Kuwait Times

Published Date: July 02, 2007
By Stephanie van den Berg

As the International Criminal Court marks its fifth anniversary Sunday experts say the new permanent war crimes court has achieved much but big challenges still lie ahead. "The biggest achievement of the court is the fact that the institution was able to create itself from scratch," said Richard Dicker, the director of Human Rights Watch's international justice program. On July 1, 2002, the court entered into force after more that 60 countries ratified the 1998 Rome Treaty founding the ICC.

Five years later the court has already begun investigating crimes committed in the Democratic Republic of Congo, Northern Uganda, Darfur and the Central African Republic and issued eight arrest warrants. The first accused, Congolese militia leader Thomas Lubanga is in the court's custody awaiting trial. "You have to take into account the reality of the difficulties of investigating these crimes, that are massive in scale, in cases were there is mostly ongoing armed conflict," Dicker said.

The ICC is mandated to prosecute genocide, war crimes and crimes against humanity which include extermination, enslavement, torture, rape or persecution on racial, ethnic or religious grounds. In theory the court's jurisdiction is universal but it can only prosecute if the state where the crime was committed or the state of the nationality of an accused are signatories of the Rome treaty. So far 104 states have ratified the treaty. The ICC can also consider cases referred by the UN Security Council as was the situation with Darfur.

The Darfur investigation, which is conducted mostly outside of Sudan because the government there is not cooperating, lays bare one of the biggest problems of the court. "A big challenge is the issue of cooperation of states with the court. Getting (indicted) people to the court and getting help with investigations," said Mariana Pena of French human rights watchdog FIDH. "The ICC has no police force, it must depend on states on whose territory an accused might be found. That is an enormous liability and vulnerability and an obstacle to the effectiveness of the court," said Dicker.

Another oft-heard criticism from non-governmental organizations is the lack of outreach to the local communities affected by the crimes they are investigating. "The court has to manage the expectations of the local population: they think the court will solve all their problems including poverty," Pena said. According to Dicker in Northern Uganda local leaders are criticizing the ICC on the radio all the time, but locals don't hear from the court directly. "When the ICC is absent, silent, it opens the door to misunderstanding of what the court is about," he said.

The court is also under pressure from the international community to withdraw investigations when peace negotiations are under way, as is the case in Uganda. "For each situation where the ICC is exercising jurisdiction, we can hear voices challenging judicial decisions, their timing, their timeliness, asking the prosecution ... to indict or withdraw indictments according to short term political goals," ICC prosecutor Luis Moreno-Ocampo said in a speech on June 25.

According to international law expert Heikelina Verrijn Stuart the biggest problem for the court "is that it is always working in a political context". Because it depends on the cooperation of states it in turn depends on the political will within these states and the international community, she explained. For that matter the referrals to the ICC by the governments of the DR Congo, Uganda and the Central African Republic are a mixed blessing, said Human Rights Watch. "It underscores the need for the court but also in these countries it risks undermining the appearance of independence and impartiality of the prosecutor and the court," Dicker told AFP. Overall the assessment of five years ICC is positive, the experts said. "But big challenges loom ahead, some for the state parties and some for the prosecutor and the court itself," according to Dicker. - AFP