trial, but proceedings should commence in the coming months.

The spotlight was on the ICC following a dramatic series of events involving the escalating violence in Libya, with the Security Council in March making its second ICC referral, with the support of the United States. The Office of the Prosecutor leapt into action, announcing the opening of an investigation and, within a matter of months, seeking arrest warrants against Muammar al-Gaddafi, his son Saif al-Islam, and the government’s chief of intelligence, Abdullah al-Sanussi. However, the court faced criticism for the warrants, with the accusation that it was merely inflaming the burgeoning civil war, and decreasing the possibility of Gaddafi voluntarily stepping down. With the conflict appearing deadlocked, despite NATO intervention, the prospect of arrests seems unlikely in the immediate future.

Meanwhile, the court’s “most wanted”, Sudanese president Omar al-Bashir, continued to travel without fear of arrest. Despite being signatories of the Rome Statute, and therefore under a responsibility to give effect to the ICC’s arrest warrants, Kenya, Sudan and Djibouti welcomed Bashir in the past year. However, in June, high profile publicity from Amnesty International put adequate pressure on Malaysia, where Bashir was due to attend a conference, to lead to a cancellation of the trip. The last year also saw the ICC welcome five new state parties: Seychelles, People’s Republic of Bangladesh, Saint Lucia, Republic of Moldova and Tunisia.

But international justice is not just the ICC. The International Criminal Tribunal for the former Yugoslavia has received a significant resurgence in public interest since the high profile arrest and extradition of former General of the Serbian forces, Ratko Mladic. Since his initial appearance in June, Mladic appears to have taken a leaf out of the Milosevic book of delaying tactics, with repeated outbursts, complaints and requests. The trial looks set to be a long one. The International Criminal Tribunal for Rwanda issued judgments in a number of cases, the most high profile being that of Pauline Nyiramasuhuko, the first woman to be convicted of genocide. Meanwhile, the Extraordinary Chambers in the Courts of Cambodia (ECCC) delivered its long awaited judgment in the case against Comrade Duch, the prison warden of the infamous Toul Sleng torture facility during the reign of the Khmer Rouge in the 1970s, sentencing him to 30 years in prison. The second trial at the ECCC, against four high ranked members of the regime, Nuon Chea, Ieng Sary, Khieu Samphan, and Ieng Thirith, began with opening statements last month.

In the meantime, the Special Courts for Sierra Leone and for Lebanon are winding down and starting up respectively. The last trial of the Sierra Leone court, that against former Liberian president Charles Taylor, heard closing statements in February and March, with a judgment due later this year. The trial was the centre of a media storm last summer when celebrity witnesses Naomi Campbell and Mia Farrow took to the stand before a packed gallery, to testify on events surrounding a party held by Nelson Mandela in 1997, during which Taylor allegedly presented Campbell with a ‘blood diamond’. Last month the Special Court for Lebanon released indictments in its investigation into the assassination of former Lebanese Prime Minister Rafiq Hariri. The names of those indicted were leaked within hours, revealing that the Court is targeting high profile members of Hezbollah, which naturally provoked outcry and threats of retaliatory violence from the armed group.

Looking ahead to the next year in justice, the focus will stay for the most part on the arrest warrants faced by Muammar Gadaffi and his son and advisor. The Libyan leader has condemned the court and rejected its authority, and the question of who will execute the arrest warrants remains unclear. The results of investigations into the post election violence that took place late last year in Cote d’Ivoire will be revealed, followed by possible arrest warrants for those deemed most responsible for the clashes between the supporters of ousted president Laurent Gbagbo and of new leader Alassane Ouattara. Meanwhile, the ICC will finally wrap up its first case, that against Thomas Lubanga of the Democratic Republic of the Congo, charged with conscripting child soldiers. The closing arguments of the prosecution and defence will take place at the end of August and a judgment will be expected in the following months. This will be the only trial to conclude during Luis Moreno-Ocampo’s seven year term as Chief Prosecutor, with his mandate due to conclude in 2012. The hunt for a replacement is already underway, with an election due to take place before the end of the year.

The next year will be challenging for the Court, primarily in terms of legitimacy. It has faced criticism for its allegedly anti-Africa basis (the Court has focused entirely on events in the continent) and has come under fire from the African Union, who has threatened to pull out of the Court entirely. The steps taken in the coming months will play a crucial role in maintaining legitimacy in Africa and some say the election of an African prosecutor and the opening of cases elsewhere would go some way towards alleviating the concerns of African leaders.  The court also faces challenges created by an increase in workload, yet no expansion of its budget. To cope with an ever growing number of cases, the court will ask for increased funding from state parties when it presents its 2012 budget in the coming months, despite the budget supposedly having zero growth from year to year.

In any event, this year undoubtedly marked an important and exciting year in the development of international justice, with increased attention being rightly shown to the work of the ICC, the Tribunals and Special Courts.

Could 2011 be the year of the Responsibility to Protect?

IJ Central asked me to write a short piece about international law. How it’s fared in the year gone and what the immediate future might hold for it. I was thinking about crucial events in the calendar of international justice and I settled on the Responsibility to Protect (R2P in the language of those who have the inclination to read UN documents for fun) and sovereignty. I want to start by saying It has been a subtle but promising year for the R2P doctrine.  For those of you aren’t entirely sure what R2P is think of it as the idea that the primary responsibility for preventing crimes against humanity falls upon the state. But when a state cannot prevent such crimes or is the perpetrator the responsibility falls to the international community. In these cases, after a number of criteria have been met the community are allowed, and in fact have the duty, to intervene in atrocities. 

Before the end of 2010 Iraq syndrome had R2P in intensive care following its invocation as one of the reasons the United States and United Kingdom invaded the country to topple Saddam Hussein. Writers like myself tutted and shook our heads in disappointment. The most pragmatic solution to humanitarian intervention was at death’s door. A principle sickened by improper use and now the subject of scorn and derision.  But luckily we’ve been able to find a pulse. From Libya to Cote D’Ivoire the United Nations is managing to cobble together some consensus on the use of military force for resolve conflicts. All R2P needs is one success to resurrect it as a viable tool of international politics. But success in Libya is still far off and as for Cote D’Ivoire the stakes were less high, the warring factions had been wavering on the edge of crimes against humanity.

So why is R2P part of international justice? Why does it belong there? So often the people that perpetrate crimes that lead to arrest warrants from the International Criminal Court have committed the crimes that merit intervention based on the R2P doctrine. R2P is a crucial part of supporting international law and making it enforceable. The ICC can issue arrest warrants all it wants but sometimes force is necessary. International law can’t defend itself after all and an arrest warrant isn’t going to stop genocide.

So what is the future for R2P? Whilst of course I want to say that the international community has rediscovered its liberal international roots, I don’t want to raise anyone’s hopes. The Secretary General of the UN, Ban Ki Moon, opened an Interactive Dialogue on R2P this week saying we need to sharpen our tools for prevention and protection. I’m glad to see the issue is still on the agenda. But if we’re not proactive that is where it might stay, on paper.  I think we need to separate a stylised future of R2P from a realistic one. A stylised image might not be one where interventions based on R2P are frequent but where they are consistent, where the international community doesn’t pick and choose which conflicts it feels it wants to intervene in for some otherwise unknown reasons. A realistic picture of the future is one where R2P is the best case scenario but bogged down in indecision and squabbling at the United Nations. When countries like Germany abstain on intervention it dilutes the perceived severity of atrocities and provides a reason for other countries to fail in their responsibility and to neglect those most in need.

I am sad to say that the conditions that warrant R2P will continue to occur and the ICC will continue to seek to punish those who caused them. But without a stronger and more assertive R2P principle, the natural partner in law enforcement, the arrest warrants will keep on coming and may start to appear ineffectual.  So whilst I think prospects for R2P are looking up I think that anything more than extremely cautious optimism would just lead to disappointment. International law won’t go much further without a robust means to defend and extend it and to seek out and bring to justice those who flout it. In the year to come I’d like to see a country champion R2P but the odds are against me. Fragile coalitions are the only ones willing to treat the patient so at the very least Libya needs to be a success or the doctrine will end up back on life support.

Greetings from Gulu, northern Uganda and happy International Justice Day to readers of IJCentral!

2. Living with International Politics
The vast majority of the challenges which the ICC faces boil down to how the Court functions in a highly charged international political context. With two situations referred to it by the UN Security Council, the ICC’s relationship with the Council has never been more important. Although the UN Security Council has committed to issuing politically aggressive case referrals, it has become increasingly obvious it has left the ICC “hanging” when it comes to follow through on its investigations - referring difficult situations to the Court but doing little else to support or enhance the Court’s initiatives. Complicating matters further is that the ICC, rather than the Security Council, is the typical target for blame for the failure to achieve peace in Darfur and Libya.

Developments in the relations between the Court and the African Union (AU) will also be interesting to watch over the next year. While it is important not to treat the AU as a monolithic entity – sharp divisions exist regardless of “unanimous” communiqués – the increasingly popular line that the ICC “targets Africa” cannot be ignored. It has salience amongst many people here, regardless of its validity. Much of the heightened and negative rhetoric from key members and individuals in the AU are aimed specifically at the ICC’s Prosecutor – Luis Moreno-Ocampo. Jean Ping, the AU’s spokesman, has even said that the AU is not against ICC justice but against Moreno-Ocampo justice.

3. The Arab World and the ICC
As I have written elsewhere, if the first decade of the ICC has been defined by its relations with African states, the next ten years may well be defined by its relations with Arab states. The Arab Spring has unleashed a remarkable demand for justice. The Court recently held a regional conference in Doha, is investing significantly in training Arab lawyers to act as prosecution and defense counsel, and, of course, now has two of its primary investigations in Arab states – Sudan and Libya.

4. Electing a New Prosecutor
Despite the efforts of human rights groups to guarantee that the new Prosecutor is selected on the basis of merit rather than political criteria, this will not affect the view of ICC member-states. It is naive to believe that the calculus of many, if not most, states in this context will not be fundamentally political. Further, it is naive to believe that the ICC Prosecutor has been an apolitical figure himself. Surely apolitical figures don’t write in major newspapers to declare a President guilty of genocide before he has been convicted! I have outlined the political criteria that may affect the decision-making of ICC member-states. The most likely scenario, as it now stands, is that Fatou Bensouda is selected as the next ICC Prosecutor. As a Ghanaian, Bensouda satisfies the AU’s demand to have an African Prosecutor; she is a woman which would bring gender balance to the position; as the current Deputy Prosecutor of the ICC, her election would bring continuity; and, by all accounts, Bensouda is more than capable of holding the post. Bensouda, in short, may satisfy both the political and apolitical requirements of the ICC’s post. If selected, look for international human rights groups to say she earned it on the basis of her experience and capability while diplomats and scholars recognize and admit the politics behind her selection.

5. Money, Money, Money
As I have previously written, unless the Court is diverted from its current financial trajectory, the ICC is headed for a crisis that will almost certainly affect its capacity to conduct its work and thus undermine its effectiveness and legitimacy. The boon of new cases in front of the ICC have to be paid for. Unless member-states and perhaps even the UN Security Council alter their attitude to funding the Court, how much money the ICC has at its disposable will become an admissibility threshold and selectivity issue: only when the Court has enough money will it accept new cases.

Making predictions is never easy and many wise people decide to abstain from doing it. Two things that I can guarantee, however, are that the next months will be a fascinating and critical time for the ICC.

Happy International Justice Day!

Mark Kersten

Today, July 17th, the world is celebrating International Criminal Justice Day to commemorate the anniversary of the adoption of the Rome Statute, the founding treaty of the International Criminal Court (ICC), in 1998. While the Rome Statute, like any treaty, is far from being perfect, it is in fact the most important instrument presently available in the international criminal justice system to prevent mass atrocities and to bring justice to victims of heinous crimes, namely, crimes against humanity, war crimes, and genocide.

The nunca más instrument

This new system of international justice, established by the Rome Statute and represented by the ICC, has increased the global impetus to fight impunity and represents a promise made to future generations, a vow to help turn the words “Never again” into a reality.  It has also put forward high standards for gender crimes, fairness of proceedings, and victims’ rights.

By ratifying/acceding to this important treaty, states voluntarily commit themselves to ensuring that they prosecute perpetrators of the most serious crimes committed on their soil or by their nationals. When a country joins the ICC it does not exclude any other means of justice. The ICC is a Court of last resort and states that become states parties accept that if they are unable or unwilling to prosecute these grave crimes the ICC shall apply its jurisdiction to bring those criminals to justice. However, it is important to note that the ICC cannot try atrocities that were committed prior to July 2002, the date of the Rome Statute’s entry into force.

It is fundamental to understand that the primary means of justice for states are their own national justice systems. The ICC contributes to strengthening the current international justice system and the rule of law, and particularly recognizes, through the fundamental principle of complementarity that is at the core of the Rome Statute, the role of states in ensuring global rule of law by investigating and trying crimes.

My wish on this symbolic day is to see the Court and the Statute finally grow to fulfill the hopes and expectations we have placed on them. And for this to happen, in addition to getting more states to join the Court, states and international bodies have to turn words into action by increasing their financial, political and technical cooperation.

A Universal ICC

Of the 193 member states to the UN, 116 are States Parties to the ICC. Most of the countries in the world have accepted this new system of justice. Achieving universal acceptance of the Rome Statute is important for many reasons. Firstly, with each ratification the ICC’s jurisdiction grows, thus enhancing its long-term effectiveness and legitimacy. This helps to strengthen international justice and national justice systems, as states must enact legislation in conformity with the principles of the Statute.

Unfortunately, although some states parties have made important strides in this regard, a significant number of countries are yet to implement domestic legislation criminalizing ICC crimes and establishing cooperation provisions.

Furthermore, states parties to the ICC can participate in the meetings of the governing body of the Court – the Assembly of States Parties (ASP) – where states make important decisions, including voting for judges and other Court officials. In December 2011, the ASP will hold elections for a new Chief Prosecutor, six new judges, and other officials. These decisions are crucial to the functioning and legitimacy of the Court and will lead to increased geographical representation at the Court, ensuring that it is truly a global institution.

Increasing Cooperation with the Court

In order to be effective and truly fight against global impunity, the Court needs be able to rely on the cooperation it can receive from states. This is one of the cornerstone principles for its operations. The ICC has no police force and no prisons. Per the Statute, states are responsible for arresting and surrendering ICC suspects to the Court. In addition, the ICC needs cooperation from states in gathering evidence, providing security to victims, gaining access to crime sites, among many others.

Thus, by adopting cooperation mechanisms, states will ensure the enforcement of the Court’s work, decisions, and rulings.  Effective cooperation mechanisms have to be implemented at a national level and can be also promoted at a regional level.

Rome wasn’t built in a day

Some argued it would take decades for states to agree on a Statute giving an international establishment jurisdiction over the gravest crimes known to humanity. Once it was adopted, others said it would take even more time for the Court to come into existence. They were all wrong: the Statute was adopted in 1998 and entered into force in 2002 after achieving the required threshold of 60 ratifications.

Since its establishment, 116 states are members of the Court, where there are currently six active investigations. Furthermore, the ICC has publicly issued 18 arrest warrants (two of which are against Heads of State who allegedly committed crimes against their own nationals) and nine summonses to appear; three trials are ongoing and one of them is due to conclude this year.

In making these wishes, I am also asking states, critics and skeptics for a little bit of patience. Just as Rome was not built in a day, the Rome system still needs time to grow.

The ICC will not stop all atrocities from happening but it will plant a question for potential perpetrators: What if the ICC comes for me?

—-

Mariana Rodriguez-Pareja is a Communications expert and a human rights advocate with a special interest in international justice. Twitter handle: @maritaerrepe.

Like many Latin American countries, El Salvador has had a history of human right violations and the issue of dealing with the past is a conflictive topic which continues to divide Salvadorian society. The Central America country was ravaged by a 12 year-civil war which concluded with the adoption of a peace agreement in 1992 “Chapultepec Peace Accords”. It is estimated that 80,000 people were killed during the Salvadoran civil war.

The adoption of the Rome Statute of the International Criminal Court (ICC) was described in 1998 by the former Secretary General, Kofi Annan, as a gift of hope to future generations and a giant step forward in the march towards universal human rights and the rule of law. The Rome Statute sets up a new system of international law, constitutes one of the most important instruments in the fight against impunity and an effective deterrent for future crimes. 

As of July 1, 2011, 116 States have ratified the Statute, including 15 out of 19 Latin American countries. There is an explicit degree of commitment and participation at the ICC from high level officials from Latin America: the ICC Chief Prosecutor, Luis Moreno-Ocampo, comes from Argentina and Judges Elizabeth Odio Benito from Costa Rica, Rene Blattmann from Bolivia, Sylvia Steiner from Brazil and Silvia Fernández de Gurmendi from Argentina.

South America is one of the most represented regions in the Court. From Central America: Honduras, Costa Rica and Panamá are parties to the ICC. However, Cuba, El Salvador, Guatemala and Nicaragua are not yet members. Therefore, we can state that the non-ratification of the Rome Statute by these countries is an exception to the practice of the continent.

With the ICC fully operational and conducting investigations in Uganda, Darfur, Libya and the Democratic Republic of Congo, what is delaying El Salvador’s ratification? Political factors that make passing of such legislation difficult, as well as fears of legal persecution among an influential sector of society, play a major role.

The fear in parts of Salvadorian society that the ICC could investigate the crimes committed during the war remains as one of the most important obstacles to overcome in the ICC process. Although these political motivations are unfounded and there are no grounds for such international proceeding to take place, the distrust towards the system persists.

Another matter of constant debate in El Salvador has been the internal procedure for the ratification of the treaty, namely if a constitutional amendment was required or not. If the Executive was to consider such reform necessary, due to the lengthy procedure along with the high-number of votes required to amend the Constitution in a strongly fragmented parliament, in practice it would mean that El Salvador will not join the ICC in the foreseeable future.

The other option would be for the Executive to include interpretative clauses in the ratification bill, addressing constitutional controversies such as life in prison and the surrender of nationals to the ICC, among others. Although the final decision on what the internal ratification process will be remains to be seen, what looks to be clear is the political will of the government to file a draft bill before Congress this year.
A Hope for the Future

High ranking ICC officials visited El Salvador more than once in 2010. Those visits provided a boost in the process, which has been stalled for the past 2 years. The Minister of Foreign Affairs highlighted that these activities would set the course “to pursue the phase of consultations and technical support by experts, organizations and national institutions interested and specialized on the topic, with a view to enrichening the discussion and paving the way for a more fruitful phase of legislative debates […] on the accession or non-accession of El Salvador to this important instrument which guarantees human rights at a planetary level”. This was the most important sign of political will expressed publicly by any Salvadorian official. Naturally, political willingness from the government will play a very important role in the ICC process.

Another difficulty in the drive towards ratification in El Salvador relates to the application of clauses such as the non-statutory limitations of international crimes, the legal validity of amnesties and the restriction of immunities of high-ranking government officials.

On this issue, it is important to be very clear. As stated above, the Rome Statute is an instrument for the future and it is legally impossible for the ICC to assume jurisdiction over crimes perpetrated in the Salvadorian civil war. The human rights violations perpetrated in the 1980’s and early 1990’s are issues that must be addressed by Salvadorian society and its judiciary, if it applies.

Despite the lack of comprehensive legislation on International Criminal Law in the country, many of its core principles are already binding on the State through the 1969 American Convention on Human Rights and the rulings of the Inter-American Court of Human Rights. This regional tribunal has significantly contributed to the prosecution of crimes against humanity, especially enforced disappearances and torture. Although the cases examined by the Inter-American Court are different from those that fall within the jurisdiction of the ICC, the Rome Statute has been a valid interpretative tool to determine State duties regarding the protection of human rights. Therefore, many of the legal concerns that certain sectors fear are legally and judicial binding upon States, including El Salvador. 

In conclusion, many of the constitutional and legal controversies regarding the Rome Statute in El Salvador have been already addressed by other Latin American countries - most of them already ICC member states.

In the end, the entry into force of the ICC consolidated the incorporation of International Law and the enforcement of human rights.

The Rome Statute system is an exceptional mechanism that will only act against the most serious crimes and it’s the duty of the national courts to address crimes committed within their territory. The Court will only act, if national courts are unwilling or unable.

The ratification of the Statute contributes to strengthen the judicial system and the rule of law, and it is benefit that we should all strive together. In conclusion, the Rome Statute is not perfect, but it is in fact the most effective instrument to prevent atrocities from the past to happen again: it’s the nunca más instrument.

——-

Original article in Spanish for Asuntos del Sur
Mariana Rodriguez Pareja is a Communications Expert and Human Rights Advocate. Twitter: @maritaerrepe
Salvador Herencia Carrasco. LL.M. University of Ottawa, Legal adviser of the Andean Commission of Jurists. E-mail: sherencia@cajpe.org.pe

Imagine the following scenario:

Assume that the people of Libya and Syria are all represented by one individual each who is charged with requesting that the human rights violations and atrocities in their respective nations are investigated by the ICC. Since neither Syria nor Libya are members of the ICC, both of these representatives need to make their requests to the UN Security Council. Both representatives are sitting in the waiting room, preparing to make their case. It is decided that Libya will make its presentation to the Security Council first because their crisis occurred first and, well, everyone is itching to get rid of that embarrassing Gaddafi fellow. The representative makes his case and comes back into the waiting room with a big smile and says: “Success! Just got a resolution passed. The ICC’s going to investigate Libya!” At hearing these inspired words, the Syrian representative’s hopes rise. He thinks to himself: “if they refer crimes against humanity and war crimes in Libya to the ICC then they must refer the crimes in Syria too! After all, a crime against humanity is a crime against humanity is a crime against humanity.” The Syrian representative gets up and approaches the glass door to the Council. Right before he reaches it, however, a sign is flipped from “Open” to “Sorry, closed for business”. Furiously, the Syrian representative requests to know why he cannot give his presentation to the Council. Finally, someone takes him aside and informs him: “Look, they won’t tell you this to your face, but there’s no money to investigate crimes in Syria. All the money’s been spent.”

Of course, this story could never happen as I’ve described it. However, it conveys a key truth that is too rarely discussed: there is only so much money for justice at the ICC and it is running out.

The Council of Foreign Relations describes how the ICC is funded as follows:

“The ICC, as an independent body, is funded primarily by its member states. The contributions of each state are determined by the same method used by the UN, which roughly corresponds with a country’s income. Additional funding is provided by voluntary government contributions, international organizations, individuals, corporations, and other entities. The United Nations may provide funding if it is approved by the General Assembly and is related to a “situation” referred to the court by the Security Council.”

In neither of the two cases referred to ICC by the UN Security Council (Sudan in 2005 and Libya in 2011) did the Council provide funding, leaving it instead up to individual member states to cover the costs.

Further, key members of the governing body of the Court, the Assembly of States Parties (ASP), consisting of the member-states of the ICC, have been reluctant, to say the least, to expand the Court’s budget. With the exception of the Netherlands’ rate of inflation, the ICC’s budget is intended to have zero growth from year to year.

The problem, then, is rather simple: the number of investigations and cases in front of the Court has grown but the Court’s resources to investigate and prosecute those cases remain stagnant. The danger looms: the Court may only be able to respond to some cases on the basis that it only has money for some and not other crises. But is it not morally reprehensible that money is a limiting factor in who gets justice?

Budget issues aren’t particularly ‘sexy’ but if the Court cannot meet the demand for international criminal justice, it is hard to see how it can remain a legitimate international institution. As its critics often point out, the Court is not cheap. In order to function effectively, the Court must pay for witness protection and travel, defense and prosecution counsel, field-based investigations, not to mention the arduously long hearings and architecturally opulent new headquarters. None of these things come cheap and for the Court to achieve some degree of justice, as Jonathan O’Donohue points out:

“It is unrealistic to expect the ICC to grow in response to the demands of the international community and at the same time demand that the associated spending be absorbed without degrading the quality of the Court’s work.”

O’Donohue is Legal Adviser for Amnesty International’s International Justice Project and leader of the Coalition for the International Criminal Court’s team of NGOs on budget and finance.

The ICC is already hampered by selectivity issues: it can only investigate those “most responsible” for international crimes; it focuses exclusively on individual guilt, neglecting critical collective and social factors of conflict and crime; it is only able to investigate crimes after July 1, 2002; and it can only investigate those situations under its jurisdiction or which are referred to it by the Security Council. If its funding does not expand, budgetary capacity will be added to this list. Worrying for the ICC’s advocates is that the fault for this new, financially driven selectivity will be attributed to the ICC rather than the international community which refuses to fund the Court adequately.

A particularly cynical view of this problem might suggest that some members of the international community are actively seeking to undermine the ICC by putting it in an untenable financial position. Perhaps the Security Council is throwing the Court to the wolves by referring cases to it without much in the ways of political or financial support for it. Similarly, perhaps disgruntled and financially constrained ASP member-states are doing the same. Whether intentional or not, both the Security Council and the ASP member states who refuse to expand the Court’s budget are effectively undermining the ICC’s legitimacy and effectiveness.

The Convenor of the CICC, William Pace, has picked up on this issue in a recent press release:

“We are seriously concerned that governments, including members of the UN Security Council, have on one hand increasingly engaged the Court as a major actor in peace and security management, for example in referring a situation like Libya, and on the other hand are ready to make decisions that could undermine the Court’s ability to deliver meaningful justice.”

There is also another political danger of a financially strapped Court: that states voluntarily provide the Court with large sums of money and gain a degree of influence or control of elements of the ICC’s work. This might mean getting first consideration of particular jobs at the Court. But, more worryingly, it might also be favourable investigations of only one side of a specific conflict, something the ICC has already been hampered by. It is worth considering a domestic analogy in this context. In democratic, rule of law abiding states, Supreme Court judges are often the highest paid civil servants in order to guarantee that they have no incentive to be swayed by financial benefits. Similarly, the ICC must have sufficient funds to guarantee that influencing its work through large donations is not even a theoretical possibility.

While the increase in demand for justice across the world, particularly in ‘Arab Spring’ states, has been hailed as historic by many, the supply may yet come to disappoint even the most fervent supporters of the ICC.

The reality is that the effects of funding - or lack thereof - of the ICC is a largely unexplored area. While it is sure to become an issue in the near future, international NGOs, groups, academics and, yes, bloggers, have failed to raise awareness about the potential for selectivity on the basis of funding. Instead of building understanding and preventing this potential financial crisis, we are instead reacting to it. Regardless, drumming up awareness is better done late than never.

The lofty and aspirational rhetoric of the men and women responsible for making the ICC a reality vehemently declared that the peoples of the world are demanding justice and that now is the time to serve this demand with a permanent court. It would be not just a shame and a blemish on the Court’s record but a fundamental injustice if the supply of international criminal justice could not meet its demand because of money.

This piece was originally posted by the author at .

Imagine the following scenario:

Assume that the people of Libya and Syria are all represented by one individual each who is charged with requesting that the human rights violations and atrocities in their respective nations are investigated by the ICC. Since neither Syria nor Libya are members of the ICC, both of these representatives need to make their requests to the UN Security Council. Both representatives are sitting in the waiting room, preparing to make their case. It is decided that Libya will make its presentation to the Security Council first because their crisis occurred first and, well, everyone is itching to get rid of that embarrassing Gaddafi fellow. The representative makes his case and comes back into the waiting room with a big smile and says: “Success! Just got a resolution passed. The ICC’s going to investigate Libya!” At hearing these inspired words, the Syrian representative’s hopes rise. He thinks to himself: “if they refer crimes against humanity and war crimes in Libya to the ICC then they must refer the crimes in Syria too! After all, a crime against humanity is a crime against humanity is a crime against humanity.” The Syrian representative gets up and approaches the glass door to the Council. Right before he reaches it, however, a sign is flipped from “Open” to “Sorry, closed for business”. Furiously, the Syrian representative requests to know why he cannot give his presentation to the Council. Finally, someone takes him aside and informs him: “Look, they won’t tell you this to your face, but there’s no money to investigate crimes in Syria. All the money’s been spent.”

Of course, this story could never happen as I’ve described it. However, it conveys a key truth that is too rarely discussed: there is only so much money for justice at the ICC and it is running out.

The Council of Foreign Relations describes how the ICC is funded as follows:

“The ICC, as an independent body, is funded primarily by its member states. The contributions of each state are determined by the same method used by the UN, which roughly corresponds with a country’s income. Additional funding is provided by voluntary government contributions, international organizations, individuals, corporations, and other entities. The United Nations may provide funding if it is approved by the General Assembly and is related to a “situation” referred to the court by the Security Council.”

In neither of the two cases referred to ICC by the UN Security Council (Sudan in 2005 and Libya in 2011) did the Council provide funding, leaving it instead up to individual member states to cover the costs.

Further, key members of the governing body of the Court, the Assembly of States Parties (ASP), consisting of the member-states of the ICC, have been reluctant, to say the least, to expand the Court’s budget. With the exception of the Netherlands’ rate of inflation, the ICC’s budget is intended to have zero growth from year to year.

Despite calls, little action has been taken to investigate alleged crimes in Syria.

The problem, then, is rather simple: the number of investigations and cases in front of the Court has grown but the Court’s resources to investigate and prosecute those cases remain stagnant. The danger looms: the Court may only be able to respond to some cases on the basis that it only has money for some and not other crises. But is it not morally reprehensible that money is a limiting factor in who gets justice?

Budget issues aren’t particularly ‘sexy’ but if the Court cannot meet the demand for international criminal justice, it is hard to see how it can remain a legitimate international institution. As its critics often point out, the Court is not cheap. In order to function effectively, the Court must pay for witness protection and travel, defense and prosecution counsel, field-based investigations, not to mention the arduously long hearings and architecturally opulent new headquarters. None of these things come cheap and for the Court to achieve some degree of justice, as Jonathan O’Donohue points out:

“It is unrealistic to expect the ICC to grow in response to the demands of the international community and at the same time demand that the associated spending be absorbed without degrading the quality of the Court’s work.”

O’Donohue is Legal Adviser for Amnesty International’s International Justice Project and leader of the Coalition for the International Criminal Court’s team of NGOs on budget and finance.

The ICC is heading towards a funding crisis.

The ICC is already hampered by selectivity issues: it can only investigate those “most responsible” for international crimes; it focuses exclusively on individual guilt, neglecting critical collective and social factors of conflict and crime; it is only able to investigate crimes after July 1, 2002; and it can only investigate those situations under its jurisdiction or which are referred to it by the Security Council. If its funding does not expand, budgetary capacity will be added to this list. Worrying for the ICC’s advocates is that the fault for this new, financially driven selectivity will be attributed to the ICC rather than the international community which refuses to fund the Court adequately.

A particularly cynical view of this problem might suggest that some members of the international community are actively seeking to undermine the ICC by putting it in an untenable financial position. Perhaps the Security Council is throwing the Court to the wolves by referring cases to it without much in the ways of political or financial support for it. Similarly, perhaps disgruntled and financially constrained ASP member-states are doing the same. Whether intentional or not, both the Security Council and the ASP member states who refuse to expand the Court’s budget are effectively undermining the ICC’s legitimacy and effectiveness.

The Convenor of the CICC, William Pace, has picked up on this issue in a recent press release:

“We are seriously concerned that governments, including members of the UN Security Council, have on one hand increasingly engaged the Court as a major actor in peace and security management, for example in referring a situation like Libya, and on the other hand are ready to make decisions that could undermine the Court’s ability to deliver meaningful justice.”

Money for justice? Bad idea.

There is also another political danger of a financially strapped Court: that states voluntarily provide the Court with large sums of money and gain a degree of influence or control of elements of the ICC’s work. This might mean getting first consideration of particular jobs at the Court. But, more worryingly, it might also be favourable investigations of only one side of a specific conflict, something the ICC has already been hampered by. It is worth considering a domestic analogy in this context. In democratic, rule of law abiding states, Supreme Court judges are often the highest paid civil servants in order to guarantee that they have no incentive to be swayed by financial benefits. Similarly, the ICC must have sufficient funds to guarantee that influencing its work through large donations is not even a theoretical possibility.

While the increase in demand for justice across the world, particularly in ‘Arab Spring’ states, has been hailed as historic by many, the supply may yet come to disappoint even the most fervent supporters of the ICC.

The reality is that the effects of funding – or lack thereof – of the ICC is a largely unexplored area. While it is sure to become an issue in the near future, international NGOs, groups, academics and, yes, bloggers, have failed to raise awareness about the potential for selectivity on the basis of funding. Instead of building understanding and preventing this potential financial crisis, we are instead reacting to it. Regardless, drumming up awareness is better done late than never.

The lofty and aspirational rhetoric of the men and women responsible for making the ICC a reality vehemently declared that the peoples of the world are demanding justice and that now is the time to serve this demand with a permanent court. It would be not just a shame and a blemish on the Court’s record but a fundamental injustice if the supply of international criminal justice could not meet its demand because of money.

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Note: Thanks for the generous help from the AMICC and CICC, especially Matthew Heaphy and Toby Hanson, in providing information for this post.

This post first appeared on Justice in Conflict.

The event was supposed to be held in 2010, but Sudan’s tireless efforts to convince Qatar to cancel the event could only persuade the Qatari government to postpone it indefinitely. One year later, on 24 May 2011, Qatar, in cooperation with the League of Arab States and the International Criminal Court (ICC), sponsored the first-ever Regional Diplomatic Conference on the International Criminal Court. The two-day gathering and first major event of its kind offered a platform for officials and civil society in the region to discuss issues on international justice and the ICC.

Qatar’s leader, Sheikh Hamad Ben Khalifa Al Thani, together with Judge Sang-Hyun Song, President of the ICC, delivered the opening remarks of the conference, held in Doha, Qatar. The fact that Qatar hosted the event – and that the Emir delivered the welcoming remarks - is seen as a positive development for the Gulf region and for the Arab World after a period of ill-founded hostility towards the Court.

Qatar invited Bashir

This is a huge step forward considering that in 2009 the same country refused to arrest Omar al- Bashir, President of Sudan and ICC indictee, when he visited the country for the annual Summit of Arab-South American countries. Although Qatar is not a state party to the ICC, it had a legal obligation to arrest al-Bashir, which stems from United Nations Security Council Resolution 1593 – the resolution refers the Darfur situation to the ICC and requires the cooperation of all UN Member States.
The vast majority of South American presidents openly rejected al-Bashir’s participation in the Summit and refused to sit at the same table or take pictures with a suspected criminal alleged to have committed genocide, war crimes, and crimes against humanity against his own people in the Darfur region of Sudan—charges that are included in the arrest warrant issued against him by the ICC in 2009. Only Hugo Chavez, President of Venezuela, openly supported al-Bashir (and invited him to Caracas) despite the fact that Venezuela was the first Latin American country to ratify the Rome Statute.

A positive step toward fighting impunity

While the Regional Conference on the ICC was not the first event on the ICC celebrated in the Middle Eastern Region (NGOs throughout the region have held many events on the ICC and international justice, especially in Lebanon and Egypt), no other event has had such political support and impact.

The Emir of Qatar spoke about impartiality, equality before justice and fair trials, and underscored Qatar’s interest in the “repression of the crimes of aggression, crimes against humanity, war crimes and the crime of genocide” and in bringing perpetrators of these crimes to justice “to preserve international peace and stability and to respect human dignity.” During the Conference, the Emir also met privately with ICC Chief Prosecutor Luis Moreno-Ocampo, and although the subjects of their discussion were not made public, all parties agreed it was a friendly and cordial meeting.

Furthermore, the conference provided a platform for the different stakeholders to engage in fruitful discussions on the ICC process and Arab States were urged to seize the current regional momentum calling for good governance by joining the Court and the global fight against impunity. It must be recalled that Arab states were actively involved in the establishment of the Court, particularly the Egyptian, Kuwaiti, Jordanian, and Syrian delegations that participated in the Rome Conference and the Preparatory Commission meetings. 

Moreover, despite disagreement on some issues, most Arab officials acknowledged that expanding the Court’s membership in the region is vital in order to achieve global legitimacy of the Rome Statute.  While recognizing the Court as a positive tool to render justice and fight impunity, Arab leaders also criticized the ICC and accused it of having double standards, pointing to the fact that it has not acted in Palestine.

However, Court officials, including the Prosecutor, are, in fact, conducting an assessment on whether or not the Court can exercise jurisdiction over Palestine; the decision is scheduled for the coming months. It is indeed frustrating that the ICC Office of the Prosecutor is so keen to act in certain instances but not in others. The pace at which it is conducting its preliminary examinations in Colombia, Georgia, Afghanistan, is disconcerting as it only slows down the judicial process and narrows victims’ access to justice.

Gulf Cooperation States

On 14 June 2011 top diplomats of the Cooperation Council for the Arab States of the Gulf (GCC) met in the Saudi Red Sea city of Jeddah for their second regular meeting of the year. Qatar is a founding member of the GCC and despite media reports in 2009 indicating that the GCC countries were looking into collectively joining the ICC, none of them is yet party to the Rome Statute.

However, the GCC took both a positive and interesting step in the fight against impunity. For the first time in nearly two years, the final communiqué issued by the Foreign Ministers of Arab Gulf States did not include a reference to the ICC and the arrest warrant issued against Omar al-Bashir. Since 2009, all statements issued upon conclusion of the meetings included a paragraph rejecting the ICC arrest warrant against the Sudanese president. It is unclear why the condemnation was not included, but given the ongoing human rights abuses in Darfur - and continued fighting in the Abyei region and Nuba Mountains - it stands to reason that the GCC recognized the need to impose pressure on Bashir by supporting, tacitly at least, the rule of law. While it still may take some time for some Arab states to uniformly condemn international crimes in Darfur, this is a clear step forward.

In addition, GCC states that are part of the Libya contact group endorsed the referral of the situation in Libya to the ICC last February. Also, at the 2010 ICC Review Conference held in Kampala, Uganda, Dr. Muhammad Abdullah Alansari, Undersecretary of the Ministry of Justice, stated “Kuwait is seriously considering the accession to the Rome Statute of the ICC.” Possible prospective states in the region that may join the ICC include Kuwait, UAE, Oman, and Qatar, and signatories to the Rome Statute include Bahrain, Kuwait, Oman, UAE, and Yemen. All of these developments are representative of the significant reshaping of the political landscape in the region. 

Qatar Becomes a Focal Point

On 20 June 2011, Qatari Attorney General Dr. al-Marri visited The Hague and met with ICC officials including President Judge Song, Registrar Silvana Arbia and Chief Prosecutor Moreno-Ocampo to discuss the recommendations of the Doha Conference. Dr. al- Marri stressed that the Conference was the first step in the right direction, adding that he was looking forward to continued co-operation between the Court and Qatar. During their meeting, the officials praised the frank and direct dialogue between Qatar and the different ICC organs, and further highlighted the platform that the Conference offered for dialogue and exchange of views among participants.

In addition, an agreement was signed designating Doha, Qatar, as the ICC’s regional focal point for the training of Arab lawyers on the ICC.  It is therefore imperative for the Court to conduct necessary outreach and to ensure regular visits and meetings between representatives of the ICC and key stakeholders in order to discuss the Court’s work and clarify these particular topics.

Arab States and the ICC

Currently, only 4 of the 22 Arab League states are states parties to the Rome Statute of the ICC: Comoros, Djibouti, Jordan, and most recently Tunisia (having acceded on 24 June 2011). However, with the revolutions in Tunisia, Egypt, Syria and protests throughout the Arab World – dubbed the “Arab Spring” – there has been renewed interest from Arab States in the ICC. 

At present, ICC judges presiding over the Libya situation have issued three arrest warrants for Libyan leader Muammar M. Gaddafi, his son and Government Spokesman Saif Al-Islam Gaddafi, and Director of Military Intelligence Abdullah Al-Senussi, for alleged crimes against humanity committed in Libya since 15 February 2011.

In Bahrain, King Hamad bin Isa Al Khalifa established an independent panel to investigate the violence occurring in the country. Interestingly, two experts of the panel have experience with the ICC: Dr. Philippe Kirsch and Professor Cherif Bassiouni. Dr. Kirsch was the Chair of the Rome Conference of the ICC and is the former President of the Court. Professor Bassiouni was the Head of the Drafting Committee of the ICC Statute and one of the most renowned academics on the ICC. Both of them were also part of the UN panel that investigated the violence in Libya. This announcement comes after a Bahraini NGO sent a communication to the ICC on alleged crimes commited during the February- March revolts.

Elections for judges and other key officials will be held in December 2011. Given that the region comprises four states parties, it would be a monumental step to elect an Arab judge in the Court, particularly to respect geographic representation at the Court. However, since there is no “Arab regional group,” nationals from Arab states will have to be nominated through either the Asia or the Africa regions.  At present, no Arab judge has been nominated.

It’s about time

The Rome Statute requires regional representation based on states parties. If more Arab states join the Court, there will be greater representation, participation and understanding in the region. Opening channels of discussion and exchange of information would be a great way (and possibly the best way) to overcome existing obstacles between the Court and the region. 

The odds that Qatar or Kuwait will follow Jordan, Djibouti, Comores and Tunisia are still uncertain. Nevertheless, by opening clear dialogue and exchanging points of view with Court officials, Qatar is paving the way for greater cooperation with the ICC. 

The commitment seems clear and promising.

Mariana Rodriguez-Pareja is a Communications expert and a human rights advocate with a special interest in international justice. Twitter handle: @maritaerrepe.

National laws are a tangible expression of the limits of behaviour that society is willing to tolerate. Anything beyond these limits is prohibited, subject to state sanction and ostracism from society. The same applies across borders to the international arena. International law exists to prohibit acts that are so heinous, so offensive to our collective human consciousness that they cannot be tolerated.


International society has demanded after events that have shocked and frightened us that institutions be set up to punish and seek out those who offend us, those who go beyond the limits that human kind has designated. These limits are more relaxed, less clear or strident than those at a national level. International society has a propensity to agree on very little yet when it does, it does so emphatically. We’ve agreed that it is unacceptable to commit genocide, for example.


Ratko Mladic is an international criminal whose crimes define international law. From ethnic cleansing to deportation and persecution he exists as a caricature of all that our international society deems unacceptable. Furthermore, he continues to offend our collective will by flouting the rules and procedures of the institutions we created to defend and enforce international law. Most notably, his refusal to cooperate with the judges in the International Criminal Court in the Hague.


Under no circumstances must we forget he is there standing trial for crimes against humanity. When he murdered Bosniaks in the 90s it wasn’t just a crime against his victims it was a crime against our collective human consciousness. We can’t forget that it is as a result of our international view that genocide is unacceptable that he is there. We are part of this process. As an international society we can’t allow his disrespect for our collective agreement (considering how little we all agree on, this is even more important) to go unnoticed. If he is simply forgotten then he has won, he’s proved that humanity isn’t so offended by his actions after all. If his crimes are translated into opaque legalese few can understand or his trial bogged down by appeals and lack lustre evidence from governments (I am looking at the Serb government when I say that) then what can we expect from our fragile system?


We have to keep talking about international law. We have to keep writing about human rights and about those who have yet to be brought to justice by our system. Our legislators need to keep asking probing questions of our governments, our judges need to keep laying precedent upon precedent in support of our unified revulsion for crimes against humanity.


Teachers need to talk about it with their pupils. You need to talk about it with your friends and family. Bring it up at your workplace and get a debate started. We can’t let people like Mladic win. We’re all part of this and if it’s allowed to fall out of the public eye or interest then those with the power to do more to catch war criminals and bring them to justice will have no pressure to continue and increase their efforts.

The British broadcaster, Channel 4, last week aired what it described as a ‘forensic investigation’ into the civil war in Sri Lanka, which culminated in a bloody conflict in 2009 between the LTTE (or Tamil Tigers) and the Sri Lankan military (under command of the government) in which over 40,000 people died. Condemning the UN and the international community for failing to protect civilians before, during and after the war, Jon Snow (one of Britain’s most highly respected journalists) states at the beginning of the programme, in no uncertain terms, its prosecutorial objective:

“For the last two years Channel 4 has been compiling our own dossier of video evidence and eyewitness accounts. We believe this footage represents devastating evidence of war crimes and crimes against humanity. And a powerful case for bringing those guilty of these crimes to justice.”

The evidence then follows, much of it shot on mobile phones, almost entirely uncensored and unwavering in the horror it depicts. The audience is essentially being asked to sit in a courtroom, with Jon Snow acting as prosecutor, where nothing, no matter how violent or explicit, is omitted from the case. For many viewers this task will prove too gruelling. But the graphic nature of the footage is, in this case, valid; it is evidence, which cannot be selected according to our sensibilities and thresholds for violence. Emerging out of this evidence is a punishing account of a conflict for which Channel 4 delivers an unflinching case against the Sri Lankan military (and to some extent the Tamil fighters) for having committed crimes against humanity and war crimes. Sri Lanka’s Killing Fields positions itself as an important stepping-stone in the fight to hold real trials. The compilation of footage and interviews might also serve as admissible evidence should those trials one day comes to fruition. Channel 4, and Jon Snow, should be commended on this unabashed style of prosecutorial journalism, which recognises the inextricable link between documentation and the quest for justice and human rights. Where there is video evidence and eyewitness accounts there is an obligation to respond according to the accepted standards set by the Geneva Conventions, to which we are all accountable. When the international community fails to prevent such crimes, and then fails to deliver justice, it is up to the media to restore our basic obligation to our own humanity.

At the core of this exercise in ‘prosecution by documentary’ is the belief outlined by one human rights lawyer who speaks in the programme. He describes the nature of the crimes we are witnessing. “Unpunished crimes,” he says, “leave wounds that return and prevent societies from healing, from moving forward.” In the community of international justice, this is a commonly held belief and is presented in Channel 4’s documentary more for the consideration of a generic audience. For those who are familiar with international justice Sri Lanka’s Killing Fields should encourage us to think instead about the ways in which documentary footage and the ever-universalising ability to document will affect justice seeking now, and in future conflicts. Hard evidence in the form of video footage is becoming increasingly prevalent and it is often available publically, crimes are less easily covered up, witnessing is more persistent. Efforts must now be made to convert these valuable assets into real justice. That is where Jon Snow and his team have made an important, and progressive contribution.

Other commentators will, and have already, called the programme bias, full of falsity, manipulated and articulated by the “hidden paws” of Tamil terrorists (as one writer suggests). I can only concede that the evidence presented by Channel 4 in Sri Lanka’s Killing Fields would obviously need to be corroborated and substantiated by witness testimonies and the opinions of forensic pathologists if it ever found its way into an actual courtroom. But those seeking to pervert the course of justice have always made these types of accusations, and will continue to make them. That they fear the presentation of this evidence at independent trials speaks volumes about their motives and line of argument. Justice has political enemies, just as it has political ramifications. This is nothing new and certainly no reason to ignore such horrific crimes, whoever may have committed them.

The program can be viewed in its entirety on YouTube, by following this link: Sri Lanka’s Killing Fields