Some call it the Caucasian court, and that’s not a compliment. But it is the institution which was supposed to bring perpetrators of mass murders, rapes and displacement to justice in the eyes of the world.
In its first case 11 years ago, just four victims watched as proceedings began in The Hague, Netherlands. Those four were the brave pioneers of an international attempt to restrain dictators, despots, and warlords. In the latest case at the International Criminal Court, their numbers have swelled to 4,000. Some observers have told Wikitribune that the expansion in victim involvement is one way the court is rescuing its image.
In the current case, Dominic Ongwen stands accused of 70 counts of war crimes and crimes against humanity, for his role as a commander of the Lord’s Resistance Army (LRA) in Uganda.
More than 4,000 victims of Ongwen’s alleged crimes have been admitted to participate in the trial. That figure stands in stark contrast to the ICC’s first case, against Congolese militia leader Thomas Lubanga, which involved four victims when charges were confirmed in 2006. But by the time arguments closed in 2011, 123 victims were participating according to Redress, an NGO that lobbies for justice for victims of torture.
Observers say that the level of participation and engagement in the Ongwen trial is helping the court fight criticisms that have dogged it through its 15-year history.
“Crimes are about real people and real suffering,” says Carla Ferstman, director of Redress.
“Involving victims in the proceedings in a direct way (not only to give testimony to the prosecutor as a witness) reminds the Court on a daily basis that justice matters, that real people are watching and real people care about what happens,” says Ferstman.
Encouraging broad participation by victims is seen as a sign that the court is facing up to its critics, and tackling perceptions of aloofness cited by those who say it lacks legitimacy.
On the defensive for 15 years
The ICC was established under United Nations supervision in 2002 as a permanent arbiter for humanity’s worst and most damaging crimes. It can prosecute for genocide and war crimes, and heads of state are not immune. Its creation followed the success of the ad hoc tribunals for crimes against humanity committed in Yugoslavia and Rwanda, which were held respectively in The Hague and Arusha, Tanzania. The court is not to be confused with the 72-year-old International Court of Justice, which deals with legal disputes between states and has not been so contentious.
But since its inception, critics have called the permanent International Criminal Court inefficient and easily manipulated. Some said its problems lay in an inherent bias against the developing world and non-Western legal systems; others simply that it was a political tool that was too weak to dispense justice evenly.
After 10 years of existence, the court handed down its first conviction in March 2012, finding Lubanga guilty of conscripting children to fight for his Congolese militia group, the Union des Patriotes Congolais. The court had taken a decade and millions of dollars to hand down a single conviction, and was scorned as illegitimate and woefully inefficient.
The ICC is currently administering three trials and has warrants active against 15 other suspects, but much negative commentary persists.
“I think the court has a major legitimacy issue,” says Kevin Heller, professor of criminal law at the School of Oriental and African Studies in London.
“If you really are a judicial institution that is completely insulated from any political considerations, well then you sure as hell should be going after places like the U.S. and Russia,” says Heller.
The UN Security Council can recommend a situation for investigation by the court’s prosecutor, but any such referral can be vetoed by one of the council’s five permanent members. In 2014, Russia and China both vetoed a resolution to refer potential crimes in Syria to the ICC.
“The problem with the court is that it likes to pretend it is somehow outside of politics,” says Heller. “That it is some sort of judicial institution that [only] follows the evidence. Frankly, I think they do themselves a disservice by that rhetoric.”
The court has also been alleged to be prone to a type of racial profiling. Only African defendants have been prosecuted so far, and investigations are still overwhelmingly focused on that continent. When then-Gambian president Yahya Jammeh referred to the “infamous Caucasian court” last year, the attack had resonance.
Gambia, South Africa and Burundi all announced they would withdraw their memberships of the ICC, saying the court disproportionately targeted Africans. Earlier this year, the African Union backed a non-binding resolution for collective withdrawal from the court’s membership. However these actions have not yet taken place.
Steven Powles QC, head of international law firm Doughty Street International, admits that the court is inherently restricted by political realities. “Ultimately, the ICC can only ever be as successful as the states that are party to it want it to be,” says Powles.
Omar al-Bashir, the president of Sudan, has travelled freely around Africa despite an arrest warrant hanging over his head since 2009. The failure of ICC member-states to even threaten to arrest rather than accommodate him has been a source of significant embarrassment for the court’s proponents.
The court also made itself vulnerable to criticism by trying to run before it could walk, suggests Powles. “The ICC didn’t, I think, have time to take on some smaller cases and grow into its role, build up its credibility, so that it could function effectively, fairly and properly,” says Powles.
Victim support adds credibility to justice
In September 2015, the judge presiding over the Ongwen trial issued a decision clarifying and simplifying the process by which victims can apply to participate.
By gaining the partnership of victims such as in the Ongwen case, the court has started to tackle many of these criticisms.
“Victim participation is also crucial in that it helps give victims some empowerment through the justice process; they are no longer passive observers – those who are talked about or pitied; they are part of the justice process,” says Ferstman. “This is an important shift which is underway; we may not be fully there yet but the principles are crucial to how we understand justice and its role after mass conflict.”
Janine Clark, an academic who worked at the International Criminal Tribunal for the Former Yugoslavia (ICTY), adds that such engagement brings a sense of “local ownership” to trial proceedings.
“Particularly when criminal trials take place thousands of miles away from where the crimes being prosecuted took place, victims can easily become disenchanted and frustrated with the justice process,” says Clark.
The ICC also appears to be broadening its focus: the office of the prosecutor has opened preliminary investigations in Palestine, Ukraine and Iraq and full investigations into alleged crimes in Georgia.
These investigations have the potential to implicate forces belonging to the UK, Russia and Israel – suggesting that the prosecutor at least is not beholden to the Security Council as has been suggested.
Fatou Bensouda, who took over as the court’s lead prosecutor in 2012, has done much to allay criticisms, partly by initiating the investigations mentioned above, risking the ire of major powers such as the U.S. and Russia.
Greater engagement with victims has also coincided with a marked increase in the court’s activity. In October, ICC judges authorized the opening of an investigation into potential crimes in Burundi and several Palestinian NGOs requested further investigations into potential war crimes in Gaza. In August, the court issued a warrant against a Libyan militia commander based largely on social media evidence.
Powles emphasises that the court is in its infancy compared with well-established legal systems that are built on centuries of case law. For now, it is enough that the court survived sustained and withering criticism, and has grown in strength as a result.
“There’s no doubt at all that gone are the days of impunity,” he says. “Gone are the days when people think that they can commit mass human right abuses and there will never be a date that they would never end up before an international criminal court.”