Ignorance is the International Criminal Court’s worst enemy

The President of the International Criminal Court (ICC) believes ignorance is stopping countries from signing up to the Rome Statute, the seminal document which brought the Court into being after it was ratified by 60 countries in 2002.

“My experiences of dealing with some countries have shown that ignorance, misperception and indifference are common reasons why they fail to ratify the Statute,” said Judge Sang-Hyun Song, speaking to Commonwealth News during a visit in early March 2010 to the Commonwealth Secretariat for talks with the organisation’s senior managers and top legal advisers.

In order to take on this lack of understanding, which the ICC President argues is the Court’s “worst enemy”, he insists that a persistent campaign must be fought to boost knowledge and dispel myths about the first permanent treaty-based international criminal court.

For while its creation has been welcomed by many – well over half the UN’s member countries are now on board – it has also been under fire from opponents since it was established.

One criticism is that the Court is unfairly targeting African countries, as the four official investigations it has taken on so far are based in the Central African Republic, the Democratic Republic of Congo, Sudan and Uganda. This argument was further fuelled in December 2009 when the ICC Prosecutor made an application for a formal investigation to be opened in Kenya.

But this attack is cut short by advocates who retort that the criticism only serves to highlight the misunderstanding some have of the Court, as three of the four situations currently under investigation by the ICC were in fact referred to them directly by the governments involved, with the pending application on Kenya having the full co-operation of the Kenyan Government.

Winning over the heavyweights

To date, 110 countries have ratified the Statute – nearly twice as many as back in 2002, when the Court became operational. Despite this leap, just two of the United Nations Security Council’s Permanent five – France and the United Kingdom – have ratified, with China, Russia and the USA digging in their heels. At present just 31 of the Commonwealth’s 54 member countries are on board.

Yet moves in the last few years have given the ICC some cause for optimism. In July 2007 Japan acceded to the Statute - bumping up the number of G-20 signatories to 12 - and over the past year President Barack Obama and his team have allowed Judge Song to feel “cautiously optimistic that in the future the US will eventually join us”.

Judge Song, who was appointed President a year ago, said: “The United States has ended its antagonistic attitude towards the ICC. All of the high ranking officials I have met from the new administration indicated positive engagement with the International Criminal Court.”

Collaborating with the Commonwealth

Implementing ongoing awareness campaigns to stamp out continued ignorance surrounding the Court was one of the topics discussed when Judge Song met Commonwealth Secretary-General Kamalesh Sharma on the historic visit to Marlborough House, the Commonwealth’s global headquarters, on 5 March.

“The Commonwealth Secretariat and the ICC could team up and organise regional seminars on the ICC itself or the broader Rome Statute system to enhance public awareness and knowledge about this newly emerging international criminal justice system,” Judge Song explained.

Mr Sharma welcomed this and other future collaboration, which will add to the broad range of legal programmes the Secretariat conducts in Commonwealth countries.

This work includes developing guides and model legislation to help countries implement laws in complex areas such as anti-terrorism and money-laundering. One such model law helps countries fulfil their obligations under the Rome Statute. Another programme conducted by the Secretariat places legal experts in countries to help them develop their legal and judicial systems. (See the case study.)

Overcoming challenges

As well as discussing possible areas of future collaboration, Judge Song and Mr Sharma also spoke about the ICC’s and the Secretariat’s respective efforts to help countries boost their national judicial systems.

This work, Judge Song says, is critical in helping the ICC overcome several key challenges, one of which is having to take on cases that should be tried at a national level, because some judicial systems aren’t up to scratch.

The ICC is coping with this extra burden, Judge Song says, by working closely with the countries in question. Yet the ICC has very limited capacity to provide technical expertise itself. Judge Song stressed that other key players involved in the ICC system would have to take the lead in building up these countries’ ability to effectively take on complex cases.

Judge Song’s next big challenge is a conference in May and June, which will review the Rome Statute and consider amendments to it. Seven years after it was implemented, this will prove a critical juncture for the ICC as it strives to live up to the daunting task of being the ‘court of last resort’ for the world’s most heinous crimes.

Case study: Anti-corruption prosecutor cracks down on fraudsters

For three years, children attending a private school for the blind in Sierra Leone’s capital were forced on to the streets to beg for food. As well as being allowed to go hungry, their coughs, colds, cuts and bruises were also left untreated as the school funds were no longer channelled into looking after their well-being.

Instead, money from the public purse – intended to support families of children who couldn’t afford to pay the fees – was being siphoned off by the Headmaster. Teachers also became victims of this suffocating corruption when their salaries were not paid.

Eventually a complaint was made to the Anti-Corruption Commission, based in Freetown, which took on the case and successfully exposed the Head’s fraudulent practices.

One of the lawyers involved in this case was Simon Semalemba, a Ugandan prosecutor who was placed in Sierra Leone’s Anti-Corruption Commission between 2007 and 2009 to help fill a gap in expertise in fraud and corruption cases.

“Criminals mustn’t be allowed to get away with it,” said Mr Semalemba. “By convicting them of misappropriating public funds it sends a strong signal to other would-be offenders not to engage in such illegal practices.”

At the time of his departure the Commission was recruiting more legal officers who specialise in fraud and anti-corruption cases and had, according to Mr Semalemba, “built itself up as an effective institution capable of ensuring that criminals intent on stealing public funds are found and brought to justice.”

This long-term assignment was organised by the Commonwealth Secretariat, which places experts – from environmental economists to high court judges – in developing countries to help governments enhance public services in a variety of sectors.

At any one time around 50 such professionals work in a number of technical and professional fields such as trade, public sector development and governance, economic and financial management, health and education, as well as other areas related to a country’s growth and development.

Secretariat Links:

• Rule of Law
• Publication - The Prosecution of International Crimes: A Practical Guide to Prosecuting ICC Crimes in Commonwealth States

Related Websites:

• International Criminal Court